Evidence of complaint wrongly admitted under s 66 of the Evidence Act 1995 (because the complaints were not 'fresh in the memory' as construed in Graham v R) will not necessarily occasion a miscarriage of justice where the complaint evidence is vague, unspecific, and of relatively minor import compared to the remaining evidence. The potential admissibility of such evidence under s 108(3) does not cure the defect of wrongful admission under s 66, because admissibility under s 108(3) does not necessarily entail admission, given the discretionary requirement for leave and the different directions that would be required. A trial judge must direct the jury on intoxication where the issue arises on the evidence, regardless of defence counsel's wishes.
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