In judge-alone criminal trials, a trial judge who relies on observations of the accused's demeanour in the dock, or on a perceived disparity between cross-examination and the accused's evidence, must raise these matters with the parties before relying on them in reasons, or risk a finding of procedural unfairness. A trial judge must not engage in coincidence reasoning where no coincidence notice has been served under s 98 of the Evidence Act 1995 (NSW), even where tendency evidence has been admitted. Section 161A of the Criminal Procedure Act 1986 (NSW) confirms that charged acts need not be proved beyond reasonable doubt before they can be used for tendency purposes. The proviso will not be applied where credibility is impugned in a material way by procedural unfairness, because credibility is usually not a divisible concept.
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