Evidence of an adult accused's sexual interest in a child complainant constitutes tendency evidence within s 97 of the Evidence Act 2008 (Vic) and requires a tendency notice or s 100 dispensation order before it can be used for that purpose. A traditional anti-propensity direction (not to reason that the accused is 'the type of person' likely to have committed the offences) does not foreclose more specific tendency reasoning that the evidence demonstrates a sexual interest making the charged acts more likely. Where a jury is invited to use uncharged acts as evidence of sexual attraction without a tendency notice, this constitutes a substantial miscarriage of justice if the tendency reasoning could have been significant in the guilty verdicts.
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