Under the Evidence Act 2001 (Tas), the [name withheld] 'no rational explanation other than guilt' test does not govern the admissibility of tendency or coincidence evidence; instead, s 101(2) requires a balancing exercise on the facts of each case. The possibility of concoction remains relevant to that balancing exercise, but must be a reasonable possibility based on factual foundation, not merely speculative. A witness's inability to recall making a prior statement constitutes unfavourable evidence under s 38(1)(a) and is inconsistent with the prior statement for the purposes of s 38(1)(c).
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