A conviction with no further penalty is an available sentencing option under the Crimes (Sentencing) Act 2005 (ACT), resolving conflicting first instance authority. The warning in Roder at [37] that trial judges should not direct or invite juries to make findings in respect of charged conduct when considering tendency evidence does not establish a prohibition; the relevant question is whether the directions as a whole were apt to confuse the jury as to the burden and standard of proof. Tendency evidence expressed with a high degree of specificity that aligns with the counts on the indictment will generally have higher probative value and is not inadmissible for that reason alone. The question of whether tendency directions that invite findings on charged conduct necessarily give rise to a miscarriage of justice remains open pending the High Court's determination of the appeal from Decision Restricted.
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