Where evidence has been ruled inadmissible at a first trial, that ruling carries over to a retrial under s 205 of the Criminal Procedure Act 2009 (Vic) unless the retrial judge makes a specific decision to depart from it. The inadvertent leading of such evidence at a retrial constitutes an error or irregularity capable of producing a substantial miscarriage of justice, particularly where the trial is finely balanced. The exposure of a jury to a judge's competence questioning of a child witness does not necessarily cause a miscarriage of justice where the judge expressed no opinion on the witness's truthfulness and the material was substantially identical to material already properly before the jury.
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