In assessing probative value under s 137 of the Evidence Act 1995, the trial judge must assume the inferences most favourable to the Crown will be drawn and assess potential probative value on that basis, without regard to the availability of any competing inference or alternative explanation. This approach is distinct from the assessment under s 98, where alternative explanations arising on the evidence may be considered. A complainant who telephones an accused at police instigation to discuss the alleged offence is not thereby an 'agent of the State' where the conversation would have occurred in substantially the same form without police intervention. Evidence of a complainant's sexual interest in a person other than the accused is irrelevant to the question of consent to sexual activity with the accused.
The full text is available to signed-in members, including the 48 later cases that cite this judgment.
14 of the 48 citing cases carry a classified treatment. How each court treated it is available to signed-in members.