Where identity is a fact in issue in a sexual offence trial involving multiple complainants, tendency evidence showing the accused's sexual interest in a class of persons cannot rationally affect the assessment of whether the accused was the particular offender. The trial judge must identify all facts in issue, including identity, when assessing the cross-admissibility of tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW). Where tendency evidence is admitted in a joint trial involving separate groups of complainants, the jury must be directed that they must be satisfied beyond reasonable doubt of the accused's identity as the perpetrator of one group of offences before using that evidence as tendency evidence for the other group. The majority verdict procedure under s 55F of the Jury Act 1977 (NSW) is available as a response to a 'rogue juror' without first requiring a Black direction or the discharge of the juror.
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