Evidence found during a second search of premises, where a thorough first search found nothing and the accused was in custody between searches, is not necessarily excluded under s 137 of the Evidence Act 2008 (Vic). Applying [name withheld] v The Queen, the probative value assessed 'at its highest' may still outweigh the danger of unfair prejudice where it remains open on the evidence that the items were present but missed during the first search, particularly where the evidence forms one piece of a circumstantial jigsaw.
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