In sexual assault cases involving significant delay in complaint, the trial judge must direct the jury on the presumed prejudice to the accused caused by delay, even where no actual prejudice is identified and no such direction is sought by defence counsel. The obligation to ensure a fair trial is not circumscribed by the defence strategy adopted. Directions regarding evidence admitted under s 108(3) of the Evidence Act 1995 (prior consistent statement to rebut fabrication) must be carefully distinguished from directions appropriate for recent complaint evidence admitted under s 66(2); conflating the two constitutes an error of law.
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