Where there is a real possibility of concoction, collusion or contamination, tendency and coincidence evidence under the Evidence Act 2008 (Vic) will lack the significant probative value necessary for admission under ss 97, 98 and 101(2). The prosecution bears the burden of persuading the trial judge that the evidence should be admitted despite the possibility of contamination. A trial judge must not make her own assessment of the credibility of evidence of collusion but must determine only whether there is a reasonable possibility that a rational jury might regard it as providing a credible explanation for similar features. Priest JA's suggestion that relationship/context evidence should be treated as tendency evidence under s 97 was expressly not endorsed by the majority, who noted that departure from existing authority would require a five-judge bench.
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