Cross-examination suggesting that a witness's evidence is the result of honest but mistaken reconstruction from memory satisfies s 108(3)(b) of the Evidence Act 1995 (NSW), permitting the admission of prior consistent statements, even where fabrication is not alleged. A trial judge's directions equivalent in substance to a Shepherd direction will satisfy the requirement even where the judge initially indicated no such direction was needed. In a wholly circumstantial murder case, the practical impossibility of an intruder acting without the occupant's complicity can constitute powerful circumstantial evidence of guilt.
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