Evidence of uncharged sexual acts tendered as 'context' or 'relationship' evidence is admissible only where a specific issue in the trial has been identified that the evidence may explain or resolve; it is not sufficient that the evidence merely discloses aspects of the relationship between the accused and the complainant. The trial judge must ask 'to what issue in the trial does the evidence go' before determining admissibility under ss 135 and 137 of the Evidence Act 1995. Where the Crown disavows tendency but the evidence is in substance used for tendency reasoning through counsel's address or judicial directions, a miscarriage of justice will result.
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