4.6 – Incriminating Conduct (Post Offence Lies and Conduct)[1]

4.6.2.1–Charge: Other Conduct as Incriminating Conduct (Section 21direction)

[This charge should only be given if:

  • The judge has given leave for the prosecution to rely on evidence as incriminating conduct;
  • The evidence of incriminating conduct consists of acts only and not lies; and
  • The prosecution relies on the evidence as incriminating conduct.

If the evidence of incriminating conduct consists of lies, use Charge: Lies as Incriminating Conduct (Section 21 direction).

If defence counsel requests a warning about the dangers of relying on evidence of incriminating conduct, also give Charge: Additional direction on incriminating conduct (Section 22 direction).

If a direction is sought to minimise the risk of the jury wrongly using evidence as incriminating conduct, see Charge: Avoiding Risk of Improper Use of Conduct Evidence (Section 23 direction)]

Introduction

In this trial, the prosecution argued that you can use the evidence that NOA [identify other conduct relied on as incriminating conduct] as evidence that s/he believed that [describe relevant admission, for example ‘s/he committed the offence charged’ or ‘he shot the deceased’, or ‘he shot the deceased without acting in self-defence’.]

You may only use this evidence in this way if you find that this conduct occurred and the only reasonable explanation of this conduct is that the accused thought that [describe relevant belief].

However, I must warn you that even if you find that the accused believed that s/he committed the offence charged, you must consider all the evidence when deciding whether the prosecution has proved the accused’s guilt beyond reasonable doubt.

[Insert section 22 direction here if required. See Charge: Additional direction on incriminating conduct (Section 22 direction)]

[Identify relevant evidence and refer to relevant prosecution and defence arguments. As part of this, the judge should, in relation to each offence:

  • Identify the post offence conduct the prosecution relies upon in relation to that offence;
  • Identify whether the post offence conduct is relevant to prove the whole charge, one or more elements, or the absence of any defences;
  • Identify the matters which are said to show that the post offence conduct can be used as an implied admission of guilt]

Incriminating conduct and unreliable evidence

[If necessary, add a direction on using evidence of incriminating conduct to support evidence covered by an “unreliable evidence” direction]

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[1] This document was last updated on 29 July 2015.