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corpus · 4.88k rows

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test · 4.88k rows

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4.2-c4-s4	4.2 Other Permissible Directions and Comments	10. Counsel’s inability to meaningfully cross-examine a child witness may also be a circumstance that justifies a s 32 unreliability direction (see R v NRC [1999] 3 VR 537; R v Hart (1999) 135 CCC (3d) 377).[^4] 11. An argument that a witness is a child and therefore susceptible to influence risks breaching JDA s 33, as the direction is tantamount to saying that witness’ evidence is unreliable because they are a child (Movel* v The King [2024] VSCA 183, [173]). 12. The fact that a particular child has not experienced full cognitive development is unlikely, by itself, to provide a reason for giving a s 32 unreliability direction. Children who are not fully cognitively developed may be able to give reliable evidence if questions are tailored to their level of cognitive development. The impact of cognitive development is addressed by the s 44N directions. In addition, s 33 prohibits any generalised direction or suggestion that a child’s evidence is unreliable, such as an assertion that children are unable to distinguish between fact and fantasy (see R v FAR* [1996] 2 Qd R 49;* Reference of a Question of Law pursuant to the Criminal Code s 693A (Reference No 1 of 1999) [1999] WASCA 53). 13. As with other s 32 directions, the judge should only inform the jury about matters that are outside their common sense and experience (see R v Stewart* (2001) 52 NSWLR 301; R v Relc (2006) 167 A Crim R 484; R v Baartman [2000] NSWCCA 298. See also TN v R [2005] QCA 160; Tully v R (2006) 230 CLR 234 (Crennan J); R v Tichowitsch [2007] 2 Qd R 462).	[^3]: Children can be more suggestible than adults and they may be especially vulnerable to leading questions in police interviews or while giving evidence. This means that they may give answers designed to please the questioner. They also may not be able to distinguish between original memory and a later–acquired suggestion (R v FAR [1996] 2 Qd R 49. See also Myers J, Saywitz K, Goodman G, Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Courtroom Testimony 28 Pacific Law Journal 3 (1996–1997) and compare Ceci S and Friedman R, Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell Law Review 33 (2000–2001)). [^4]: While a child witness’s evidence may be excluded if he or she cannot be effectively cross-examined, there is no inflexible rule requiring the exclusion of such evidence (R v NRC [1999] 3 VR 537).	81	4 – Evidentiary Directions	4.2 Child Witnesses.docx	172	https://www.judicialcollege.vic.edu.au/media/472/file
4.2-c4-s5	4.2 Other Permissible Directions and Comments	14. At least in the case of children, the fact that evidence is unsworn is not a basis for finding that the evidence may be unreliable. The Evidence Act 2008 and the Jury Directions Act 2015 do not treat unsworn evidence as a kind that may be unreliable. There was also no requirement or rule of practice under the common law that judges warn the jury to take into account the differences between sworn and unsworn evidence when assessing reliability (R v GW (2016) 258 CLR 108, [55]–[57]).	[^3]: Children can be more suggestible than adults and they may be especially vulnerable to leading questions in police interviews or while giving evidence. This means that they may give answers designed to please the questioner. They also may not be able to distinguish between original memory and a later–acquired suggestion (R v FAR [1996] 2 Qd R 49. See also Myers J, Saywitz K, Goodman G, Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Courtroom Testimony 28 Pacific Law Journal 3 (1996–1997) and compare Ceci S and Friedman R, Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell Law Review 33 (2000–2001)). [^4]: While a child witness’s evidence may be excluded if he or she cannot be effectively cross-examined, there is no inflexible rule requiring the exclusion of such evidence (R v NRC [1999] 3 VR 537).	81	4 – Evidentiary Directions	4.2 Child Witnesses.docx	172	https://www.judicialcollege.vic.edu.au/media/472/file
4.2-c5-s1	4.2 Related Directions	## Related Directions 1. In cases where a child gives evidence, a judge may also need to direct the jury about the following issues: - 4.13 Opinion Evidence;[^5] - 2.3.3 Pre-recorded evidence;[^6] - 4.14 Previous representations (Hearsay, Recent Complaint and Prior Statement).[^7] Last updated: 4 April 2025	[^5]: A court may receive opinion evidence based on specialised knowledge of child development and child behaviour, including the impact of sexual abuse on children and child development (Evidence Act 2008 s 79). [^6]: The prosecution may lead pre-recorded evidence of a complainant in a sexual offence case if the complainant was under 18 at the time the recording was made (see Division 5 of Part 8.2 of the Criminal Procedure Act 2009). In addition, the whole of the complainant’s evidence must be pre-recorded at a special hearing if the complainant was a child when the proceedings were commenced, unless the court otherwise orders (see Division 6 of part 8.2 of the Criminal Procedure Act 2009). [^7]: A court may receive evidence of a complainant’s previous representations where he or she is available to give evidence and was under 18 when he or she made the representation (Evidence Act 2008 s 66(2)).	81	4 – Evidentiary Directions	4.2 Child Witnesses.docx	172	https://www.judicialcollege.vic.edu.au/media/472/file
4.2.1-c1-s1	4.2.1 Charge: Child Witnesses (s 44N Direction)	# 4.2.1 Charge: Child Witnesses (s 44N Direction) This direction should be given before a child witness gives evidence, if it is identified that the reliability or credibility of a child witness is likely to be in issue. This direction is drafted to be given just before the child gives evidence. If it is given at any other time, it must be modified accordingly. Members of the jury, before NOW gives evidence, there are some general matters I must tell you, to help you assess NOW’s evidence. Some of you may know these matters from your own experiences with children. But for others, some of these ideas may be new. First, children can accurately remember and report past events. Second, the language and mental skills of children develop as they get older. This may affect whether a child can give a detailed or complete account and whether their accounts correctly record the order in which different events occurred. Third, children’s language and mental skills also affect how they understand and respond to questions. Experience shows that a child’s level of development affects whether they have difficulty understanding certain words or phrases. These may be words or phrases that are hard for everyone to understand, or are only hard for children. For example, some children have difficulty understanding hypothetical questions, repetitive questions, multi-part questions and questions that require a single yes or no answer. Some children also have difficulty with questions or statements that use negatives and double negatives. A child’s level of development also affects whether the child understands certain concepts. These can be concepts that are difficult for everyone, or concepts that are only difficult for children. For example, experience shows that children often have difficulty with concepts that involving comparing two things, such as time, duration, measurement or frequency. Because of a child’s level of development, they may not ask someone to clarify a question they do not understand and may not clarify an answer which has been misunderstood. You should take these directions into account when you are listening to NOW giving evidence, and when you are assessing NOW’s credibility and reliability. Last updated: 29 October 2018		82	4 – Evidentiary Directions	4.2.1 Charge - Child Witnesses (s 44N Direction).docx	177	https://www.judicialcollege.vic.edu.au/media/541/file
4.3-c1-s1	4.3 Character Evidence	# 4.3 Character Evidence ## What is Character Evidence? 1. Character evidence addresses a person’s inherent moral character (R v Rowton (1865) 169 ER 1497; Melbourne v R (1999) 198 CLR 1; Attwood v R (1960) 102 CLR 353). 2. The relevance and admissibility of character evidence, as well as the need for a direction and the content of that direction, depend on whether the evidence is of the accused’s good character or bad character. 3. Directions about character evidence are directions about “the evidence in the trial relevant to the matters in issue”. Part 3 of the Jury Directions Act 2015 applies (Jury Directions Act 2015 s 10).		83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c2-s1	4.3 Evidence of Good Character	## Evidence of Good Character ## What is "Good Character" Evidence? 1. "Good character" evidence includes: - Evidence of the accused’s general good reputation; and - Evidence of the accused’s favourable disposition (Eastman v R (1997) 76 FCR 9; Stirland v Director of Public Prosecutions [1944] AC 315; Attwood v R (1960) 102 CLR 353). 2. The expression "good character" in s 110 of the Evidence Act 2008 has the same meaning as it does at common law (Eastman v R (1997) 76 FCR 9). 3. The accused’s good character can be proved in a variety of ways. Evidence of good character does not simply consist of evidence that the accused has not previously been convicted of a crime (Melbourne v R (1999) 198 CLR 1). ## Relevance of Good Character Evidence	[^2]: For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g. R v Trimboli (1979) 21 SASR 577). [^3]: For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c2-s2	4.3 Evidence of Good Character	4. Evidence that the accused is of good character may be relevant for two purposes: 1. It may make it more likely that the accused’s evidence is credible; and 1. It may make it less likely that the accused committed the offence (Melbourne v R (1999) 198 CLR 1; R v Baran [2007] VSCA 66; R v Zecevic [1986] VR 797; R v Murphy [1985] 4 NSWLR 42; R v Trimboli (1979) 21 SASR 577; R v Warasta (1991) 54 A Crim R 351; Attwood v R (1960) 102 CLR 353; Eastman v R (1997) 76 FCR 9; Ho v The King [2025] VSCA 150, [60]). 5. Good character evidence can only make it "unlikely", rather than "improbable", that the accused committed the offence (R v Stalder [1981] 2 NSWLR 9). 6. Evidence that the accused is of good character may be relevant to the credibility of evidence given in court and statements made out of court (R v Vollmer & Ors [1996] 1 VR 95; R v Vye [1993] 1 WLR 471; Melbourne v R (1999) 198 CLR 1). 7. In some cases the two uses of good character evidence will entirely overlap, and will function as a single idea rather than as two discrete issues (R v Trimboli (1979) 21 SASR 577). 8. The court may limit the use to be made of good character evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party, or might be misleading or confusing (Evidence Act 2008 s 136). However, this will be rare (see, e.g. R v Lawrence [1984] 3 NSWLR 674; R v Murphy (1985) 4 NSWLR 42; R v Hamilton (1993) 68 A Crim R 298). ## Admissibility of Good Character Evidence	[^2]: For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g. R v Trimboli (1979) 21 SASR 577). [^3]: For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c2-s3	4.3 Evidence of Good Character	9. The defence may adduce evidence to prove that the accused is a person of good character (Evidence Act 2008 s 110(1)). 10. The evidence may be used to prove that the accused is a good person generally, or in a particular respect (Evidence Act 2008 s 110(1)). This differs from the common law, which treats character as indivisible (with people considered to be either of good character or bad character) (Melbourne v R (1999) 198 CLR 1; Bishop v R (2013) 39 VR 642). 11. Good character evidence may consist of opinion evidence from a witness concerning the character of the accused, or evidence from a witness about the reputation of the accused within the community, or a part of the community (Bishop v R (2013) 39 VR 642; R v Chapman [2002] NSWCCA 105). ## Probative Value of Good Character Evidence 12. The probative effect of good character evidence on the accused’s credibility, and on the likelihood that he or she committed the offence charged, will vary depending on the circumstances of the case. 13. For example, the probative effect of good character evidence on the accused’s credibility may be diminished where he or she does not give evidence in court, instead relying on out-of-court statements (R v Zecevic [1986] VR 797; R v Arundell [1999] 2 VR 228). 14. The probative value of good character evidence may also be affected by: - The nature of the offence charged (R v Trimboli (1979) 21 SASR 577);[^2] - The relationship between the type of character established and the type of offence charged (R v Arundell [1999] 2 VR 228; Braysich* v R* (2011) 243 CLR 434);[^3] and - The strength of the other evidence supporting the charge (Simic v R (1980) 144 CLR 319).	[^2]: For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g. R v Trimboli (1979) 21 SASR 577). [^3]: For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c2-s4	4.3 Evidence of Good Character	15. In some cases, the only evidence of the accused’s good character will be his or her lack of prior convictions. The probative value of the character evidence in such cases is usually extremely limited (R v Cumberbatch (No 5) [2002] VSC 289; Melbourne v R (1999) 198 CLR 1). ## Need for a Direction About Good Character Evidence	[^2]: For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g. R v Trimboli (1979) 21 SASR 577). [^3]: For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c2-s5	4.3 Evidence of Good Character	16. At common law, it was recognised that a judge was not required to direct the jury about the uses of good character evidence in all cases where that evidence was led (Melbourne v R (1999) 198 CLR 1; Benbrika* v R* (2010) 29 VR 593; R v DD (2007) 19 VR 143; Gallant v R [2006] NSWCCA 339; R v Arundell [1999] 2 VR 228). 17. The need for a direction depends on whether a direction is sought or whether there are substantial and compelling reasons to give a direction in the absence of a request (Jury Directions Act 2015 ss 14–16). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. 18. Under the Jury Directions Act 2015, the judge should consider the significance of the good character evidence in the context of the trial when deciding whether to give the direction despite the absence of a request. 19. In making this assessment, courts have emphasised that the potential value of good character should not be underestimated (Wah v The Queen (2014) 45 VR 440, [41]; Ho v The King [2025] VSCA 150, [61]). 20. Prior to the Jury Directions Act 2015, the recommended practice in Victoria was that judges would give directions on good character evidence almost without exception (see R v Warasta (1991) 54 A Crim R 351). In Bishop v R (2013) 39 VR 642, which was decided after the commencement of the Jury Directions Act 2013, this practice was endorsed as continuing to provide guidance to trial judges. However, the court in Bishop did not refer to the effect of sections 13 and 15 of the Jury Directions Act 2013 (see now Jury Directions Act 2015 ss 14–16). 21. In determining whether to give a direction, a judge should pay close attention to the relevance of the evidence to the offence, and to the issues to which the evidence relates (Stanoevski* v R (2001) 202 CLR 115; R v Szabo *[2000] NSWCCA 226).	[^2]: For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g. R v Trimboli (1979) 21 SASR 577). [^3]: For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c2-s6	4.3 Evidence of Good Character	22. A judge should consider the probative value of the evidence when determining whether or not to give a direction (Melbourne v R (1999) 198 CLR 1; Benbrika* v R* (2010) 29 VR 593; R v DD (2007) 19 VR 143). 23. A good character direction must be given where the evidence has an immediate and obvious connection with an issue in the case (Melbourne v R (1999) 198 CLR 1). 24. In deciding whether to direct the jury about good character evidence, a judge must separately consider the probative effect of the evidence on the accused’s credibility and on the likelihood that he or she committed the offence charged (Melbourne v R (1999) 198 CLR 1; Benbrika* v R* (2010) 29 VR 593). 25. Where the evidence of good character comes from the accused him or herself there is generally less need for a direction on the uses of such evidence, as this will usually be self-explanatory (R v Mackrae–Bathory [2006] VSCA 179; R v TSR (2002) 5 VR 627).	[^2]: For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g. R v Trimboli (1979) 21 SASR 577). [^3]: For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c2-s7	4.3 Evidence of Good Character	## Content of the Direction on Good Character Evidence	[^2]: For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g. R v Trimboli (1979) 21 SASR 577). [^3]: For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c2-s8	4.3 Evidence of Good Character	26. No particular form of words is required for a direction on good character evidence (R v Trimboli (1979) 21 SASR 577; R v Arundell [1999] 2 VR 228; R v RJC 18/8/98 NSW CCA; R v Telfer (2004) 142 A Crim R 132; Fung v R [2007] NSWCCA 250). 