In Victoria, appellate review of a trial judge's ruling on the admissibility of tendency evidence under s 97 of the Evidence Act 2008 proceeds on the Warren v Coombes basis (the appellate court decides for itself whether the evidence was admissible), not on the House v The King basis (review for error in the exercise of discretion). An admission of a single instance of sexual misconduct with one complainant when drunk does not have significant probative value as tendency evidence in relation to offences against a different, much younger complainant. Where historical sexual offence convictions are set aside because the Crown cannot prove the temporal or age element of the offence charged, the Court of Appeal may enter substitute convictions for lesser offences under s 277(1)(c) of the Criminal Procedure Act 2009.
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