Cross-examination of an accused on a false evidentiary foundation intensifies the unfairness of questions that tend to reverse the onus of proof, and the combination may constitute a substantial miscarriage of justice even where individual errors might not. Evidence that is capable of conveying that an accused engaged in sexual conduct with another person at a particular location, introduced without a tendency notice, is inadmissible and potentially potent tendency evidence that cannot be cured by the absence of a judicial direction. In cases of diametrically opposed accounts with no substantive independent evidence, the respondent bears a difficult burden to demonstrate that such irregularities made no difference to the outcome.
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