A trial judge's reformulation of a prosecution tendency notice, where defence counsel has no opportunity to make submissions on the tendency as finally reformulated, constitutes procedural unfairness requiring the ruling to be set aside. Tendency notices must be expressed with precision and comply with s 97(1)(a) of the Evidence Act 2008 (Vic); reformulation of a tendency without a compliant amended notice should not be condoned. Trial judges must exercise great caution in discussions about the adequacy of tendency notices to avoid crossing the line from identifying deficiencies to assisting in reformulating the prosecution's case.
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