27. The judge will need to consider whether the parties have sought a direction about the two permissible uses of good character evidence, and whether it is appropriate to direct on both uses. For example, the judge may have good reasons to direct on only one of the permissible uses of such evidence (Melbourne v R (1999) 198 CLR 1;* R v Arundell* [1999] 2 VR 228; R v Zecevic [1986] VR 797; Sindoni v R [2011] VSCA 195). 28. If the evidence relates to a particular aspect of the accused’s character (rather than his or her character generally), the directions must be limited to that aspect (see, e.g. R v Zurita [2002] NSWCCA 22). 29. This may affect which of the two possible uses of the evidence the jury should be told about. For example, in Ho v The King, the accused had no history of violent offending, but was pleading guilty to involvement in drug cultivation. The Court of Appeal held that the evidence of the accused’s history of non-violence did not make him more trustworthy or more credible, given he was coming before the jury as a person willing to engage in drug offending (Ho v The King [2025] VSCA 150, [68]–[71]. See also R v Zurita [2002] NSWCCA 22). 30. Where the judge directs the jury about the relevance of the evidence to the issue of guilt, the direction should convey to the jury that they should bear in mind the accused’s good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood that the accused committed the crime charged (R v RJC 18/8/98 NSW CCA).	[^2]: For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g. R v Trimboli (1979) 21 SASR 577). [^3]: For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c2-s9	4.3 Evidence of Good Character	31. It is permissible to direct the jury that a person of good character is less likely to have committed the offence than a person not of good character (Fung v R [2007] NSWCCA 250; Kanbut* v The Queen* [2022] NSWCCA 259, [35]–[37]). 32. Where the judge directs the jury about the relevance of the evidence to the issue of credibility, the judge should convey to the jury that they should consider the accused’s previous good character in assessing the credibility of any explanation he or she has given and, if he or she has given evidence in court, his or her credibility as a witness (R v RJC 18/8/98 NSW CCA). 33. The judge may remind the jury that people commit crimes for the first time, and that evidence of good character cannot alter proven facts or provide a defence in itself. Character evidence can only affect the jury’s assessment of whether certain facts have been proven beyond reasonable doubt (R v Arundell [1999] 2 VR 228; Melbourne v R (1999) 198 CLR 1; R v Trimboli (1979) 21 SASR 577; R v Zecevic [1986] VR 797; R v RJC 18/8/98 NSW CCA; Bishop v R (2013) 39 VR 642). 34. Judges must exercise care when warning the jury about the need for caution in acting on good character evidence other than the standard directions that people commit crimes for the first time and the evidence cannot alter proven facts or provide a defence in itself (Bishop v R (2013) 39 VR 642). 35. In particular, where character evidence is led in a sexual offence case, the judge must not give a limiting direction that good character evidence is of less weight (or no weight) because sexual offences are committed in private and the evidence only addresses the accused’s conduct in the presence of others (Bishop v R (2013) 39 VR 642; R v MWL (2002) 137 A Crim R 282). 36. Judges should exercise great care in departing from the traditional directions into directions which have not previously received curial approval (Bishop v R (2013) 39 VR 642).	[^2]: For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g. R v Trimboli (1979) 21 SASR 577). [^3]: For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c2-s10	4.3 Evidence of Good Character	37. Where good character evidence can be used both in assessing guilt and credibility, the judge must not direct the jury that the evidence cannot be used for one of these two purposes (R v Zecevic [1986] VR 797; R v Murphy [1985] 4 NSWLR 42). 38. In such cases, if the prosecution tells the jury that the evidence may not be used for one of the two permissible purposes, the judge must raise with the parties the need for a direction to ensure the jury is not misled (see Jury Directions Act 2015 s 16 and R v Schmahl [1965] VR 745). 39. A person who has a prior conviction that was overturned on appeal must be treated as a person without any prior convictions. Any direction on good character must not be qualified by reference to the quashed conviction (R v Lapuse [1964] VR 43).	[^2]: For some offences, good character evidence will not establish that the accused is the kind of person who would be unlikely to commit that crime. For example, it has previously been held that the fact that a person is of good character may not materially affect the likelihood that s/he would cultivate cannabis (see, e.g. R v Trimboli (1979) 21 SASR 577). [^3]: For example, evidence of honesty is not likely to be highly probative where the accused is charged with a violent crime (R v Arundell [1999] 2 VR 228).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c3-s1	4.3 Evidence of Bad Character	## Evidence of Bad Character 1. Evidence of the accused’s bad character is generally inadmissible on the basis that it is unfairly prejudicial (Melbourne v R (1999) 198 CLR 1; R v Thomas [2006] VSCA 167; Donnini v R (1972) 128 CLR 114; Perry v R (1982) 150 CLR 580).[^4] 2. However, under the Evidence Act 2008 there are three circumstances in which bad character evidence may be admissible: 1. If evidence has been adduced to prove an accused’s good character (either generally or in a particular respect), a co-accused or the prosecution may respond by leading evidence to prove that the accused is not a person of good character (either generally or in that respect) (ss 110(2)–(3)). 1. An accused may adduce opinion evidence about the character of a co-accused, where it is evidence of the opinion of a person who has specialised knowledge based on his or her training, study or experience, and the opinion is wholly or substantially based on that knowledge (Evidence Act 2008 s 111(1)); and 2. Evidence that reveals the accused’s bad character may also be admissible under a provision of Part 3.7 concerned with credibility evidence. 3. Leave is required to cross-examine an accused about matters arising out of character evidence (Evidence Act 2008 s 112).[^5] See Gabriel v R (1997) 76 FCR 279 for a discussion of relevant considerations. ## Use of Bad Character Evidence 4. At common law, bad character evidence can only be used to negate evidence of good character. It cannot be used as directly relevant to the issue of guilt (see, e.g. BRS v R (1997) 191 CLR 275). 5. At first glance, the Evidence Act 2008 appears to make bad character evidence admitted under s 110 usable for tendency purposes.[^6] This is because: - This evidence is not subject to the tendency rule (s 110); - It is also exempted from the further restrictions on tendency evidence in s 101, because that extension "does not apply to tendency evidence that the prosecution adduces to explain or contradict evidence adduced by the defendant" (s 101(3)).	[^4]: While evidence is generally inadmissible for the purpose of proving the accused’s bad character, evidence that is relevant for another purpose is not rendered inadmissible solely because it also happens to show the bad character of the accused. Such evidence may be admitted for a limited, probative, purpose. In such cases, the judge must direct the jury to use the evidence only for the admissible purpose, and may need to warn the jury not to use the evidence for an irrelevant or prejudicial purpose (see, e.g. R v Thompson [2001] VSCA 208; Orman v R [2010] VSCA 246R). [^5]: See R v El–Azzi [2004] NSWCCA 455 and Stanoevski* v R* (2001) 202 CLR 115 for a discussion of the meaning of "matters arising out of" this kind of evidence. [^6]: In explaining the rationale behind the proposal on which s 110 is based, the Australian Law Reform Commission ("ALRC") noted that this restriction seems incapable of enforcement, and implied that it should not be adopted in the UEA (ALRC 26, vol.1, para 83).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3-c3-s2	4.3 Evidence of Bad Character	6. However, in NSW it has been held that the common law position remains unchanged, and that bad character evidence can only be used to negate good character evidence (R v OGD (No 2) (2000) 50 NSWLR 433; R v El-Kheir [2004] NSWCCA 461. See also Eastman v R (1997) 76 FCR 9 for a brief discussion of this issue). 7. The court may limit the use to be made of bad character evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party, or might be misleading or confusing (Evidence Act 2008 s 136). ## Content of the Direction on Bad Character Evidence 8. Where evidence of bad character is admitted and the prosecution or counsel for the accused seeks a direction, the judge must explain to the jury that: - They may use the evidence when assessing the accused’s credibility; and - They must not use the evidence to infer that the accused is more likely to have committed the offence because he or she is a person of bad character (R v Perrier (No 1) [1991] 1 VR 697;* R v Thomas [2006] VSCA 167; Donnini v R* (1972) 128 CLR 114; BRS v R (1997) 191 CLR 275; R v Stalder [1981] 2 NSWLR 9; R v Rihia [2000] VSCA 235). 9. At common law, there was seen to be a high degree of risk that a jury would use bad character evidence to engage in impermissible propensity reasoning. Judges were therefore required to clearly direct the jury on both the permissible and impermissible uses of bad character evidence (Donnini v R (1972) 128 CLR 114). This will continue to guide the content of directions on bad character evidence under the Jury Directions Act 2015. 10. The permissible uses of bad character evidence are not the converse of the permissible uses of good character evidence. The jury is allowed to use good character evidence to engage in a form of propensity reasoning that is not permitted for bad character evidence. This anomaly is deeply rooted in the law (Melbourne v R (1999) 198 CLR 1). Last updated: 7 August 2025	[^4]: While evidence is generally inadmissible for the purpose of proving the accused’s bad character, evidence that is relevant for another purpose is not rendered inadmissible solely because it also happens to show the bad character of the accused. Such evidence may be admitted for a limited, probative, purpose. In such cases, the judge must direct the jury to use the evidence only for the admissible purpose, and may need to warn the jury not to use the evidence for an irrelevant or prejudicial purpose (see, e.g. R v Thompson [2001] VSCA 208; Orman v R [2010] VSCA 246R). [^5]: See R v El–Azzi [2004] NSWCCA 455 and Stanoevski* v R* (2001) 202 CLR 115 for a discussion of the meaning of "matters arising out of" this kind of evidence. [^6]: In explaining the rationale behind the proposal on which s 110 is based, the Australian Law Reform Commission ("ALRC") noted that this restriction seems incapable of enforcement, and implied that it should not be adopted in the UEA (ALRC 26, vol.1, para 83).	83	4 – Evidentiary Directions	4.3 Character Evidence.docx	178	https://www.judicialcollege.vic.edu.au/media/513/file
4.3.1-c1-s1	4.3.1 Charge: General Good Character Evidence	# 4.3.1 Charge: General Good Character Evidence This charge may be given where evidence that the accused is of good character generally has been adduced. It includes additional directions to be used where another party has led bad character evidence in rebuttal. See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. In this case you have heard evidence that NOA is a person of good character. [Describe good character evidence.] [If bad character evidence has also been given, add the following shaded section.] You have also heard evidence that NOA is a person of bad character. [Describe bad character evidence.] It is for you to determine whether NOA is of good character, bad character, or neither.	[^2]: If the accused has given no evidence in court, and made no out-of-court statements, this paragraph should be omitted and the charge modified accordingly. [^3]: If the accused has given no evidence in court, and made no out-of-court statements, this paragraph should be omitted and the charge modified accordingly. [^4]: This aspect of the charge is based on the assumption that the NSW interpretation of Evidence Act 2008 s 110 is correct. If it is not, then this paragraph will need to be modified accordingly. See 4.3 Character Evidence for further information.	84	4 – Evidentiary Directions	4.3.1 Charge - General Good Character Evidence.docx	184	https://www.judicialcollege.vic.edu.au/media/515/file
4.3.1-c1-s2	4.3.1 Charge: General Good Character Evidence	## Good Character If you accept that NOA is a person of good character, there are two ways in which you can use this fact. First, you can use it when assessing the credibility of NOA’s evidence and his/her denials of the prosecution case.[^2] As a person of good character is generally thought to be more trustworthy than other people, you may be less willing to accept the prosecution’s evidence than if NOA was not a person of good character. Second, you can use it when determining the likelihood that NOA committed the offence[s] charged. As it is generally believed that a person of good character is unlikely to commit a criminal offence, you may be less willing to accept the prosecution’s allegation that NOA committed [that offence/those offences] than you would be if s/he was not a person of good character. Of course, this does not mean that you must find NOA not guilty if you accept that s/he is a person of good character. The mere fact that a person is of good character cannot alter proven facts – it can only help you to determine whether or not those facts have been proven. In addition, you should keep in mind the fact that a person who has previously been of good character can commit a crime for the first time. [If bad character evidence has also been given, add the following shaded section.] By contrast, if you find that NOA is a person of bad character, you can only use this fact when assessing the credibility of [describe sources of NOA’s evidence, e.g. "the evidence NOA gave in court" or "the statement NOA made to the police"].[^3] As a person of bad character is generally thought to be less trustworthy than other people, you may be less willing to accept that evidence than you would be if NOA was not a person of bad character. Unlike the situation where you find the accused to be of good character, a finding that the accused is of bad character cannot be used when determining the likelihood that NOA committed the offence[s] charged.[^4] In particular, you must not reason that, because NOA is a person of bad character, s/he is more likely to have committed the offence[s] charged. That kind of reasoning is prohibited. Findings of guilt must be based only on the evidence given in the trial, not on assumptions about the kinds of people who commit crimes. Last updated: 1 July 2013	[^2]: If the accused has given no evidence in court, and made no out-of-court statements, this paragraph should be omitted and the charge modified accordingly. [^3]: If the accused has given no evidence in court, and made no out-of-court statements, this paragraph should be omitted and the charge modified accordingly. [^4]: This aspect of the charge is based on the assumption that the NSW interpretation of Evidence Act 2008 s 110 is correct. If it is not, then this paragraph will need to be modified accordingly. See 4.3 Character Evidence for further information.	84	4 – Evidentiary Directions	4.3.1 Charge - General Good Character Evidence.docx	184	https://www.judicialcollege.vic.edu.au/media/515/file
4.3.2-c1-s1	4.3.2 Charge: Specific Good Character Evidence	# 4.3.2 Charge: Specific Good Character Evidence This charge may be given where evidence that the accused is of good character in a particular respect. It includes additional directions to be used where another party has led bad character evidence in rebuttal. See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. In this case you have heard evidence that NOA is a person of good character in relation to [describe respect in which it is alleged that the accused is of good character]. [Describe good character evidence.] [If bad character evidence has also been given, add the following shaded section.] You have also heard evidence that NOA is a person of bad character in that respect. [Describe bad character evidence.] It is for you to determine whether NOA is of good or bad character in relation to [describe respect], or is of neither good nor bad character in that respect.	[^2]: This paragraph should be omitted, and the charge modified accordingly, if: The respect in which it is alleged that the accused is of good character is not of relevance to the issue of credibility; or The accused gave no evidence in court, and made no out-of-court statements. [^3]: This paragraph should be omitted, and the charge modified accordingly, if the respect in which it is alleged that the accused is of good character is not of relevance to the issue of guilt. [^4]: This paragraph should be omitted, and the charge modified accordingly, if: The respect in which it is alleged that the accused is of bad character is not of relevance to the issue of credibility; or The accused gave no evidence in court, and made no out-of-court statements. [^5]: This aspect of the charge is based on the assumption that the NSW interpretation of Evidence Act 2008 s 110 is correct. If it is not, then this paragraph will need to be modified accordingly. See 4.3 Character Evidence for further information.	85	4 – Evidentiary Directions	4.3.2 Charge - Specific Good Character Evidence.docx	185	https://www.judicialcollege.vic.edu.au/media/516/file
