Where a prior inconsistent statement of an initial complaint witness is not available to defence counsel at trial due to inadvertence, and that statement would significantly undermine the complaint evidence in an oath-against-oath sexual offence case, a miscarriage of justice is established if there is a significant possibility the jury would have acquitted. The bolstering effect of initial complaint evidence on complainant credibility is often significant, and its destruction or undermining through prior inconsistent statements can be decisive. The adequacy of forensic disadvantage directions under s 34CB must be assessed in the context of the particular trial, including its length and the nature of the evidence.
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