Where context relationship evidence (uncharged acts) is admitted in a sexual offence trial, the trial judge must give both a substitution direction (the charged offences can only be proved by evidence relating to them) and a propensity warning (the jury must not reason that because the accused engaged in prior sexual conduct, he is the kind of person likely to have committed the charged offences). A substitution warning alone is insufficient. These directions are required even where the uncharged acts evidence was adduced by the defence in cross-examination rather than led by the Crown in chief. The trial judge must also not direct the jury that the uncharged acts evidence is 'not a factor for your consideration' where the defence relies on that evidence to challenge the complainant's credibility.
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