The Court of Appeal held that statements made by the applicant to an electoral officer about his beliefs regarding consent in sexual relationships were admissions within the meaning of the Evidence Act 2008, not merely non-hearsay evidence, and that the trial judge's reliance on ss 60 and 66 was erroneous, though the evidence was independently admissible under s 81. However, because both parties and the trial judge erroneously agreed the statements were not admissions, the applicant was denied the opportunity to argue for exclusion under s 90 on the basis of his mental health history at the time the statements were made, constituting a substantial miscarriage of justice warranting a retrial. The Court left open whether s 97 (tendency rule) or s 137 applied to the evidence, noting these issues should be addressed afresh at retrial depending on the uses to which the prosecution puts the evidence.
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