Phillips v The Queen does not preclude the admission of propensity evidence under s 31A of the Evidence Act 1906 (WA) for limited purposes (such as assessing the manner and circumstances of sexual activity and post-offence behaviour) even where the evidence may bear indirectly on the issue of consent, provided the evidence is not admitted to prove that one complainant's lack of consent establishes another's lack of consent. Where the accused admits sexual activity occurred, HML v The Queen and R v Sadler are distinguishable and the Shepherd principle governs the standard of proof for uncharged acts — they need not be proved beyond reasonable doubt unless they constitute an indispensable link in the chain of reasoning to guilt. A 10-year sentence imposed on an 80-year-old offender with onset of dementia constitutes a crushing sentence within the totality principle.
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