4.3.2-c1-s2	4.3.2 Charge: Specific Good Character Evidence	## Good Character If you accept that NOA is a person of good character in relation to [describe respect], there are two ways in which you can use this fact. First, you can use it when assessing the credibility of NOA’s evidence and his/her denials of the prosecution case.[^2] As a person who is of good character in that respect is generally thought to be more trustworthy than other people, you may be less willing to accept the prosecution’s evidence than if NOA was not a person of good character in that respect. Second, you can use it when determining the likelihood that NOA committed the offence[s] charged.[^3] As it is generally believed that a person who is of good character in relation to [describe respect] is unlikely to commit a criminal offence, you may be less willing to accept the prosecution’s allegation that NOA committed [that offence/those offences] than you would be if s/he was not a person of good character in that respect. Of course, this does not mean that you must find NOA not guilty if you accept that s/he is a person of good character in relation to [describe respect]. The mere fact that a person is of good character in that respect cannot alter proven facts – it can only help you to determine whether or not those facts have been proven. In addition, you should keep in mind the fact that a person who has previously been of good character can commit a crime for the first time. [If bad character evidence has also been given, add the following shaded section.] By contrast, if you find that NOA is a person of bad character you can only use this fact when assessing the credibility of [describe sources of NOA’s evidence, e.g. "the evidence NOA gave in court" or "the statement NOA made to the police"].[^4] As a person who is of bad character is generally thought to be less trustworthy than other people, you may be less willing to accept that evidence than you would be if NOA was not a person of bad character in that respect.	[^2]: This paragraph should be omitted, and the charge modified accordingly, if: The respect in which it is alleged that the accused is of good character is not of relevance to the issue of credibility; or The accused gave no evidence in court, and made no out-of-court statements. [^3]: This paragraph should be omitted, and the charge modified accordingly, if the respect in which it is alleged that the accused is of good character is not of relevance to the issue of guilt. [^4]: This paragraph should be omitted, and the charge modified accordingly, if: The respect in which it is alleged that the accused is of bad character is not of relevance to the issue of credibility; or The accused gave no evidence in court, and made no out-of-court statements. [^5]: This aspect of the charge is based on the assumption that the NSW interpretation of Evidence Act 2008 s 110 is correct. If it is not, then this paragraph will need to be modified accordingly. See 4.3 Character Evidence for further information.	85	4 – Evidentiary Directions	4.3.2 Charge - Specific Good Character Evidence.docx	185	https://www.judicialcollege.vic.edu.au/media/516/file
4.3.2-c1-s3	4.3.2 Charge: Specific Good Character Evidence	Unlike the situation where you find the accused to be of good character, a finding that the accused is of bad character in that respect cannot be used when determining the likelihood that NOA committed the offence[s] charged.[^5] In particular, you must not reason that, because NOA is a person of bad character, s/he is more likely to have committed the offence[s] charged. That kind of reasoning is prohibited. Findings of guilt must be based only on the evidence given in the trial, not on assumptions about the kinds of people who commit crimes. Last updated: 1 July 2013	[^2]: This paragraph should be omitted, and the charge modified accordingly, if: The respect in which it is alleged that the accused is of good character is not of relevance to the issue of credibility; or The accused gave no evidence in court, and made no out-of-court statements. [^3]: This paragraph should be omitted, and the charge modified accordingly, if the respect in which it is alleged that the accused is of good character is not of relevance to the issue of guilt. [^4]: This paragraph should be omitted, and the charge modified accordingly, if: The respect in which it is alleged that the accused is of bad character is not of relevance to the issue of credibility; or The accused gave no evidence in court, and made no out-of-court statements. [^5]: This aspect of the charge is based on the assumption that the NSW interpretation of Evidence Act 2008 s 110 is correct. If it is not, then this paragraph will need to be modified accordingly. See 4.3 Character Evidence for further information.	85	4 – Evidentiary Directions	4.3.2 Charge - Specific Good Character Evidence.docx	185	https://www.judicialcollege.vic.edu.au/media/516/file
4.3.3-c1-s1	4.3.3 Charge: Bad Character Evidence	# 4.3.3 Charge: Bad Character Evidence This charge may be given where evidence that the accused is not of good character has been adduced under an exception to the credibility rule (and not as rebuttal evidence under s 110). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. In this case you have heard evidence that NOA is a person of bad character.[^2] [Describe bad character evidence.] If you accept that NOA is a person of bad character, you can use this fact when assessing the credibility of [describe sources of the accused’s evidence, e.g. "the evidence NOA gave in court" or "the statement NOA made to the police"].[^3] As a person of bad character is generally thought to be less trustworthy than other people, you may be less willing to accept that evidence than you would be if NOA was not a person of bad character. However, you must not reason that, because NOA is a person of bad character, s/he is more likely to have committed the offence[s] charged. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in the trial, not on assumptions about the kinds of people who commit crimes. Last updated: 1 July 2013	[^2]: This charge is drafted for use in cases where the character evidence relates to the accused. If the character evidence relates to a different witness the charge will need to be modified. [^3]: If the accused has given no evidence in court, and made no out-of-court statements, this paragraph should be omitted and the charge modified accordingly.	86	4 – Evidentiary Directions	4.3.3 Charge - Bad Character Evidence.docx	186	https://www.judicialcollege.vic.edu.au/media/514/file
4.4-c1-s1	4.4 Prosecution Witness's Motive to Lie	# 4.4 Prosecution Witness's Motive to Lie Warning! The law relating to directions on a prosecution witness’ motive to lie was modified by the Jury Directions and Other Acts Amendment Act 2017. There has not yet been appellate guidance on the operation of these provisions. This information should be used with caution. Further information about the Jury Directions and Other Acts Amendment Act 2017 is available in the Department of Justice and Regulation report, ‘[Jury Directions: A Jury-Centric Approach Part 2’](https://www.justice.vic.gov.au/jury-directions-a-jury-centric-approach-part-2). ## Effect of Jury Directions Act 2015 1. Jury directions relating to whether a prosecution witness has a motive to lie have been significantly changed by the Jury Directions Act 2015 following amendments by the Jury Directions and Other Acts Amendment Act 2017 which commenced on 1 October 2017. 2. Under the Act, if the issue of whether a prosecution witness has a motive to lie is raised in a trial, the defence may request that the judge explain to the jury: - The prosecution’s obligation to prove that the accused is guilty; and - That the accused does not have to prove that the witness had a motive to lie (Jury Directions Act 2015 s 44L). 3. The need for any direction about a prosecution witness’ motive to lie depends on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of any request (Jury Directions Act 2015 ss 14–16). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. 4. Except as provided by s 44L, read in the context of the rest of the Jury Directions Act 2015, including ss 12–16, the judge is not required or permitted to direct the jury on the issue of whether a prosecution witness has a motive to lie. Any common law rule to the contrary is abolished (Jury Directions Act 2015 s 44M). 5. While the Jury Directions Act 2015 s 44L applies to any prosecution witness, in practice, the issue is most often raised in relation to the complainant.		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c2-s1	4.4 Relevance of the Complainant’s Motive	## Relevance of the Complainant’s Motive 1. If the complainant has a motive to make and persist in false allegations about the accused (a “motive to lie”), this may be a relevant factor in judging his or her credit and testing the acceptability of the accusation giving rise to the charges (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96). 2. However, there is no onus on the accused to prove a motive for the complainant’s allegations (Jury Directions Act 2015 s 44L; see also R v Costin [1998] 3 VR 659; Palmer v The Queen (1998) 193 CLR 1; R v Cherry (No.2) [2006] VSCA 271). 3. The failure of the accused to identify a motive to lie is entirely neutral in relation to the assessment of the credibility of the complainant. A complainant’s account gains no legitimate credibility from the absence of evidence of a motive to lie (Palmer v The Queen (1998) 193 CLR 1; R v PLK [1999] 3 VR 567; R v SAB (2008) 20 VR 55). 4. The fact that the accused has no knowledge of any fact from which it can be inferred that the complainant had a motive to lie is therefore generally irrelevant. In most cases, the fact that the accused lacks knowledge about the complainant’s motive to lie will simply mean that his or her evidence cannot assist in determining whether the complainant has such a motive (Palmer v The Queen (1998) 193 CLR 1; R v PLK [1999] 3 VR 567; R v Hilsey [1998] VSCA 143).		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c3-s1	4.4 Raising the Issue of the Complainant’s Motive to Lie	## Raising the Issue of the Complainant’s Motive to Lie		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c3-s2	4.4 Raising the Issue of the Complainant’s Motive to Lie	1. As the fact that the complainant has a motive to lie is relevant, it is permissible for the defence to cross-examine the complainant about whether s/he has a motive to lie (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96; R v PLK [1999] 3 VR 567). 2. It is also permissible for the defence to lead other evidence from which it can be inferred that the complainant has a motive to lie (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96). 3. Where the accused alleges in his or her evidence that the complainant has a motive to lie, it is permissible for the prosecution to cross-examine the accused about the alleged motive (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96; R v PLK [1999] 3 VR 567; R v Davis [2007] VSCA 276; R v SAB (2008) 20 VR 55). 4. However, any cross-examination of the accused must be conducted within the limits of relevant and admissible evidence. Thus, while s/he may be questioned about the factual basis of any allegations made, s/he should not be directly asked to give evidence on the motives of the complainant. Such evidence could only be speculative and a matter of opinion upon which the accused could have no expertise (Palmer v The Queen (1998) 193 CLR 1 (Kirby J); R v SAB (2008) 20 VR 55). 5. In cases where the defence alleges that a complainant has a motive to lie, it is also open to the prosecution to put arguments to the jury relating to the validity of that motive (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96; R v PLK [1999] 3 VR 567; Schroder v The King [2024] VSCA 42, [37]–[38]).		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c3-s3	4.4 Raising the Issue of the Complainant’s Motive to Lie	6. While the prosecution may properly seek to rebut any motive put forward by the defence, they should not suggest that rejecting the suggested motive means accepting that the complainant has no motive to lie and is telling the truth. There may be other reasons, unknown to the accused, for the complainant making a false allegation (R v Hewitt [1998] 4 VR 862). 7. For the accused to be cross-examined about the complainant’s motive to lie, s/he must have made an allegation about the complainant lying in his or her direct evidence. The fact that defence counsel made such an allegation in his or her arguments is not sufficient (R v Davis [2007] VSCA 276). 8. If no direct evidence has been given of a specific motive to lie, and there is no evidence from which a specific motive to lie could reasonably be inferred, the accused should not be cross-examined about the matter. This is because, as noted above, the fact that the accused cannot provide a possible motive for the complainant to lie is generally irrelevant (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96; R v Davis [2007] VSCA 276). 9. As well as being irrelevant, it is objectionable to ask the accused why the complainant would lie (when the aim of the question is to show that the complainant had no such motive), because:		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c3-s4	4.4 Raising the Issue of the Complainant’s Motive to Lie	- There is a risk that the jury will reason that the absence of evidence of a motive for lying is proof that there was no motive for lying. This method of reasoning, and conclusion, is impermissible; - Asking the question is to invite the jury to accept the complainant’s evidence unless the accused gives a positive answer to that question. This risks reversing the onus of proof, as it implies that unless the jury is satisfied that the complainant is a liar, they should accept his or her evidence and convict the accused; - Such a question is unfair to the accused, who cannot be expected to see into the mind of the complainant and be held accountable for failing to discern his or her motives; - Asking why the complainant would lie is to invite the jury to speculate as to what might be possible motives for lying and to assess their likelihood. That is not trying the case on the evidence, but speculating concerning unproven facts; - Focusing on the complainant’s motive to lie may distract the jury from the critical question in a criminal trial – whether the prosecution has proved the guilt of the accused beyond reasonable doubt (see Palmer v The Queen (1998) 193 CLR 1; R v PLK [1999] 3 VR 567; R v RC [2004] VSCA 183; R v E (1996) 39 NSWLR 450; R v F (1995) 83 A Crim R 502; R v Davis [2007] VSCA 276; R v SAB (2008) 20 VR 55). 10. Similar dangers can arise even if the accused is not specifically asked about the complainant’s motive to lie – for example, if prosecuting counsel rhetorically asks the jury “why would the complainant lie?” in his or her address, or if the complainant asks “why would I lie?” when giving evidence and the jury are forcefully reminded of those words in the prosecutor’s final address (R v RC [2004] VSCA 183). 11. It is therefore usually inappropriate for the prosecution to raise the question “why would the complainant lie?” in their final address, no matter how the issue of motive has arisen (R v RC [2004] VSCA 183).		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c4-s1	4.4 When to Give a Direction	## When to Give a Direction 1. Under the Jury Directions Act 2015, the need for a direction depends on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of a request (Jury Directions Act 2015 ss 14–16). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. 2. Jury Directions Act 2015 s 44L, as amended in 2017, provides that defence counsel may request a direction under s 12 of the Act on the issue of whether a witness for the prosecution has a motive to lie, if that issue is raised during a trial. 3. Unlike some sections of the Jury Directions Act 2015 which refer to requests for directions by either the prosecution or defence (see, e.g. s 32(1)), s 44L refers only to requests by defence counsel. This suggests the prosecution cannot request a direction on the issue. However, a judge has the power to give a direction under s 16 of the Jury Directions Act 2015 if the judge considers there are substantial and compelling reasons for doing so, and after hearing submissions. 