In Victoria, where s 398A of the Crimes Act 1958 has displaced the Pfennig test, the ratio of R v HML does not directly apply, but trial judges should ordinarily direct juries that uncharged sexual acts must be proved beyond reasonable doubt before being used as a step in reasoning to guilt. For uncharged non-sexual acts, no such direction is required unless the judge perceives a real risk of the jury using the evidence as an important step in reasoning to guilt. Section 37 of the Evidence Act 1958 does not apply to cross-examination directed at a witness's capacity to perceive and recall events (as opposed to cross-examination relevant only to injuring character), and a trial judge exercising the s 37 discretion must have regard to the questions proposed, not the anticipated answers.
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