Evidence of statements or conduct of persons not called as witnesses is inadmissible where it is merely nebulous and speculative rather than of direct and immediate relevance to a fact in issue; the prosecution cannot tender such evidence on a 'prophylactic' basis that the jury might consider it consistent with a prosecution theory. When admitting discreditable conduct evidence under s 34P(2)(a) of the Evidence Act 1929 (SA), the trial judge must undertake separate assessments of probative value and prejudicial effect, and must have regard to s 34P(3) as to whether the permissible use can be kept sufficiently separate from the impermissible use. Violent relationship evidence in domestic assault prosecutions is admissible to show the nature of the relationship (not as tendency evidence) and is relevant to both identity and intent.
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