The 'eliminate or substantially weaken' test under s 295(3)(a) of the Criminal Procedure Act 2009 (Vic) is not met where the prosecution case on the charged offence rests on direct evidence of the complainant that is unaffected by the excluded evidence relating to a different offence on which the accused was acquitted. Where a judge-alone trial has been granted partly on the basis that it would enable cross-examination on topics that could not fairly be explored before a jury, the prosecution may be precluded from opposing that cross-examination at the retrial. A forensic decision not to cross-examine on a topic before a jury does not preclude further cross-examination on that topic at a judge-alone retrial where the decision was driven by the prejudicial effect the evidence would have had on the jury.
The full text is available to signed-in members, including the 1 later case that cites this judgment.