4. If the prosecution believes that a direction under s 44L is necessary, then the prosecution should first invite defence counsel to ask for the direction. If the defence declines that invitation, the prosecution may invite the judge to form the view under s 16 that there are substantial and compelling reasons for the direction. 5. One circumstance in which the prosecution may believe that a s 44L direction is warranted is where the prosecution has cross-examined its own witness in accordance with Evidence Act 2008 s 38. However, it is unclear whether the s 44L direction is well-suited to this scenario. See “Section 44L and unfavourable prosecution witnesses” below. 6. Although s 44M(2) abolishes any rule of common law in relation to when a judge is required or permitted to direct the jury on the issue of a prosecution witness’ motive to lie, common law cases may provide guidance as to what could constitute a substantial and compelling reason to provide the direction. ## Common law authorities on the need for a motive to lie direction		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c4-s2	4.4 When to Give a Direction	7. At common law, judges could consider the prominence of the issue of motive to lie. If the complainant only refers to an absence of a motive to lie once in a lengthy cross-examination, a direction may not be required. However, if that comment was referred to again in counsel’s address, it would assume greater significance and could require a direction (see, e.g. R v RC [2004] VSCA 183). 8. At common law, in most cases where the accused is asked “why would the complainant lie?”, a firm and clear direction was usually necessary to overcome the dangers outlined above (Palmer v The Queen (1998) 193 CLR 1; R v PLK [1999] 3 VR 567; R v RC [2004] VSCA 183). 9. As these dangers were not limited to cases in which the prosecution had directly raised the question when cross-examining the accused, a direction could be required in other contexts as well. For example, it may have been necessary to give a direction if the issue of the complainant’s motive to lie was raised by the complainant in his or her own evidence or in counsel’s addresses (R v RC [2004] VSCA 183; R v PLK [1999] 3 VR 567). 10. Due to the many possible dangers posed by this issue (see above), where the question of motive for lying was raised by way of rhetorical questions in the prosecution’s address, judges were encouraged to assume that the jury may have been misled or diverted from their true task, and to give a direction (R v RC [2004] VSCA 183). 11. It was generally appropriate to give a direction if the complainant’s evidence was uncorroborated, and the question whether s/he had a motive to lie was a significant issue in the case (e.g. due to cross-examination of the complainant on the issue and/or a focus on the issue in counsel’s address) (see, e.g. R v PLK [1999] 3 VR 567). 12. However, where there was more than the uncorroborated evidence of the complainant, motive to lie would assume a less significant role, and a direction may not have been necessary (R v PFG [2006] VSCA 130).		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c4-s3	4.4 When to Give a Direction	13. In many cases where the jury was invited to reject the motive to lie put forward by the defence, it was appropriate to give a direction. This was because there was a risk that, by accepting the prosecution’s invitation, the jury would mistakenly think that, as no other motive to lie has been suggested, the complainant’s credibility was thereby enhanced (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96; R v PLK [1999] 3 VR 567). However, under the Jury Directions Act 2015, the motive to lie direction does not expressly contain a warning that the jury must not treat the rejection of a motive to lie as supporting a complainant’s credibility. Judges should therefore consider whether this risk remains relevant when assessing whether to give a motive to lie direction which has not been sought. 14. A direction may not have been required if the prosecution did not challenge the fact that the complainant had a motive to lie (e.g. if they instead sought to convince the jury that, despite having such a motive, the complainant was telling the truth) (R v Cherry (No.2) [2006] VSCA 271). 15. Where police gave the accused an opportunity, in the record of interview, to suggest a motive to lie, the admission of the record of interview into evidence would not automatically require a Palmer direction to be given (R v Arundell [1999] 2 VR 228). It may, however, be appropriate to excise the parts of the record of interview which relate to the complainant’s motive to lie (Graham v R (1998) 195 CLR 606).		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c4-s4	4.4 When to Give a Direction	## Content of the direction 16. The content of the direction on a prosecution witness’ motive to lie is specified in Jury Directions Act 2015 s 44L(2), as amended in 2017. It substantially modifies the common law direction, and will be the same regardless of whether or not the accused has directly alleged that the complainant had a specific motive to lie. 17. The prescribed direction requires the judge to explain: - The prosecution’s obligation to prove that the accused is guilty; and - That the accused does not have to prove that the witness had a motive to lie.		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c5-s1	4.4 Abolition of common law and prohibited directions	## Abolition of common law and prohibited directions 1. Jury Directions Act 2015 s 44M, as amended in 2017, states: (1) Except as provided by this Division, a trial judge is not required or permitted to direct the jury on the issue of whether a witness for the prosecution has a motive to lie. (2) Any rule of common law to the contrary of subsection (1) is abolished. Notes 1 Subsection (2) abolishes directions based on Palmer v The Queen [1998] HCA 2; 1993 CLR 1. 2 Section 4 applies generally to override any rule of law or practice to the contrary of this Act. 2. Like many Jury* Directions Act 2015* provisions, this abolishes the relevant common law and makes the statutory provisions the sole source of obligation to direct on this topic. However, most equivalent provisions in the Jury Directions Act 2015 do not include the words “or permitted” (see Jury Directions Act 2015 ss 24, 30, 34, 37, 44, 44E, 54, 62. But c.f. Jury Directions Act 2015 ss 40, 44G, 44M, 64D). 3. At common law, directions on motive to lie included:		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c5-s2	4.4 Abolition of common law and prohibited directions	- Where a motive to lie is suggested: telling the jury that, even if they reject a motive to lie put forward by the accused, that does not mean the witness is telling the truth and does not enhance the witness’s credibility in any way. It simply removes one reason for rejecting the witness’s evidence (compare Palmer v The Queen (1998) 193 CLR 1; R v PLK [1999] 3 VR 567; R v SAB (2008) 20 VR 55); and - Where a motive to lie is not suggested: telling the jury that there are many reasons why people may lie; that it is not for the accused to identify a motive for the witness to lie; that it is unfair to expect the accused to identify a motive; that the jury must not speculate about the witness’ motive to lie (if any); that the jury must not reason that because there is no apparent motive to lie then there is no reason for the witness to lie and so the witness must be telling the truth; and that an inability to identify a motive to lie cannot be used to enhance the witness’s credibility (compare R v Costin [1998] 3 VR 659; R v PLK [1999] 3 VR 567; R v RC [2004] VSCA 183). 4. In [Jury Directions: A Jury-Centric Approach Part 2](https://www.justice.vic.gov.au/jury-directions-a-jury-centric-approach-part-2), the Department of Justice identified the following problems with common law directions on motive to lie which the 2017 amendments were designed to address:		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c5-s3	4.4 Abolition of common law and prohibited directions	The content of the [common law] directions may further reinforce the assumption that complainants frequently lie about sexual assault. Although the accused is often responsible for raising the complainant’s motive to lie in the first place, the directions are designed to ensure that there is no disadvantage to the accused, even if he or she raises a ‘spurious allegation of fabrication’. Even if the complainant can refute the allegation of motive to lie this does not operate to his or her benefit. In particular, the problematic Palmer direction provides that if the jury rejects the alleged motive of the witness to lie (for example, because the jury accepts the evidence given by the witness in rebuttal of the allegation raised by defence counsel) or decides that the witness did not have a motive to lie, this cannot enhance the credibility of the witness. Such a direction is unfair to the witness and unfairly advantageous to the accused. It suggests to the jury that even if it rejects the alleged motive to lie, the complainant should be regarded with suspicion. It may also suggest to the jury that a complainant has hidden motives. … Also, the directions limit how the jury may use the absence of a motive to lie. For example, the jury may be told that if it rejects the defence’s assertion of a motive to lie and accepts the prosecution submission, this cannot be relied on to show that the complainant is telling the truth or to enhance the credibility of the complainant’s evidence. Likewise, if the prosecution raises the motive to lie, the jury may be told that it should not speculate on motives that the complainant might have for lying. Research shows that limiting directions of this nature are often ineffective. There is a risk that they may backfire and have the opposite effect intended, leading jurors to speculate. Finally, the number of matters that need to be covered in the directions makes appeals and retrials on the adequacy of directions more likely. The length and complexity of these directions also makes them more difficult for jurors to understand and apply (at 16–17). 5. The Department’s report further explains the purpose of ss 44L and 44M as follows:		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c5-s4	4.4 Abolition of common law and prohibited directions	To clarify and simplify this area of the law, and to ensure that directions are fair to both the accused and the complainant (or witness), the Bill will set out what trial judges must include in a direction. These requirements are much shorter and simpler than the common law directions. The Bill will also provide that the trial judge must not otherwise direct on the issue of whether a prosecution witness has a motive to lie. This will abolish the Palmer direction and leave it to the jury to decide how motive to lie (or lack of such a motive) affects the witness’s credibility, as is appropriate (at 17). 6. These passages indicate that s 44L should be viewed as a complete statement of what the judge needs to tell the jury about motive to lie and that features of the common law directions should not be read into the section. 7. When giving a s 44L direction, the judge should not comment on the plausibility of a suggested motive to lie, or suggests reasons why a jury might reject a possible motive to lie, beyond any obligation to remind the jury of the prosecution and defence arguments (see Briggs v The King [2024] VSCA 80, [128]–[134]). ## Section 44L and unfavourable prosecution witnesses		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4-c5-s5	4.4 Abolition of common law and prohibited directions	8. As explained above, s 44L only explicitly allows the defence to request the direction. Where the prosecution believes the direction should be given, the prosecution must persuade the judge to exercise the discretion to give a direction under s 16 on the basis that there are substantial and compelling reasons for giving the direction. 9. One scenario which may cause difficulties is where the prosecution cross-examines a witness under Evidence Act 2008 s 38 on the basis that the witness gave evidence that is not favourable to the prosecution. See also 4.20 Unfavourable Witnesses. 10. By its terms, Jury Directions Act 2015 s 44L specifies the content of any direction where “the issue of whether a witness for the prosecution has a motive to lie is raised during a trial”. By s 44M, a trial judge is not “required or permitted” to direct the jury on this issue other than as provided by Division 10 of Part 4 (ss 44L and 44M). 11. Where the prosecution cross-examines its own witness and suggests that the witness has a motive to lie (such as for loyalty to the accused, or out of fear of the accused), it is possible that the directions in s 44L(2) (that it is the prosecution’s obligation to prove guilt and that the accused does not have to prove that the witness had a motive to lie) do not engage with the real issues in the case. 12. Trial judges will need to consider whether: 1. Division 10 of Part 4 can be read down to permit a judicial direction about the relevance of the motive identified by the prosecution and how it interacts with the burden and standard of proof; or 1. Division 10 of Part 4 prohibits any other directions about a prosecution witness’ motive to lie, and so no relevant direction is possible. In that case, the judge will remain able to remind the jury of the evidence and arguments of the parties (Jury Directions Act 2015 ss 65, 66), and may make a comment about how the prosecution arguments interact with the burden and standard of proof. Last updated: 14 May 2024		87	4 – Evidentiary Directions	4.4 Prosecution Witness's Motive to Lie.docx	187	https://www.judicialcollege.vic.edu.au/media/954/file
4.4.1-c1-s1	4.4.1 Charge: Motive to Lie	# 4.4.1 Charge: Motive to Lie In this case, [identify how issue of whether the witness has a motive to lie has been raised]. The [suggestion/implication] is that NOW has a motive to give false evidence. If you accept that NOW [identify relevant motive], or might have [identify relevant motive], then you will need to consider whether that affected the evidence s/he gave. On the other hand, if you reject the idea that NOW [identify relevant motive], then you will ignore that argument when you are deciding what weight to give his/her evidence. Remember, it is for the prosecution to prove, beyond reasonable doubt, that the accused is guilty. You can only convict NOA of [insert offence] if, on the basis of all the evidence, you are satisfied of his/her guilt beyond reasonable doubt. The accused does not have to prove that NOW had a reason for giving false evidence. [Refer to relevant evidence and arguments of the parties.] Last updated: 2 October 2017		88	4 – Evidentiary Directions	4.4.1 Charge - Motive to Lie.docx	194	https://www.judicialcollege.vic.edu.au/media/956/file
4.4.2-c1-s1	4.4.2 Charge: No Motive to Lie	# 4.4.2 Charge: No Motive to Lie In this case, [identify how issue of whether the witness has a motive to lie has been raised]. The [suggestion/implication] is that NOW had no reason to give false evidence. Remember, it is for the prosecution to prove, beyond reasonable doubt, that the accused is guilty. You can only convict NOA of [insert offence] if, on the basis of all the evidence, you are satisfied of his/her guilt beyond reasonable doubt. The accused does not have to prove that NOW had a reason for giving false evidence. It would therefore be wrong to think that unless you can find a reason for NOW to give false evidence, then NOW must be telling the truth. If you did that, you would be expecting NOA to prove his/her innocence. And that would be contrary to the rule that the prosecution must prove the accused’s guilt beyond reasonable doubt. Last updated: 2 October 2017		89	4 – Evidentiary Directions	4.4.2 Charge - No Motive to Lie.docx	194	https://www.judicialcollege.vic.edu.au/media/955/file
