Section 161A of the Criminal Procedure Act 1986 (NSW) permits evidence to be adduced as both tendency evidence and as proof of an element of the same charge, and the jury must not be directed that such evidence needs to be proved beyond reasonable doubt insofar as it is relied on as tendency evidence. However, where charged and uncharged acts of varying seriousness are relied upon as tendency evidence, trial judges should consider whether a Shepherd direction under s 161A(3) is appropriate. Separately, where a juror is discharged after exposure to inadmissible material and the remaining jurors give inconsistent accounts of their exposure, the appellate court must independently assess whether the continuation of the trial occasioned a risk of substantial miscarriage of justice, and curative directions may be insufficient where the extent of jury exposure is uncertain.
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