Where an accused's conviction is set aside on fresh evidence grounds and the remaining charge is closely intertwined with charges on which the accused was acquitted, the forensic difficulties of adducing evidence of those acquittals on retrial — including the risk of putting uncharged acts before the jury, the complexity of directions, and the risk of jury speculation — may weigh decisively in favour of entering a judgment of acquittal rather than ordering a new trial. Section 91 of the Evidence Act 2008 (Vic) is not an absolute bar to the admission of evidence of prior acquittals.
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