Where sexual offence charges involve markedly different types of conduct (e.g., penile-anal rape versus non-penetrative fondling) accompanied by qualitatively different surrounding circumstances (brute force versus incremental/seductive behaviour), the evidence will not be cross-admissible as tendency evidence, and the prejudicial effect of the more serious evidence is likely to substantially outweigh its probative value under s 101(2). However, where the underlying modus operandi is the same and differences in the level of offending are attributable to different victim responses rather than different methods, the evidence remains cross-admissible.
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