When assessing whether to exclude evidence under s 137 of the Evidence Act 2008 (Vic), a trial judge cannot assess the credibility or reliability of the evidence but must take it at its highest, even where the evidence was initially elicited by leading questions from the informant. Cross-examination of a complainant about unrelated sexual activity under s 342 of the Criminal Procedure Act 2009 (Vic) requires substantial relevance to a fact in issue under s 349, and where the complainant was an adult at the time of complaint, an intervening sexual experience does not have substantial relevance to the ability to fabricate an allegation.
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