HCA 7 is noteworthy on three points.
The amazing legislation in Western Australia governing the admissibility of propensity evidence.
Section 31A(2) of the Evidence Act 1906 (WA) provides:
Differing analyses of relevance
The facts of the case on appeal require attention to illustrate this point, but more generally the case illustrates how senior judges can differ on what is in issue in a case. The majority (Gummow, Crennan, Kiefel and Bell JJ) held that the evidence in contention was not relevant to any issue, and a retrial was ordered, whereas Heydon J dissented, holding that there were live issues on which the evidence had probative value.
Stratagems and spoils (smile, Bard)
Heydon J draws attention to the significance of concessions by the defence on the scope of admissible prosecution evidence. The majority did not consider that the case required examination of this.
A clever defence tactic is to spoil the prejudicial effect of detailed prosecution evidence by conceding that aspects of it are not in issue. Where there is no issue, the theory goes, the point is not a matter on which proof is needed, or indeed permitted. Evidence must be relevant to a matter in issue.
Heydon J recognised that this was not an appropriate case to explore these stratagems, as no such techniques were used here.