4.5-c1-s1	4.5 Confessions and Admissions	# 4.5 Confessions and Admissions ## Terminology 1. At common law, a distinction is drawn between a "confession" and an "admission".[^2] This is not the case under the Evidence Act 2008, which uses the term "admission" to refer to both types of evidence. 2. Consequently, although this topic is titled "Confessions and Admissions" (to make clear the fact that they cover both types of evidence), in the remainder of this commentary, only the term "admission" is used.	[^2]: At common law, in a "confession" the accused directly discloses his or her guilt of an offence, while in an "admission" the accused merely discloses incriminatory facts. Despite this differentiation, at common law the same legal principles apply to both types of evidence (see R v DD (2007) 19 VR 143; [2007] VSCA 317).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c2-s1	4.5 What is an Admission?	## What is an Admission? 1. The Dictionary to the Evidence Act 2008 defines an "admission" as a previous representation by a party to a proceeding that is adverse to the person’s interest in the outcome of proceedings. 2. This definition (which must be read in conjunction with the definition of "previous representation") covers both express admissions and implied admissions by conduct.[^3] It includes statements that may rebut a possible defence, such as intoxication. However, conduct such as producing a writing sample, or a refusal to take part in an identification parade, is not an "admission" (See R v Fowler (2003) 151 A Crim R 166; R v Esposito (1998) 45 NSWLR 442; R v Horton (1998) 104 A Crim R 306; Re A (a Child) (2000) 115 A Crim R 1; R v Knight (2001) 120 A Crim R 381). 3. Admissions can be made to police or to other witnesses (R v Robertson [1998] 4 VR 30; R v Buckley (2004) 10 VR 215). 4. One way in which an accused may admit his or her involvement in a crime is by pleading guilty at a committal hearing. Such a plea amounts to a solemn confession of every element of the offence (R v D’Orta-Ekenaike [1998] 2 VR 140; R v Rustum [2005] VSCA 142).	[^3]: Implied admissions by conduct include exculpatory statements that are relied upon as lies, or other post–offence conduct, that can be used as 'incriminating conduct' within the meaning of Jury Directions Act 2015 s 18.	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c3-s1	4.5 Admissibility of Admissions	## Admissibility of Admissions 1. The admissibility of admissions is governed by Part 3.4 of the Evidence Act 2008. 2. Where a statement contains both inculpatory and exculpatory elements (a "mixed statement"), the exculpatory elements will be admissible if reasonably necessary in order to explain the admission (Evidence Act 2008 s 81(2)) 3. This topic does not address the admissibility of admissions. The focus is solely on the directions to be given when an admission is admitted.		90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c4-s1	4.5 Issues to be Addressed in the Charge	## Issues to be Addressed in the Charge 1. Depending on the circumstances of the case, a judge may need to: 1. Direct the jury about using an admission; 1. Warn the jury that evidence of an admission may be unreliable. 1. These directions are addressed in turn below.		90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c5-s1	4.5 Using an Admission	## Using an Admission 1. The jury may only use an alleged admission if they are satisfied that: 1. It was made by the accused;[^4] and 1. Its substance is truthful (Burns v R (1975) 132 CLR 258). 2. It is essential that the issues of whether the alleged admission was made, and whether it was truthful, are kept strictly separate. The presence of truthful facts in the alleged admission must not be allowed to distract the jury from the possibility that the admission was fabricated by a person aware of the underlying facts (Burns v R (1975) 132 CLR 258; R v Gay [1976] VR 577). 3. In some cases, it will also be necessary to direct the jury of the need to be satisfied that an alleged admission related to the acts charged in the indictment and not some other, uncharged, act. This is especially important where the alleged admission is made in general terms, such as agreeing that general allegations of sexual misconduct are true (Payne v R [2015] VSCA 291, [13]; Choudhary v R [2013] VSCA 325; R v MMJ (2006) 166 A Crim R 501). 4. If the jury cannot be satisfied that the admission related to specific conduct alleged in the indictment, then it can only be used to assess the nature of the relationship between the parties, such as to show the existence of a sexual relationship (see Payne v R [2015] VSCA 291; Choudhary v R [2013] VSCA 325; R v MMJ (2006) 166 A Crim R 501). ### The Accused Must Have Made the Admission	[^4]: Section 87 of the Evidence Act 2008 allows admissions by a third party with the authority of the accused to also be taken as admissions by the accused. [^5]: These factors may also be relevant to the admissibility of the admission (see Evidence Act 2008 s 85). The fact that the judge has taken such factors into account in determining that the admission is admissible does not mean that the jury must accept the evidence as truthful and reliable (see R v Williams (1981) 4 A Crim R 441; R v Blades; ex parte Attorney-General [2001] QCA 384; R v Basto (1954) 91 CLR 628; Burns v R (1975) 132 CLR 258).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c5-s2	4.5 Using an Admission	5. The jury must decide whether the purported admission was made in the terms alleged by the witness (i.e. the witness’s evidence about the admission was "accurate") (McKinney v R (1991) 171 CLR 468). 6. The jury must assess this matter based on the whole of the relevant evidence (Burns v R (1975) 132 CLR 258). 7. Evidence that suggests that the content of an admission is untrue will cast doubt on the likelihood that the admission was made (McKinney v R (1991) 171 CLR 468). 8. Evidence concerning the circumstances of the alleged admission and the credibility of relevant witnesses may also bear on the probability that the accused made the admission (R v Gay [1976] VR 577).[^5] ### The Admission Must Have Been Truthful 9. The jury must also decide whether the purported admission constitutes a truthful representation of the accused’s involvement in the crime (Burns v R (1975) 132 CLR 258). 10. This requires the jury to consider whether the words used in the admission were intended to be an admission of guilt of the offence charged, and did not bear some other innocent meaning (R v Buckley (2004) 10 VR 215). 11. It also requires the jury to decide that the accused was not boasting about or exaggerating his or her actions (R v Mitchell [2006] VSCA 289; R v Koeleman (2000) 2 VR 20). 12. The jury only needs to decide whether the statement was true in relation to the parts in which the accused implicates himself or herself in the commission of the offence. The jury does not need to decide that the statement is true in all particulars (R v Burns [1975] VR 241). ## When should the jury be directed about using an admission?	[^4]: Section 87 of the Evidence Act 2008 allows admissions by a third party with the authority of the accused to also be taken as admissions by the accused. [^5]: These factors may also be relevant to the admissibility of the admission (see Evidence Act 2008 s 85). The fact that the judge has taken such factors into account in determining that the admission is admissible does not mean that the jury must accept the evidence as truthful and reliable (see R v Williams (1981) 4 A Crim R 441; R v Blades; ex parte Attorney-General [2001] QCA 384; R v Basto (1954) 91 CLR 628; Burns v R (1975) 132 CLR 258).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c5-s3	4.5 Using an Admission	13. The need for a direction depends on whether a direction is sought and whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction (Jury Directions Act 2015 ss 12, 14, 16). See 3.1 Directions Under Jury Directions Act 2015 for information on when directions are required. 14. Ordinarily, the jury will be able to evaluate evidence of an admission without assistance, and so a Burns direction will not be required (Carr v R (1988) 165 CLR 314; Bromley v R (1986) 161 CLR 315). 15. However, a direction may be necessary if the evidence is prone to misuse, or if the jury may fail to distinguish or apply the two considerations of whether the admission was made and whether it was truthful (Burns v R (1975) 132 CLR 258; R v Perera [1986] 1 Qd R 211; Cotic v R (2000) 118 A Crim R 393; R v D’Orta-Ekenaike [1998] 2 VR 140). 16. Where there is no dispute that an admission, if made, was truthful, the judge may direct the jury only on the need to decide whether the accused made the admission (R v Brooks (1998) 103 A Crim R 234). 17. Conversely, if there is no dispute that the admission was made, the judge should not direct the jury on the need to be satisfied that the admission was made. Such a direction would be superfluous and distracting (De Silva v The Queen [2019] HCA 48, [33]). 18. The need for a Burns direction does not depend on whether the admission was made to police or to some other witness. A direction may be required regardless of the person who witnessed the previous representation (R v Robertson [1998] 4 VR 30; R v Buckley (2004) 10 VR 215).	[^4]: Section 87 of the Evidence Act 2008 allows admissions by a third party with the authority of the accused to also be taken as admissions by the accused. [^5]: These factors may also be relevant to the admissibility of the admission (see Evidence Act 2008 s 85). The fact that the judge has taken such factors into account in determining that the admission is admissible does not mean that the jury must accept the evidence as truthful and reliable (see R v Williams (1981) 4 A Crim R 441; R v Blades; ex parte Attorney-General [2001] QCA 384; R v Basto (1954) 91 CLR 628; Burns v R (1975) 132 CLR 258).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c5-s4	4.5 Using an Admission	19. At common law, if the relevant admission consisted of a guilty plea made at a committal hearing (which has subsequently been changed), the judge was required to direct the jury about how they could use evidence of the plea (R v D’Orta-Ekenaike [1998] 2 VR 140; R v Rustum [2005] VSCA 142).	[^4]: Section 87 of the Evidence Act 2008 allows admissions by a third party with the authority of the accused to also be taken as admissions by the accused. [^5]: These factors may also be relevant to the admissibility of the admission (see Evidence Act 2008 s 85). The fact that the judge has taken such factors into account in determining that the admission is admissible does not mean that the jury must accept the evidence as truthful and reliable (see R v Williams (1981) 4 A Crim R 441; R v Blades; ex parte Attorney-General [2001] QCA 384; R v Basto (1954) 91 CLR 628; Burns v R (1975) 132 CLR 258).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c5-s5	4.5 Using an Admission	## Content of a Burns Direction	[^4]: Section 87 of the Evidence Act 2008 allows admissions by a third party with the authority of the accused to also be taken as admissions by the accused. [^5]: These factors may also be relevant to the admissibility of the admission (see Evidence Act 2008 s 85). The fact that the judge has taken such factors into account in determining that the admission is admissible does not mean that the jury must accept the evidence as truthful and reliable (see R v Williams (1981) 4 A Crim R 441; R v Blades; ex parte Attorney-General [2001] QCA 384; R v Basto (1954) 91 CLR 628; Burns v R (1975) 132 CLR 258).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c5-s6	4.5 Using an Admission	20. The content of a Burns direction will depend on the circumstances of the case (Burns v R (1975) 132 CLR 258; Ross v R (1922) 30 CLR 246; Carr v R (1988) 165 CLR 314; McKay v R (1935) 54 CLR 1; R v Mitchell [2006] VSCA 289; R v Lewis (2000) 1 VR 290). 21. Where a full Burns direction is required, the judge must direct the jury that they may only use an alleged admission if they are satisfied that it was made by the accused and was truthful (Burns v R (1975) 132 CLR 258; R v PAB (2006) 162 A Crim R 449). 22. At common law it was customary to direct the jury that these two matters must be established beyond reasonable doubt (R v Franklin (2001) 3 VR 9; R v Kotzman [1999] 2 VR 123; Walford v McKinney [1997] 2 VR 353; R v Russo (2004) 11 VR 1; McKinney v R (1991) 171 CLR 468). 23. Under the Jury Directions Act 2015, the only matters that must be proved beyond reasonable doubt are the elements and the absence of any relevant defences (Jury Directions Act 2015 s 61. See also Payne v R [2015] VSCA 291, [13]; DPP v Roder [2024] HCA 15, [15]). 24. It may therefore be sufficient to direct the jury that it needs to decide whether the prosecution has proved that the evidence of the admissions was sufficiently reliable to establish guilt beyond reasonable doubt (R v ZT [2025] HCA 9, [66]-[68]).	[^4]: Section 87 of the Evidence Act 2008 allows admissions by a third party with the authority of the accused to also be taken as admissions by the accused. [^5]: These factors may also be relevant to the admissibility of the admission (see Evidence Act 2008 s 85). The fact that the judge has taken such factors into account in determining that the admission is admissible does not mean that the jury must accept the evidence as truthful and reliable (see R v Williams (1981) 4 A Crim R 441; R v Blades; ex parte Attorney-General [2001] QCA 384; R v Basto (1954) 91 CLR 628; Burns v R (1975) 132 CLR 258).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c5-s7	4.5 Using an Admission	25. However, in some cases, an admission may be substantially the only evidence of one or more elements. In such cases, it may be appropriate for the judge to clearly identify for the jury the importance of the admission. Judges should discuss the issue with counsel and hear submissions on what additional directions or comments are appropriate. One option is to refer to the evidence of the confession or admission and direct the jury that it must be satisfied that that evidence proves the element beyond reasonable doubt (Jury Directions Act 2015 s 61, Example). The judge should identify the charge or charges in respect of which the evidence is capable of constituting an admission (CG v R [2011] VSCA 211). 26. In some cases, it will not be possible to link an admission, even if made, to particular charges. Where that occurs, the jury must be directed to only use the evidence to assess the general relationship between the parties, such as to show that a sexual relationship existed (Payne v R [2015] VSCA 291, [11]; Choudhary v R [2013] VSCA 325). 27. Where relevant, the jury should be told to consider whether a witness’s evidence of the terms of an admission contains information which could only have come from the accused. The inclusion of such information reduces the chance that the admission was invented by the witness (Burns v R (1975) 132 CLR 258; R v Georgiev [2001] VSCA 18). 28. Conversely, in some cases the jury should be told that no conclusions can be drawn from the inclusion of information which the witness would have known even if the accused had not made an admission (R v Gay [1976] VR 577). 29. At common law, part of the rationale for allowing confessions and admissions to be led in evidence is that it is unlikely that an innocent person would implicate himself or herself in a crime (Burns v R (1975) 132 CLR 258).	[^4]: Section 87 of the Evidence Act 2008 allows admissions by a third party with the authority of the accused to also be taken as admissions by the accused. [^5]: These factors may also be relevant to the admissibility of the admission (see Evidence Act 2008 s 85). The fact that the judge has taken such factors into account in determining that the admission is admissible does not mean that the jury must accept the evidence as truthful and reliable (see R v Williams (1981) 4 A Crim R 441; R v Blades; ex parte Attorney-General [2001] QCA 384; R v Basto (1954) 91 CLR 628; Burns v R (1975) 132 CLR 258).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c5-s8	4.5 Using an Admission	30. This rationale should not be included as part of a charge on confessions or admissions. It is undesirable to give the jury general directions about what kinds of evidence are likely to be true and the direction does not help a jury decide whether to accept the evidence. Such a direction would be erroneous if it suggested that there was a legal presumption that admissions are truthful (Burns v R (1975) 132 CLR 258; Tunja v R (2013) 41 VR 208; Mule v R [2005] HCA 49; Xypolitos v R (2014) 44 VR 423). 31. If the case involves a written admission that has been altered, the jury should be told that they may only use that admission if they are satisfied that the alterations were adopted by the accused (Walford v McKinney [1997] 2 VR 353). 32. Where the evidence is ambiguous, the judge must also direct the jury that they need to determine whether the words used constitute an admission of the wrongdoing alleged in the case. This requires the jury to consider whether the accused effectively admitted his or her involvement in the offence charged (Magill v R (2013) 42 VR 616. See also R v Ly, NSWCCA, 25/5/1994; R v Khalil (1987) 44 SASR 23). 33. If the admission consists of a guilty plea made at a committal hearing (which has subsequently been changed), the direction will explain that the jury may only use the evidence of that plea if they are satisfied that the plea:	[^4]: Section 87 of the Evidence Act 2008 allows admissions by a third party with the authority of the accused to also be taken as admissions by the accused. [^5]: These factors may also be relevant to the admissibility of the admission (see Evidence Act 2008 s 85). The fact that the judge has taken such factors into account in determining that the admission is admissible does not mean that the jury must accept the evidence as truthful and reliable (see R v Williams (1981) 4 A Crim R 441; R v Blades; ex parte Attorney-General [2001] QCA 384; R v Basto (1954) 91 CLR 628; Burns v R (1975) 132 CLR 258).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c5-s9	4.5 Using an Admission	- Was a true acknowledgment of guilt of the offence charged; and - Was intended to be a true acknowledgment of guilt of the offence charged (R v D’Orta-Ekenaike [1998] 2 VR 140; R v Perera [1986] 1 Qd R 211; Cotic v R (2000) 118 A Crim R 393). 