Where a tendency notice is drafted so as to confine the second tendency to specific sexual acts (e.g., sexual touching and digital penetration), evidence of other sexual acts (e.g., penile/vaginal intercourse) that falls outside the notice cannot be used to support that tendency. If such evidence is nevertheless heard at a joint trial, the direction requiring the jury to use it for one tendency but completely disregard it for another faces a significant prospect of being ineffective, warranting exclusion under s 101(2) and severance of the relevant counts. The Crown's concession that 'exceptional circumstances' under s 97A(5) may be established where the particular features of the matters in s 97A(5)(a)-(g) demonstrate the absence of significant probative value was accepted as well-founded.
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