Whether tendency evidence of more aggravated uncharged conduct should be excluded under s 101(2) of the Evidence Act 2008 is a question of fact and degree, assessed by reference to the magnitude of the disparity (including the physical acts, their frequency and duration), the similarity of circumstances, and whether the allegations involve one or more complainants. The risk of unfair prejudice is not always greater in single complainant cases. Where the complainant, context, time period and nature of exploitation are the same, and the tendency conduct is not starkly different from the charged conduct, the evidence need not be excluded even though the uncharged acts are more serious.
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