Similar fact evidence admitted merely to prove the collateral issue that an accused had conversations of a similar nature with the complainant, without being probative of the offences charged, will not satisfy the admissibility threshold because its probative value cannot exceed its prejudicial effect. The word 'with' in s 47 of the Crimes Act 1958 (Vic) requires actual physical contact with the victim and does not extend to indecent language over the telephone. Where similar fact evidence inadmissible against a co-accused dominates a joint trial and contains highly prejudicial hearsay about that co-accused's sexual predilections, a miscarriage of justice will be found that cannot be cured by judicial direction.
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