A prosecution case may be 'substantially weakened' by the exclusion of evidence even where the case remains strong, but leave to appeal an interlocutory ruling will be refused where the argument for exclusion lacks seriously arguable merit. The residual considerations under s 297(1)(c) of the Criminal Procedure Act 2009 (Vic) include whether the proposed ground of appeal has seriously arguable merit. Record of interview admissions relevant to one formulation of rape under s 38(2) of the Crimes Act 1958 may also be indirectly probative of an alternative formulation.
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