Where an accused is independently identified by complainants in relation to some but not all counts, and there are striking similarities between the offences, the identification evidence on the counts where identification was made is admissible as similar fact evidence under s 31A of the Evidence Act 1906 (WA) to support identification on the remaining counts. Phillips v The Queen is confined to cases where the evidence in question (such as consent) proves only the mental state of other complainants and does not prove any disposition of the accused. A trial judge's failure to correct a prosecution submission overstating the identification evidence does not necessarily occasion a miscarriage of justice where proper similar fact directions are given and the prosecution case is otherwise strong.
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