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4.6.2 - Charge: Other Conduct as Incriminating Conduct (Section 21 direction)

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[This charge should only be given if:

If the evidence of incriminating conduct also includes lies, this direction should be adapted and added to 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 ‘s/he shot the deceased’, or ‘s/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 believed that [describe relevant belief, for example ‘s/he committed the offence and needed to dispose of evidence’].

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:

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

  Last updated: 27 March 2019

See Also

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.6.1 - Charge: Lies as Incriminating Conduct (Section 21 direction)

4.6.3 - Charge: Additional Direction on Incriminating Conduct (Section 22 direction)

4.6.4 - Charge: Avoiding Risk of Improper Use of Conduct Evidence (Section 23 direction)