Under the amended s 97A(5) of the Evidence Act 2011 (ACT), the mere passage of time between charged offences and tendency evidence does not, of itself, constitute exceptional circumstances sufficient to rebut the presumption of significant probative value; something more is required. The distinction between performing sexual acts on a child and viewing child exploitation material depicting the same acts on children of the same age and gender is a difference without distinction for the purposes of tendency reasoning. The removal of 'substantial' from s 101(2) lowers the threshold for admitting tendency evidence, and the risk of jury misuse can be addressed by appropriate directions.
The full text is available to signed-in members, including the 3 later cases that cite this judgment.
2 of the 3 citing cases carry a classified treatment. How each court treated it is available to signed-in members.