34. In such cases, the judge should also explain the ways in which the accused disputes the evidentiary value of the plea (R v D’Orta-Ekenaike [1998] 2 VR 140; R v Rustum [2005] VSCA 142).	[^4]: Section 87 of the Evidence Act 2008 allows admissions by a third party with the authority of the accused to also be taken as admissions by the accused. [^5]: These factors may also be relevant to the admissibility of the admission (see Evidence Act 2008 s 85). The fact that the judge has taken such factors into account in determining that the admission is admissible does not mean that the jury must accept the evidence as truthful and reliable (see R v Williams (1981) 4 A Crim R 441; R v Blades; ex parte Attorney-General [2001] QCA 384; R v Basto (1954) 91 CLR 628; Burns v R (1975) 132 CLR 258).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c6-s1	4.5 Mixed statements	## Mixed statements 1. In some cases, a statement will contain both an inculpatory admission and an exculpatory explanation (a ‘mixed statement’). As a matter of fairness, the prosecution may not rely solely on the inculpatory parts of the statement, but must tender the whole statement (R v Rudd (2009) 23 VR 444). 2. When the jury receives a mixed statement, a party may request a direction on how the jury should treat the inculpatory and exculpatory parts of the statement (R v Rudd (2009) 23 VR 444). 3. Such a direction: - May tell the jury that it is for the jury to determine what weight to give the different parts of the statement; - Must not convey that the jury are bound as a matter of law to give less weight to some parts of the statement than others; - Should not state why admissions against interest are commonly regarded as reliable evidence (R v Rudd (2009) 23 VR 444; R v Berry & Wenitong (2007) 17 VR 153; Mule v R [2005] HCA 49). 4. It is not necessary for the jury to be asked to decide whether it accepts that the exculpatory part of a mixed statement was made. The requirement that the statement was made only applies to a disputed confessional statement (De Silva v The Queen [2019] HCA 48, [34]).		90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c7-s1	4.5 Unreliability of Admission Evidence	## Unreliability of Admission Evidence 1. A judge may be required to warn the jury that evidence of an admission may be unreliable (Jury Directions Act 2015 s 32). 2. This is a particular form of a s 32 unreliable evidence warning. This topic should therefore be read in conjunction with 4.21 Unreliable Evidence Warning. ## When must a s 32 unreliability warning be given? 3. A judge must give a s 32 unreliability warning if: 1. A party in a jury trial requests such a warning; 1. The evidence in question is "of a kind that may be unreliable"; and 2. There are no good reasons for not doing so (Jury Directions Act 2015 s 32). 4. See 4.21 Unreliable Evidence Warning for general information concerning the first and third requirements. 5. In relation to the second requirement, s 31(a) states that evidence of an admission is evidence "of a kind that may be unreliable". 6. However, a s 32 unreliability warning is not required simply because evidence of an admission has been led (and the other requirements of s 32 have been met). Such a warning will only be necessary if the judge finds that the specific evidence in the case is "of a kind that may be unreliable" (see R v Clark (2001) 123 A Crim R 506 Heydon J, [70]). 7. While evidence of an admission may be "of a kind that may be unreliable", this will not always be the case. Even if evidence falls within the description in s 31(a), judges must always consider whether the specific evidence given in the trial in question is "of a kind that may be unreliable" (see R v Clark (2001) 123 A Crim R 506 Heydon J, [70]). 8. Section 32 creates a test of "possibility". The question is whether the evidence is of a kind that "may be" unreliable (R v Flood [1999] NSWCCA 198, [3]). 9. In determining whether to give a s 32 warning, the judge must consider the issues that were raised in the trial about the reliability of the admission evidence (R v Fowler (2003) 151 A Crim R 166; Em v R [2006] NSWCCA 336). 10. It will usually be unnecessary to give a warning if:	[^6]: Some of the risks posed by evidence of previous representations include: That in repeating what the speaker said, the original words or their effect may not have been accurately recalled and repeated; That any weaknesses of perception, memory, narration skill and sincerity of the speaker and the person reciting the representation may have been compounded; That the representation was not made in the court environment and may have been subject to pressures that resulted in a false account being given; That the representation was not made on oath or affirmation, and so may not have been truthful; That the jury was unable to assess the credibility of the speaker at the time he or she made the representation, and so are unable to know whether or not he or she was being honest (see, e.g. R v Harbulot [2003] NSWCCA 141; R v Vincent [2002] NSWCCA 369; R v Nemeth [2002] NSWCCA 281; Brown v R [2006] NSWCCA 69).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c7-s2	4.5 Unreliability of Admission Evidence	- The reliability of the evidence is not in issue, or - The jury can safely use its common sense and experience to assess any factors that affect the reliability of the evidence (see Em v R [2006] NSWCCA 336; R v Fowler (2003) 151 A Crim R 166; R v Stewart (2001) 52 NSWLR 301; R v Baartman [2000] NSWCCA 298; R v Kanaan [2006] NSWCCA 109). 11. A warning will generally not be necessary where it is only the witness’s honesty that is attacked, unless the witness falls into a category mentioned in s 32. In general, the court has no particular advantage over the jury in determining whether a witness is telling the truth (R v Fowler (2003) 151 A Crim R 166). 12. However, if the witness’s honesty is attacked due to the fact that he or she falls within a special class (e.g. where he or she is a prison informer or a criminally concerned witness), a s 32 warning may be required on another ground (see R v Fowler (2003) 151 A Crim R 166). See 4.21 Unreliable Evidence Warning for information concerning the other grounds on which a s 32 warning may be required. ## Content of an unreliable evidence warning	[^6]: Some of the risks posed by evidence of previous representations include: That in repeating what the speaker said, the original words or their effect may not have been accurately recalled and repeated; That any weaknesses of perception, memory, narration skill and sincerity of the speaker and the person reciting the representation may have been compounded; That the representation was not made in the court environment and may have been subject to pressures that resulted in a false account being given; That the representation was not made on oath or affirmation, and so may not have been truthful; That the jury was unable to assess the credibility of the speaker at the time he or she made the representation, and so are unable to know whether or not he or she was being honest (see, e.g. R v Harbulot [2003] NSWCCA 141; R v Vincent [2002] NSWCCA 369; R v Nemeth [2002] NSWCCA 281; Brown v R [2006] NSWCCA 69).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c7-s3	4.5 Unreliability of Admission Evidence	13. A s 32 unreliability warning must: 1. Warn the jury that the evidence may be unreliable; 3. Inform the jury of the significant matters that may cause it to be unreliable; and 4. Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it (Jury Directions Act 2015 s 32). 14. See 4.21 Unreliable Evidence Warning for information concerning the first and third requirements. 15. When a party requests a s 32 warning, it must identify the significant matters that may make the evidence unreliable. The judge will need to consider which of those matters are significant and must direct the jury accordingly (see Jury Directions Act 2015 s 32). 16. As evidence of an admission is evidence of a previous representation, a judge may need to direct the jury about any significant matters that make the evidence potentially unreliable due to its nature as a previous representation (R v Johnston [2004] NSWCCA 58; ALRC Report 26, Volume 1, 1985 (Interim), [753]).[^6] See 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information. 17. In some cases, the following matters may also affect the reliability of admission evidence:	[^6]: Some of the risks posed by evidence of previous representations include: That in repeating what the speaker said, the original words or their effect may not have been accurately recalled and repeated; That any weaknesses of perception, memory, narration skill and sincerity of the speaker and the person reciting the representation may have been compounded; That the representation was not made in the court environment and may have been subject to pressures that resulted in a false account being given; That the representation was not made on oath or affirmation, and so may not have been truthful; That the jury was unable to assess the credibility of the speaker at the time he or she made the representation, and so are unable to know whether or not he or she was being honest (see, e.g. R v Harbulot [2003] NSWCCA 141; R v Vincent [2002] NSWCCA 369; R v Nemeth [2002] NSWCCA 281; Brown v R [2006] NSWCCA 69).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c7-s4	4.5 Unreliability of Admission Evidence	- The possibility that the admission was induced in some way that undermines its reliability (see R v Tofilau (2006) 13 VR 28); - The possibility that the accused may have perceived that making an untrue admission would be both safe and beneficial, such as if the accused was bragging, exaggerating or fantasising (see R v Tofilau (2006) 13 VR 28; R v De Martin [2009] NSWDC 113; R v Khalil (1987) 44 SASR 23); - The possibility that the accused suffered from a mental illness or operated in a mental state that could have led to him or her making a false admission (see Mallard v R (2005) 224 CLR 125; Burns v R (1975) 132 CLR 258); - The fact that the witness giving evidence of the admission has an interest in the outcome of the proceeding, and so may be biased or have a motive to be untruthful (Derbas v R [2007] NSWCCA 118); - The fact that the evidence was easy to manufacture, hard to deny and very difficult to test (R v Robinson [2003] NSWCCA 188).	[^6]: Some of the risks posed by evidence of previous representations include: That in repeating what the speaker said, the original words or their effect may not have been accurately recalled and repeated; That any weaknesses of perception, memory, narration skill and sincerity of the speaker and the person reciting the representation may have been compounded; That the representation was not made in the court environment and may have been subject to pressures that resulted in a false account being given; That the representation was not made on oath or affirmation, and so may not have been truthful; That the jury was unable to assess the credibility of the speaker at the time he or she made the representation, and so are unable to know whether or not he or she was being honest (see, e.g. R v Harbulot [2003] NSWCCA 141; R v Vincent [2002] NSWCCA 369; R v Nemeth [2002] NSWCCA 281; Brown v R [2006] NSWCCA 69).	90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c8-s1	4.5 Withdrawn Pre-trial Disclosure or Concessions	## Withdrawn Pre-trial Disclosure or Concessions 1. As part of pre-trial disclosure obligations, the defence must file a response to the summary of the prosecution opening and a defence response to the prosecution’s notice of pre-trial admissions (Criminal Procedure Act 2009 s 183). In the course of complying with these obligations, the defence may make some admissions. 2. While the defence is free to depart from any admissions made in those documents, or in the defence opening, the judge and, with leave, the prosecutor may make strong comments on that change of position (R v Shalala (2007) 17 VR 133; Sumner v R [2010] VSCA 298). 3. The judge may only grant leave to the prosecutor to comment on the departure if the comment is relevant, the comment is permitted by another Act or a rule of law and the comment is not unfairly prejudicial (Criminal Procedure Act 2009 s 237). 4. In addition, the jury may only use admissions in a pre-trial document if the judge allows the admissions to be received in evidence. This may depend on whether the prosecution can establish that it is reasonably open to find that the admission was made by a person who had authority on behalf of the accused to make such an admission (see Evidence Act 2008 s 87 and Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314).		90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5-c9-s1	4.5 Timing of the Direction	## Timing of the Direction 1. A direction about admission evidence may be given at the time the evidence is received and/or in the judge’s final charge (Burns v R (1975) 132 CLR 258). 2. A direction that is given when the evidence is received does not always need to be repeated in the final charge (Burns v R (1975) 132 CLR 258). Last updated: 23 June 2025		90	4 – Evidentiary Directions	4.5 Confessions and Admissions_0.docx	194	https://www.judicialcollege.vic.edu.au/media/692/file
4.5.1-c1-s1	4.5.1 Charge: Confessions and Admissions	# 4.5.1 Charge: Confessions and Admissions In this case, you heard evidence that NOA admitted that s/he had [describe the content of the admission]. The prosecution says that this evidence is relevant to [identify relevant charge and the way in which that admission is alleged to be relevant]. Before you can use this evidence, you must consider two matters. First, you must accept that the accused actually made the alleged admission in the terms alleged by NOW. That is, you must accept that NOA [insert relevant details, e.g. “said to NOW ‘I killed NOV’”].[^2] Secondly, you must accept that the accused’s alleged admission was truthful. This requires you to accept that when NOA [insert relevant details, e.g. “said ‘I killed NOV’”], s/he meant to admit [describe fact in issue, e.g. "that s/he killed NOV"], and that that admission was, in fact, true.[^3] [If a warning under Jury Directions Act 2015 s 32 is necessary, add the following shaded section.] In considering this evidence, I must warn you of the need for caution when considering NOW’s evidence of the alleged admission. ## Matters that may cause unreliability I must give you this warning[^4] because it is the experience of the law that evidence of admissions may be unreliable. This is because [identify the significant matters that may cause the evidence to be unreliable. Some possibilities include:	[^2]: This part of the charge may be deleted if the accused does not dispute making the admission, but simply disputes its truthfulness. [^3]: This part of the charge may be deleted if the accused disputes making the admission, but does not dispute its content. [^4]: The judge should add any other matters that may cause the evidence to be unreliable, such as if the evidence comes from an accomplice. If the evidence is given by a prison informer, use 4.23.1 Charge: Confession to Prison Informer instead.	91	4 – Evidentiary Directions	4.5.1 Charge - Confessions and Admissions.docx	202	https://www.judicialcollege.vic.edu.au/media/694/file
4.5.1-c1-s2	4.5.1 Charge: Confessions and Admissions	- NOW may not have accurately recalled or repeated NOA’s admission and may have changed its meaning; - It was not possible for you to assess NOA’s demeanour* at the time s/he made the admission, which may make it harder to assess whether the admission was true; - The process of repeating a statement compounds any weaknesses* of the people involved, such as imperfect perception, memory or sincerity. Errors can occur when the original statement is made, when it is heard or when it is repeated in court. This means that even if you accept NOW’s evidence as truthful, it might not be an accurate representation of what happened – either because of problems in what NOW heard or remembered, or because NOA’s statement itself was not accurate or truthful. - [Describe relevant inducement or other relevant circumstance] may have caused NOA to make a false statement; - NOA may have been bragging, exaggerating or fantasising* about his/her *actions; - NOW may have reasons for giving untruthful evidence of an admission, such as [describe any relevant reasons, such as bias, etc.]; - An untruthful admission may be easy for a witness to manufacture, hard for an accused to deny and very difficult to test in court; - NOA may have been subject to pressures that caused him/her to make a false admission, which you do not know about; - The admission was not made in a court environment, and so NOA was not under the same obligation to tell the truth as s/he would have been if s/he gave evidence in court.] [The judge should also identify any other factors* that may have a bearing on the reliability of the evidence in the case, such as any inconsistencies that exist between different admissions that have been made*.]	[^2]: This part of the charge may be deleted if the accused does not dispute making the admission, but simply disputes its truthfulness. [^3]: This part of the charge may be deleted if the accused disputes making the admission, but does not dispute its content. [^4]: The judge should add any other matters that may cause the evidence to be unreliable, such as if the evidence comes from an accomplice. If the evidence is given by a prison informer, use 4.23.1 Charge: Confession to Prison Informer instead.	91	4 – Evidentiary Directions	4.5.1 Charge - Confessions and Admissions.docx	202	https://www.judicialcollege.vic.edu.au/media/694/file
