In multi-count sexual offence trials where evidence of uncharged acts is led, the trial judge must specifically warn the jury (a) that charged offences can only be proved by evidence relating to them, not extraneous conduct, and (b) that the jury must not reason from propensity. Where uncharged acts are inextricably intertwined with charged acts as part of the same course of conduct, it is erroneous to direct the jury that a lesser standard of proof applies to the uncharged acts. The question whether uncharged acts forming part of the res gestae that may also constitute propensity evidence must be assessed under s 398A remains open.
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