The admissibility of evidence often turns on its probative value. Probative value measures the strength of connection between the challenged evidence and the fact in issue. It may be assessed with differing degrees of atomism/holism. The High Court, at common law and under the Uniform Evidence Law, from Pfennig v The Queen to Phillips v The Queen to TL v The King, has adopted an extremely holistic approach – the trial judge should assess the challenged evidence together with other evidence. This introduces incoherence and uncertainty into the law. It contradicts the ‘importance’ admissibility criterion, under which the presence of other prosecution evidence may work against admissibility. The High Court’s holism appears to be the product of a fallacious conflation of proof and probative value. It risks the trial judge, at admissibility, trespassing on the jury’s fact-finding province.

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(2024) 47(3) UNSWLJ 842: https://doi.org/10.53637/EFAP4355