Evidence that the accused has engaged in discreditable or criminal acts, or is otherwise of a discreditable character is presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on the balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.
In assessing the probative value of the evidence, consideration should be given to such things as:
· the strength of the evidence that the discreditable or criminal act occurred;
· (1) the connection between the accused and the similar act event, and (2) the extent to which the discreditable or criminal act supports the inferences sought to be made, relating to a specific issue in the case (a.k.a. the "connectedness" of the evidence to the "questions in issue"); and
· the extent to which the matters it tends to prove are at issue in the proceedings (the materiality of the evidence).
In assessing the risk of prejudice caused by the evidence, consideration should be given to such things as:
· "moral prejudice," being the risk that the evidence will be used to draw the prohibited inference that the accused is the kind of bad person likely to commit the offence charged; and
· "reasoning prejudice," which includes the risk that:
» the trier of fact may be distracted from deciding the issue in a reasoned way because of the inflammatory nature of the proposed evidence;
» the trier of fact may become confused about what evidence pertains to the crime...