Where relationship evidence in sexual offence cases is admitted otherwise than as tendency evidence and is not indispensable to proof of guilt, the criminal standard of proof (beyond reasonable doubt) does not apply to that evidence. Jury directions that convey the permissible use of relationship evidence as background/context and clearly instruct against tendency reasoning will satisfy the requirements of Gipp, even without the more elaborate formulation proposed by the defence. The Beserick formulation of the two bases for admissibility of relationship evidence is confirmed as entrenched in NSW law.
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