19 Subsequently, all the previous law was considered by Simpson J in R v Fletcher [2005] NSWCCA 338; 156 ACR 308. The other members of the Court, McClellan CJ at CL and Rothman J, agreed with Simpson J, and I am going to read some passages from her Honour's judgment starting at paragraph 33:
It is also useful to articulate the exercises involved in a decision to admit or reject evidence tendered as tendency evidence under s 97(1). Some precision in that analysis, also, is required. It is necessary to bear in mind:
(i) the actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact (in this case, the jury).
(ii) even where the judge is the tribunal of fact, it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in s 97(1)(b) which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence "to be adduced" and implicitly by the use of the subjunctive "would not" in s 97(1)(b).
(iii) whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of "probative value" contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (that is capable of rationally affecting) the probability of the existence of a fact in issue;
(iv) the task that a trial judge undertakes under s 97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, that is, if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible.
[35] Two things emerge from the above. One is that the s 97(1) exercise is predictive and evaluative and is not a scientific exercise with a clear or rigid answer, or with only one correct answer - reasonable minds will, on occasions, arrive at different results following the evaluative and predictive exercise. The other is that, where evidence "to be adduced" is relevant to the exercise, the exercise must be undertaken on the assumption that the evidence will be given substantially as anticipated.