Part 4 – Evidential directions - Division 1 - Post-offence conduct; Division 2 - Other misconduct evidence Flashcards
S18 Definition
In this Division—
Conduct means the telling of a lie by the A, or any other act or omission of the A, which occurs after the event(s) alleged to constitute an offence charged
Incriminating conduct means conduct that amounts to an implied admission by A (a) of having committed offence charged/element, OR (b) which negates defence to offence charged
Offence Charged includes any alternative offence.
S19 Prosecution notice of evidence to be relied on as
evidence of incriminating conduct (ICE)
(1) P must give notice of evidence of conduct that it proposes to rely on as ICE by serving on A and filing in court at last 28 days before first trial day (a) notice of intention to rely on ICE in court form
(b) copy of evidence P intends to rely on
(2) serve per Part 8.3 of Crim Proc Act
(3) TJ may dispense with requirements of (1)(a)/(b) if (a) P becomes first aware of ICE during trial, AND (b) P gives oral notice to the court and A of its intention to rely ICE (c), AND in IOJ to dispense
(4) If under (3) TJ dispenses with requirement of (1)(b), P must identify orally to court and A evidence it proposes to rely on as ICE
S20 Evidence of incriminating conduct
(1) P must not rely on ICE unless (a) P has given notice per s 19; AND (b) TJ determines that, on basis of evidence as a whole, the evidence is reasonably capable of being viewed by the jury as ICE
(2) above applies even if evidence of conduct may be admissible for another purpose
S21 Mandatory direction on use of evidence of
incriminating conduct
(1) If P relies on evidence of conduct as ICE, TJ must direct the jury that (a) it may treat the evidence as evidence that the A believed that he/she had committed the offence charged or element, or that he/she had negated defence to offence charged, only if jury concludes (i) conduct occurred, (ii) AND only reasonable explanation of conduct is A held that belief, AND (b) even if jury concludes that A believed he/she had committed offence, must still decide on basis of all evidence, whether P proved guilt of A BRD.
(2) In giving direction, TJ need not refer to each act/omission of A.
S22 Additional direction on incriminating conduct
If TJ gives, or proposes to give, direction under s 21, defence counsel may request under s 12 that the TJ also direct the jury that
(a) there’re all sort reasons why person might ‘behave guilty’, AND
(b) A may have engaged in conduct even though is NG, AND
(c) even if jury thinks that the conduct makes the A look guilty, that does not necessarily mean the A is guilty
S23 Direction to avoid risk of improper use of evidence
(1) If evidence is given of conduct but P does not rely on the evidence as ICE, D Counsel may request under s 12, that TJ:
(a) direct jury there are all sorts of reasons why person might ‘behave guilty’, AND
(b) warn even if jury thinks that the conduct was engaged in, must not conclude from that evidence that A is guilty of offence charged
S24 Abolition of common law rules continues
Except as provided by this Division, a TJ is not required to give the jury a direction regarding evidence because it is evidence of IC or may be improperly used as evidence of IC
S25 Application of Division
Division applies despite any obligation from s 95 of the Evidence Act 2008. (inability to use inadmissible TC evidence for other purposes)
S26 Definitions
In this Division—
tendency/coincidence evidence = Evidence Act meanings
Other misconduct evidence means (a) coincidence evidence, (b) tendency evidence, (c) evidence of other discreditable acts/omissions of an A that are not directly relevant to a fact in issue, (d) or evidence that is adduced to assist jury to understand context in which offence charged or any alternative offence is alleged to have been committed
S27 Direction on other misconduct evidence adduced by the prosecution
(1) D counsel may request under s 12 that TJ direct jury on OME adduced by the P.
(2) In giving (1) direction, TJ must (a) identify how the OME is relevant (directly/indirectly) to the existence of fact in issue in the trial and direct jury not to use it for any other purpose; AND (b) if evidence forms only part of the P case against the A, inform jury of that fact; AND (c) direct jury that it must not decide case based on prejudice arising from what jury has heard about the A
(3) in giving (1) direction, TJ need not (a) explain further what jury should consider in deciding whether to use the OME, (b) identify impermissible uses of the OME, (c) refer to any other matter.
S28 Direction on other misconduct evidence adduced by accused about a co-accused
(1) P or counsel for Co-accused may request under s 12 that the TJ direct the jury on OME adduced by A about the Co-A.
(2) In giving (1) direction, TJ must (a) identify how the OME is relevant (directly/indirectly) to the existence of fact in issue in the trial and direct jury not to use it for any other purpose; AND (b) direct jury that it must not decide case based on prejudice arising from what jury has heard about Co-A
(3) identical to 27(3) above
S29 Direction to avoid risk of improper use of OME
(1) If OME (other than TE) is adduced, P or D Counsel may request under s 12 that the TJ warn the jury not to use it as TE.
(2) without limiting s 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as TE.
S30 Abolition of common law rules
(1) Except as provided by this Division, a TJ is not required to direct the jury regarding use of OME.
(2) Any contrary common law rule is abolished.
