Where an accused has been acquitted of charges on the basis that the Crown failed to rebut the doli incapax presumption, evidence of the underlying conduct may be admissible as tendency evidence to prove a sexual interest in children and a tendency to engage in sexual acts, but it cannot be characterised as evidence of a tendency to 'sexually assault' or commit criminal acts, as that would controvert the acquittal. The language used in tendency notices, Crown addresses, and jury directions must carefully distinguish between a tendency to engage in sexual conduct and a tendency to commit sexual offences.
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