Where a complainant's evidence of uncharged sexual acts is inherently improbable — particularly where it describes repeated sexual conduct in the near presence of a third party whose unchallenged evidence is that she would have detected it — the improbability of the uncharged acts may cast doubt over the entirety of the complainant's evidence, including charged conduct, even though the uncharged acts need only be proved on the balance of probabilities. The failure of the prosecution to challenge defence evidence under s 38 of the Evidence Act 2008 (Vic) that contradicts the complainant's account is a significant factor in the appellate assessment. However, the dissent demonstrates that the characterisation of the complainant's evidence — whether it describes a precise recurring pattern or a more general course of conduct — may be determinative of the outcome.
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