4.5.1-c2-s1	4.5.1 Warning	## Warning The law says that every jury must take this potential unreliability into account when considering evidence of an admission. You must take it into account in determining whether you accept NOW’s evidence at all, and if you do accept it, in deciding what weight to give to that evidence. In this case, the prosecution argued that NOA made the alleged admission, and that that admission was truthful. [Describe relevant prosecution evidence and/or arguments.] The defence denied this, arguing [describe relevant defence* arguments, e.g.* "that NOA never made the admission" or "that while NOA did make an admission, his/her statement was not truthful because s/he was only boasting about having committed the offence" or "that while NOA made a truthful statement, it was not an admission that s/he had …"]. [Summarise* relevant defence evidence.] It is for you to determine, based on all of the relevant evidence, whether NOA made the statement NOW said s/he did, and* whether that statement was truthful. Unless you accept that both of these matters have been proven, you must disregard the evidence of NOA’s alleged admission. [If the admission is the only evidence of one or more elements, add the following shaded section.] You will remember my directions the prosecution must prove its case beyond reasonable doubt. In this case, the only evidence that [identify relevant elements or facts in issue] is the evidence that [describe evidence of admission]. You therefore cannot be satisfied that the prosecution has proved its case beyond reasonable doubt unless you are satisfied this evidence proves [identify relevant element] beyond reasonable doubt. Last updated: 14 May 2024		91	4 – Evidentiary Directions	4.5.1 Charge - Confessions and Admissions.docx	202	https://www.judicialcollege.vic.edu.au/media/694/file
4.5.2-c1-s1	4.5.2 Charge: Withdrawn Committal Plea	# 4.5.2 Charge: Withdrawn Committal Plea It is not disputed that NOA initially pleaded guilty to NOO.[^2] You can use this guilty plea as an admission of guilt. However, before you can do so, you must consider two matters. First, you must accept that the plea was a true acknowledgement of his/her guilt of NOO. That is, you must accept that when NOA pleaded guilty to NOO, s/he was admitting his/her guilt of that offence. Secondly, you must accept that the plea was intended to be a true acknowledgment of his/her guilt. This requires you to accept that when NOA pleaded guilty, s/he meant to accept his/her responsibility for the crime of NOO, and that that admission was, in fact, true. [If a warning under Evidence Act 2008 s 165 is necessary, add the following shaded section:] In considering this evidence, I must warn you of the need for caution when considering evidence of NOA’s earlier guilty plea. Matters that may cause unreliability I must give you this warning[^3] because it is the experience of the law that evidence of admissions may be unreliable. This is because [identify all* of the risks of unreliability posed by the specific evidence in the case. Some possibilities include:* - It was not possible for you to assess NOA’s demeanour at the time s/he made the admission, which may make it harder to assess whether the admission was true and was intended to be true; - [Describe relevant inducement* or other relevant circumstance] may have caused NOA to make a false plea; - NOA may have been subject to pressures that caused him/her to make a false plea*, which you do not know about.]	[^2]: Name of Offence. [^3]: The judge should add any other matters that may cause the evidence to be unreliable, such as if the evidence comes from an accomplice. If the evidence is given by a prison informer, use 4.23.1 Charge: Confession to Prison Informer instead.	92	4 – Evidentiary Directions	4.5.2 Charge - Withdrawn Committal Plea.docx	204	https://www.judicialcollege.vic.edu.au/media/693/file
4.5.2-c1-s2	4.5.2 Charge: Withdrawn Committal Plea	Warning The law says that every jury must take this potential unreliability into account when considering evidence of an admission. You must take it into account in deciding whether NOA’s plea was a true acknowledgement of his/her guilt of NOO and whether it was intended to be a true acknowledgement of guilt. The prosecution invite you to use NOA’s earlier guilty plea as evidence of his/her guilt. [Describe relevant prosecution evidence and/or arguments.] The defence argued that you should not use the evidence in this way. They say [describe relevant defence evidence and/or arguments, e.g. "that NOA only pleaded guilty to bring an end to the matter" or "that NOA was not aware that s/he had a valid defence".] It is for you to determine, based on all of the relevant evidence, whether NOA’s guilty plea was, and was intended to be, a true acknowledgment of his/her guilt of NOO. Unless you accept that both of these matters have been proven, you must disregard the evidence of NOA’s alleged admission. Last updated: 9 March 2017	[^2]: Name of Offence. [^3]: The judge should add any other matters that may cause the evidence to be unreliable, such as if the evidence comes from an accomplice. If the evidence is given by a prison informer, use 4.23.1 Charge: Confession to Prison Informer instead.	92	4 – Evidentiary Directions	4.5.2 Charge - Withdrawn Committal Plea.docx	204	https://www.judicialcollege.vic.edu.au/media/693/file
4.6-c1-s1	4.6 Incriminating Conduct (Post Offence Lies and Conduct)	# 4.6 Incriminating Conduct (Post Offence Lies and Conduct) ## Introduction 1. Division 1 of Part 4 of the Jury Directions Act 2015 regulates the admission and use of evidence of ‘incriminating conduct’. The Part applies to “conduct” and “incriminating conduct” which are defined as: Conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged; Incriminating conduct means conduct that amounts to an implied admission by the accused- (a) of having committed an offence charged or an element of an offence charged; or (b) which negates a defence to an offence charged (Jury Directions Act 2015 s 18). 2. These provisions replace the common law principles that were developed in relation to ‘consciousness of guilt’ and ‘post offence conduct’ (see Jury Directions Act 2013 s 28 and Jury Directions Act 2015 s 24). 3. Incriminating conduct falls into two broad categories: lies, and other post-offence behaviour (including acts such as flight or omissions). Similar principles apply to both areas (Jury Directions Act 2015 s 18; R v Renzella [1997] 2 VR 88 (CA); R v Boros [2002] VSCA 181). 4. Evidence of incriminating conduct can be used in only two ways: 1. to attack the accused’s credit where he or she gives an account either in a record of interview or in evidence; and/or 1. as an implied admission of having committed an offence of an element of an offence or which negates a defence to an offence charged (Edwards v R (1993) 178 CLR 193; R v Akkus [2007] VSCA 287; R v GVV (2008) 20 VR 395). 5. There are a number of specific inferences that can be drawn from post-offence conduct. Depending on the conduct, the jury may be able to infer that, by committing the relevant conduct, the accused impliedly admitted that:		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c1-s2	4.6 Incriminating Conduct (Post Offence Lies and Conduct)	- s/he committed an offence charged or an alternative offence; - s/he had committed part of the actus reus of an offence; - s/he had a particular intention or mens rea when s/he engaged in particular conduct; or - s/he was not acting in a way consistent with possible legal defences or justifications (e.g. self-defence, duress or sudden extraordinary emergency) (R v Ciantar (2006) 16 VR 26; R v Jakimov [2007] VSCA 9; Jury Directions Act 2015 s 18). 6. The Jury Directions Act 2015 sets out the following three directions: - a section 21 direction, to be given whenever evidence is relied on as incriminating conduct; - a section 22 direction, which may be requested when evidence is relied on as incriminating conduct; and - a section 23 direction, which may be requested when there is a risk of the jury improperly using evidence as incriminating conduct. 7. These provisions substantially replicate the former Part 6 of the Jury Directions Act 2013. 8. Conduct which only provides support for other circumstantial evidence (such as post-offence conduct used to prove a sexual interest in the complainant, or as context evidence) is not an implied admission of a specific charge. The need for directions on such evidence will depend on how the evidence is relevant (see, e.g. PDI v R [2011] VSCA 446). 9. If evidence of conduct is only used to attack credit, the judge will generally not need to warn the jury about the use of that evidence unless defence counsel requests a direction to address the risk of the jury misusing the evidence as an implied admission (Jury Directions Act 2015 s 23). 10. Previously, incriminating conduct was sometimes called evidence of “consciousness of guilt”. This term is potentially misleading, and its use with juries is discouraged (Zoneff v R (2000) 200 CLR 234 (Kirby J); R v Nguyen (2001) 118 A Crim R 479; R v Franklin (2001) 3 VR 9; R v Chang (2003) 7 VR 236).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c2-s1	4.6 Admissibility of incriminating conduct – notice and leave requirements	## Admissibility of incriminating conduct – notice and leave requirements 1. The prosecution must not rely on evidence as incriminating conduct unless: - at least 28 days before the trial is listed the commence, the prosecution has served on the accused and filed in court: - a notice of intention to rely on evidence of incriminating conduct; and - a copy of the evidence the prosecution intends to rely upon; and - the trial judge finds that the evidence is reasonably capable of being used by the jury as evidence of incriminating conduct (Jury Directions Act 2015 ss 19, 20).[^2]	[^2]: The incriminating conduct notice requirement does not apply in summary hearings. While Jury Directions Act 2015 s 4A requires magistrate conducting a summary hearing to reason in a manner consistent with Jury Directions Act 2015 ss 21–23 (as the case may be), the Act does not require parties in non-trial hearings to comply with the notice requirements (DPP v Dyke (2020) 61 VR 207, [13]–[17]).	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c2-s2	4.6 Admissibility of incriminating conduct – notice and leave requirements	2. A judge may dispense with the need to give notice of an intention to rely on evidence of incriminating conduct if the prosecution first becomes aware of the relevant conduct during the trial, the prosecution gives oral notice of its intention to rely on that conduct as incriminating conduct and it is in the interests of justice to dispense with the requirements (Jury Directions Act 2015 s 20). 3. One situation in which the prosecution might only become aware of the alleged conduct during the trial is where the prosecution invites the jury to draw an inference about the content of the accused’s instructions to counsel on the basis of the content of cross-examination. While it can be permissible to invite the jury to draw such an inference, a submission that the accused invented those instructions because the truth would implicate the accused is an invitation to treat the instructions as incriminating conduct. Such a submission requires compliance with the Post-offence conduct provisions of the Jury Directions Act 2015 (Ritchie v The Queen [2019] VSCA 202, [109]). 4. When assessing whether the evidence is reasonably capable of being used as incriminating conduct, the judge must consider the case as a whole. It is not necessary to assess whether a piece of evidence, standing alone, is capable of being used as an implied admission (Jury Directions Act 2015 s 20). 5. The judge does not consider whether the jury will use the evidence as incriminating conduct – only whether the jury could do so. The judge operates as a gate-keeper to determine whether the jury will be permitted to use the evidence as incriminating conduct (DPP v Lynn [2024] VSCA 62, [114]–[115]). 6. The following sections describe the circumstances in which lies and other post-offence conduct may be capable of being used as incriminating conduct. 7. If an innocent explanation of the post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, the judge must not allow the prosecution to rely on the conduct as evidence of incriminating conduct (R v Ciantar (2006) 16 VR 26).	[^2]: The incriminating conduct notice requirement does not apply in summary hearings. While Jury Directions Act 2015 s 4A requires magistrate conducting a summary hearing to reason in a manner consistent with Jury Directions Act 2015 ss 21–23 (as the case may be), the Act does not require parties in non-trial hearings to comply with the notice requirements (DPP v Dyke (2020) 61 VR 207, [13]–[17]).	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c3-s1	4.6 Post-offence lies	## Post-offence lies		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c3-s2	4.6 Post-offence lies	1. One form of conduct which may be capable of constituting incriminating conduct is evidence that the accused told a lie (Edwards v R (1993) 178 CLR 193; R v Renzella [1997] 2 VR 88 (CA)). 2. Only post-offence lies which are told because the accused perceives that the truth is inconsistent with his or her innocence provide evidence probative of guilt (Edwards v R (1993) 178 CLR 193). 3. Where the accused tells the same lie on multiple occasions, the prosecution should consider how it proposes to treat those multiple lies. Where it relies only on one instance of the lie as incriminating conduct and other instances as going to credit, there is a risk that the jury will be unable to draw that distinction and will instead rely on all instances of the lie as incriminating conduct. In such cases, it may be necessary to refuse leave to rely on the lie as incriminating conduct (R v Robb [2015] VSC 481). 4. The probative value of a lie depends on its nature and the use sought to be made of it. It will rarely be strong enough to prove guilt directly. It will usually form part of the body of circumstantial evidence from which the jury is asked to infer the guilt of the accused (R v Nguyen (2001) 118 A Crim R 479; R v Ciantar (2006) 16 VR 26). 5. It is possible for a lie to be the only evidence of guilt – if the only reasonable inference to be drawn from the fact that the accused had lied was that s/he was confessing his/her guilt. However, this will be very rare (R v Zheng (1995) 83 A Crim R 572 (NSW CCA); Edwards v R (1993) 178 CLR 193).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c3-s3	4.6 Post-offence lies	6. Finding that the accused lied due to a belief in their own guilt is not the same as finding that s/he is guilty of the offence. It is merely one piece of evidence that can be used in the ultimate determination of guilt. The judge must tell the jury that even if they find that the accused believed that he or she committed the offence, the jury must still decide on the whole of the evidence whether the prosecution has proved the accused’s guilt beyond reasonable doubt (Jury Directions Act 2015 s 21; R v Camilleri (2001) 119 A Crim R 106; R v Franklin (2001) 3 VR 9). 7. In most cases lies are not used as an implied admission. Post-offence lies are generally used to discredit a witness, or simply in the context of providing contradictory evidence (Edwards v R (1993) 178 CLR 193; R v Renzella [1997] 2 VR 88 (CA)). 8. If lies are not used as an implied admission, it is a misdirection to tell the jury that they form part of the prosecution’s circumstantial case, or to prove the accused’s guilt (R v Renzella [1997] 2 VR 88 (CA); R v Benfield [1997] 2 VR 491 (CA); R v Russo (2004) 11 VR 1; R v Hartwick (2005) 14 VR 125).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c3-s4	4.6 Post-offence lies	## Relevant types of lies 9. At common law, untrue assertions and false denials were only capable of being used as an implied admission if the accused perceived that the truth was inconsistent with innocence. As a result, a lie could only be used as incriminating conduct if: - the lie was deliberate; - the lie related to a material issue; - the telling of the lie showed knowledge of the offence and was told because the truth would implicate the accused; - there was no other explanation for the telling of the lie consistent with innocence (R v Edwards (1993) 178 CLR 193; R v Renzella [1997] 2 VR 88).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c3-s5	4.6 Post-offence lies	10. At common law, the jury was required to consider these matters before using evidence as an implied admission. Under the Jury Directions Act 2015, it is likely that these matters will remain relevant to determining whether a judge should grant leave to allow the prosecution to rely on evidence as incriminating conduct (see Jury Directions Act 2015 s 20). 