In historical sexual offence cases, the combination of extreme delay (40+ years), loss of the recipient of a complaint (preventing testing of complaint evidence used to bolster credit), loss of prior police statements, and the relatively minor nature of the charges may render a trial unacceptably unfair, warranting a permanent stay. Tendency evidence in sexual offence cases that amounts to no more than evidence of mere propensity — reflecting commonplace features of sexual offending such as digital penetration, touching over clothes, offending against family members, and offending when others are nearby — lacks the significant probative value required by s 97 of the Evidence Act 2008 (Vic). Prosecutors are warned against overloading indictments with unnecessary charges and uncharged acts, and must provide meaningful assistance to the trial judge in articulating the basis for cross-admissibility of tendency evidence.
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