Director of Public Prosecutions v Wilson (a pseudonym)

The Director of Public Prosecutions (DPP) sought leave to appeal an interlocutory judgment of a primary judge concerning the admissibility of tendency evidence under section 97A of the *Evidence Act 2011* (ACT). The DPP contended that the primary judge erred in finding exceptional circumstances under section 97A(5) to admit the evidence, which would otherwise be inadmissible under section 97A(1). The respondent, Wilson (a pseudonym), argued that the standard of review for the primary judge's decision under section 97A(4) was limited to whether there was an error of law or fact, as established in *House v The King*, rather than a review for correctness.

The central legal issue before Mossop J was the appropriate standard of appellate review to be applied to a primary judge's determination of "exceptional circumstances" under section 97A(5) of the *Evidence Act 2011* (ACT). Specifically, the court had to decide whether the appellate court should review the primary judge's finding for correctness or whether it was confined to the more deferential standard of review applicable to discretionary judgments under *House v The King*. This determination was crucial for assessing whether the primary judge had correctly exercised their discretion in admitting the tendency evidence.

Mossop J held that the standard of review under section 97A(4) of the *Evidence Act 2011* (ACT) was one of correctness, not the limited standard of *House v The King*. His Honour reasoned that the phrase "exceptional circumstances" in section 97A(5) did not confer a broad discretion in the same way as other discretionary powers. Instead, it involved an evaluative judgment that was amenable to appellate review on the merits. The court found that the primary judge had misconstrued the nature of the "exceptional circumstances" required by the provision, leading to an error in the exercise of their power. Consequently, leave to appeal was granted, the appeal was upheld, and the primary judge's order admitting the tendency evidence was set aside.