Evidence of a tendency to have a sexual interest in a specific complainant (as distinct from a class of persons) can possess significant probative value under s 97(1)(b) of the Evidence Act 2008 even without evidence of a willingness to act on that interest, where the tendency bears on central disputed issues such as the accused's knowledge of the identity of the person being touched. The McPhillamy observation that 'generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value' is not an immutable rule.
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