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

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[This charge may be given where the judge gives a direction on the use of evidence as incriminating conduct and the accused seeks an additional direction warning about the dangers of relying on that evidence.

The direction should be given immediately after the direction warning the jury that even if it concludes that the accused thought that he committed the offence charged, the jury must still decide on the whole of the evidence whether the prosecution has proved the accused’s guilt beyond reasonable doubt]


I must also warn you that there are all sorts of reasons why a person might behave in a way that makes him/her look guilty. This means that NOA may have [described relevant conduct] even though s/he is not guilty of [identify relevant offence charged].

For example, NOA may have [describe relevant conduct] because:

[Insert possible motivations for the incriminating conduct such as panic, shame, protecting another person or fear of the police. Care must be taken in selecting which motivations to include, so as not to advance too few alternatives, or spurious alternatives which are easily dismissed. Attempts should be made to provide plausible alternative explanations relevant to the circumstances. Any explanations raised by defence counsel should be included in the list].

Even if you think that this conduct makes NOA look guilty, that does not necessarily mean that s/he is guilty.

Last updated: 29 June 2015

See Also

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

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

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

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