Evidence admissible as tendency evidence under ss 97 and 101 of the Evidence Act 2008 (Vic) can also be used as context evidence, but context evidence cannot be used to prove tendency unless it independently satisfies the statutory requirements for tendency evidence. In single complainant sexual offence cases, the principles in R v Bauer (2018) 266 CLR 56 continue to govern the admissibility of tendency evidence, and there is no requirement for charged or uncharged acts to bear any special feature. Defence counsel's failure to challenge tendency evidence that had no prospect of being excluded is a rational forensic decision and does not ground a miscarriage of justice.
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