11. There must be independent evidence that a statement is a lie before it can be left to the jury as a possible implied admission. If the only way to establish a statement as a lie is by accepting the prosecution’s case (“bootstraps reasoning”), it cannot be used in this way (R v Laz [1998] 1 VR 453; R v Russo (2004) 11 VR 1; R v Sirillas [2006] VSCA 234). For example, in the case of lies about whether sexual activity was non-consensual, there must be separate evidence to establish the falsity of the statement than the complainant’s allegations (Kakule v The King [2025] SASCA 20, [50]). 12. In some cases, the inherent implausibility of the statement may be a basis for finding that it was a lie (see, eg, Kakule v The King [2025] SASCA 20, [54]-[55]; Law v The Queen [2020] WASCA 196, [94]-[96]). 13. A mere denial of guilt (which can only be shown to be a lie by proving the prosecution case) cannot be used as an implied admission (R v Gionfriddo and Faure (1989) 50 A Crim R 327 (Vic FC)). 14. An prosecution argument that an accused’s statement contained both admissions and false exculpatory statements, and that the jury should accept the admissions and reject the exculpatory statements as lies, does not involve consciousness of guilt reasoning (R v ZT [2025] HCA 9, [60]). 15. For a lie to be used as an implied admission, it must relate to a material issue (Edwards v R (1993) 178 CLR 193; R v Gionfriddo and Faure (1989) 50 A Crim R 327 (Vic FC)).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c3-s6	4.6 Post-offence lies	16. The logic of incriminating conduct evidence depends on the accused's knowledge that he or she committed the offences and that the truth would implicate the accused. The fact that the applicant was not provided with the detail of the complainant’s allegations before the accused made a statement said to contain a lie does not inform the question of the applicant’s belief (Di Giorgio v R [2016] VSCA 335, [28]). 17. If a lie is not inconsistent with the prosecution’s account of the alleged crime (i.e. even if the accused had told the truth, it would not have implicated him or her in the crime), it is unlikely to be material (see, e.g. R v Sutton (1986) 5 NSWLR 697). 18. A lie by an accused about why s/he failed to mention a fact can be used as an implied admission (R v Russo (2004) 11 VR 1). 19. It may be inappropriate to leave lies to the jury as evidence of guilt if the accused disavowed the lies within a short period of time (R v Lee (2005) 12 VR 249). 20. Pre-offence lies cannot be used as an implied admission. They can, however, be used as an implied admission of an intention to commit an offence, or that one is actually in the course of committing an offence (R v Appleby (1996) 88 A Crim R 456; R v Kotzmann [1999] 2 VR 123).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c4-s1	4.6 Other post-offence behaviour	## Other post-offence behaviour 1. Although lies have generally been given special treatment in the case law, they are just one instance of potentially incriminating conduct. Evidence of other post-offence behaviour, such as fleeing from the police or concealing evidence, is equally capable of being regarded as an implied admission (R v Gionfriddo and Faure (1989) 50 A Crim R 327 (Vic FC); R v Boros [2002] VSCA 181; R v McCullagh (No 2) [2005] VSCA 109). 2. Some examples of other post-offence behaviour which have been used as evidence probative of guilt include: - fleeing (R v McKenna (1956) 73 WN (NSW) 345 (CCA); R v Gay [1976] VR 577 (FC); R v Porter (2003) 85 SASR 581). - concealing evidence (R v Rice [1996] 2 VR 406; R v Chang (2003) 7 VR 236). - suborning witnesses (R v Liddy (2002) 81 SASR 22). - remaining silent when speech could have been expected (R v Salahattin [1983] 1 VR 521 (FC);* R v Gallagher* [1998] 2 VR 671. See also R v MMJ [2006] VSCA 226 (Warren CJ)). - modifying behaviour patterns (R v Gallagher [1998] 2 VR 671). - laying a false trail (R v Chang (2003) 7 VR 236; R v Loader (2004) 89 SASR 204). - failing to call emergency services in response to a fire (Hussain v The King [2024] VSCA 288, [113]-[116]).	[^3]: As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s 89.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c4-s2	4.6 Other post-offence behaviour	3. Where a person is alleged to have committed an offence as part of a group, conduct such as concealing evidence may be directly relevant to the accused’s participation in the group, without any obligation to use the evidence as an implied admission. The prosecution, the defence and the judge will need to consider whether the evidence is relevant as circumstantial evidence or as an implied admission and, if the prosecution does not seek to use the evidence as an implied admission, whether a direction is necessary under s 23 about the risk of misuse (Lowe v R (2015) 48 VR 351, [176]–[181]). 4. As with lies, there is a distinction between cases where post-offence conduct such as flight has no probative value, and those where it is used as an implied admission (R v Chang (2003) 7 VR 236; Dwyer v The King [2023] VSCA 85). 5. Flight will not be probative where there is an equally plausible, innocent, explanation for the conduct. For example, in Dwyer v The King [2023] VSCA 85, the accused left the vicinity of the alleged offending after becoming aware that several people were angry with him and were looking for him. In that situation, the Court held that a rational jury could not determine that the accused fled due to his recent offending, rather than due to fear of the gathering mob, and therefore could not use the evidence of flight either as incriminating conduct, or as evidence that reflected on the credibility of the accused (Dwyer v The King [2023] VSCA 85, [96]–[97]). For this purpose, an ‘innocent explanation’ is one where the accused is not guilty of the offence charged. For example, an ‘innocent explanation’ for fleeing from the police in relation to one armed robbery could be that the accused was wanted for a different armed robbery (see, e.g. R v Hartwick, Unreported, Supreme Court of Victoria Court of Appeal, 20 December 1995).	[^3]: As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s 89.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c4-s3	4.6 Other post-offence behaviour	6. The principles that apply to the treatment of other forms of post-offence behaviour are generally the same as those that apply to lies (R v Renzella [1997] 2 VR 88 (CA); R v Nguyen (2001) 118 A Crim R 479; R v McCullagh (No 2) [2005] VSCA 109). 7. At common law, the principles of consciousness of guilt were not limited by a strict temporal separation between conduct before or during the offence and conduct after the offence. Conduct that revealed an awareness of current or future wrongdoing could require the same directions as post-offence conduct, or modified post-offence conduct directions. For example, a destruction of evidence or the means of detection (such as listening devices or CCTV cameras), or laying a false trail, could be used as an implied admission even if it predated the completion of the offence (La Rocca v The Queen [2021] NSWCCA 116, [116]–[117]; R v Appleby (1996) 88 A Crim R 456, 459, 485–487). 8. The definition of ‘conduct’ in Jury Directions Act 2015 s 18 specifically refers to conduct which “occurs after the event or events alleged to constitute the offence charged”. It is likely that the abolition of the common law through Jury Directions Act 2013 s 28 is limited to post-offence conduct, and so directions about implied admissions arising from pre-offence conduct remain governed by the common law (see also the Notes to Jury Directions Act 2015 s 24).	[^3]: As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s 89.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c4-s4	4.6 Other post-offence behaviour	## Pretext conversation and incriminating conduct	[^3]: As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s 89.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c4-s5	4.6 Other post-offence behaviour	9. The “pretext conversation” has become a common technique for the investigation of certain offences, especially sexual offences. A “pretext conversation” occurs where the complainant confronts the accused with an allegation of the offending. The conversation is recorded by police, and the recording may be played in the trial. 10. Where a pretext conversation produce evidence that meets the definition of incriminating conduct, the prosecution must give notice under Jury Directions Act 2015 s 19 if it wishes to rely on the evidence for that purpose. 11. Whether a pretext call meets the definition of incriminating conduct (“an implied admission by the accused of having committed an offence charged or an element of an offence charged…”) will often depend on the degree of specificity in the conversation. The evidence will most likely meet the definition where the accused demonstrates an awareness of the offences alleged, fails to deny the offending or makes a generalised admission in respect of multiple allegations (see, e.g. WA v McBride [2015] WASC 275; R v LAF [2015] QCA 130; R v MBV [2013] QCA 17; Christian v R [2012] NSWCCA 34). 12. In contrast, where the call involves a specific allegation and a specific admission, it is more likely that statements in the pretext call will be treated as express admissions, rather than implied admissions (see, e.g. R v Cavalli [2010] QCA 343). 13. Further, in some cases, the statements made in a pretext conversation will be non-specific and a jury cannot link those statements to any particular alleged offence. In those circumstances, the conversation may instead be relevant to support other circumstantial evidence, such as to prove a sexual interest in an individual complainant, or as context evidence. In those circumstances, the evidence will not be “incriminating conduct”, as defined in the Jury Directions Act 2015 (see, e.g. PDI v R [2011] VSCA 446; JWM v R [2014] NSWCCA 248; R v GVV (2008) 20 VR 395).	[^3]: As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s 89.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c4-s6	4.6 Other post-offence behaviour	14. The fact that the accused went to see a solicitor after a pretext conversation cannot be used as a piece of incriminating conduct, as that would involve impermissible speculation (Meyer v R [2018] VSCA 140, [211]–[212]). 15. In determining the status of statements made during pretext calls, the principles of silence in response to equal parties and inferring guilt from demeanour (discussed below) will often be relevant.	[^3]: As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s 89.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c4-s7	4.6 Other post-offence behaviour	## Silence as incriminating conduct 16. When considering whether the accused’s silence in response to questioning can be used as an implied admission, a distinction is drawn between silence in response to people in authority and silence in response to equal parties. 17. In addition to the principles discussed below, there may be cases where, in the ordinary course of human affairs, it would be reasonable to expect that a person would inform others about an exceptional event. In such circumstances, a failure to inform others may be treated as an incriminating conduct, even if the person is not asked about the event. For example, in Xypolitos v R (2014) 44 VR 423 the accused killed his stepson, destroyed the body and failed to inform his partner or the police. This was treated as incriminating conduct in relation to whether he killed his stepson in self-defence. Similarly, in Hussain v The King [2024] VSCA 288, the accused was charged with arson of his own business premises. The Court of Appeal held that an argument the accused refrained from contacting emergency services because he had lit the fire was an incriminating conduct argument. ### Silence in response to people in authority	[^3]: As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s 89.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c4-s8	4.6 Other post-offence behaviour	18. The jury may not use the accused’s silence in response to a person in authority as an implied admission (Evidence Act 2008 s 89; R v Cuenco (2007) 16 VR 118; R v Barrett (2007) 16 VR 240; R v Russo (2004) 11 VR 1; R v Bruce [1998] VR 579; Petty v R (1991) 173 CLR 95). 19. It is therefore not open to a jury to infer that the accused had implicitly admitted his/her guilt from the fact that s/he selectively exercised his/her right to answer questions (R v Barrett (2007) 16 VR 240; R v Russo (2004) 11 VR 1). 20. However, where the accused gives a detailed account of events to the police, the jury may be able to infer from the conscious omission of certain details that the accused had implicitly admitted his/her guilt (R v Cuenco (2007) 16 VR 118; R v Russo (2004) 11 VR 1; De Marco 26/6/1997 CA Vic; Johnstone v R (2011) 31 VR 320).[^3] 21. Whether omissions of this nature can be used as incriminating conduct will depend on the other evidence in the case (R v Cuenco (2007) 16 VR 118; R v De Marco 26/6/1997 CA Vic CA; Johnstone v R (2011) 31 VR 320). 22. If evidence of an implied admission comes from a record of interview in which the accused has selectively answered questions, the judge should clearly direct the jury that while they may have regard to the answers given by the accused which have been identified as supporting the inference, they may not draw an inference from his or her “no comment” responses (see, e.g. R v Barrett (2007) 16 VR 240). 23. See 4.15 Silence in Response to People in Authority for further information. ### Silence in response to equal parties	[^3]: As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s 89.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c4-s9	4.6 Other post-offence behaviour	24. There may be circumstances in which the jury can infer from the accused’s silence in response to a statement made by an equal party that s/he had implicitly admitted his/her guilt (Woon v R (1964) 109 CLR 529; R v Thomas [1970] VR 674; R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501). 25. The focus here is upon whether the accused’s silence, although not amounting to an admission by him or her of the specific facts stated in his or her presence, nevertheless demonstrated his or her guilt in some way (R v MMJ (2006) 166 A Crim R 501). 26. To infer that by remaining silent, the accused had implicitly admitted his/her guilt, the jury must find that: - the circumstances were such that, in ordinary experience, the accused would have been expected to respond to the statement made in his or her presence; and - the only reasonable explanation for the accused’s silence is that the accused knew that he or she had committed the wrongful conduct which constituted the offence charged, and feared that a response would implicate him/her (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501). 27. See 4.16 Silence in Response to Equal Parties for further information concerning the requirement that the statement called for a response, as well as a discussion of possible reasons for a person remaining silent in response to a statement made by an equal party. ## Inferring Guilt from Demeanour 28. Although evidence of the accused’s demeanour or reactions to a certain event is theoretically capable of constituting an implied admission, it will be rare for a judge to leave such evidence before the jury on this basis. This type of evidence is very imprecise and unreliable, and subject to misinterpretation. It will also generally be equivocal and incapable of supporting an inference that the accused had implicitly admitted their guilt (R v Favata [2006] VSCA 44; R v Barrett (2007) 16 VR 240). 29. If the accused’s demeanour is relied upon as evidence of an implied admission, additional directions about the dangers of drawing such an inference from demeanour may be necessary, including warning the jury:	[^3]: As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s 89.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c4-s10	4.6 Other post-offence behaviour	- to be cautious about placing undue weight on the demeanour of the accused as an indicator that s/he believed him or herself to be guilty of any offence; - to have regard to the possibility that, when interviewed, other factors (such as drugs or tiredness) may have affected the accused’s demeanour; - not to speculate about what would be the “normal” reactions of a person subjected to the pressures of such an interview, whether the allegations be true or false; and - that a conclusion based on a person’s demeanour in such circumstances might be very unfair, and could amount to a reversal of the onus of proof (R v Barrett (2007) 16 VR 240).	[^3]: As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s 89.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c5-s1	4.6 Need for warnings	## Need for warnings 1. There are three different types of directions that may be given in relation to post-offence conduct: 1. a section 21 direction, telling the jury the conditions that must be satisfied before post-offence conduct can be treated as an implied admission; 1. a section 22 direction, warning the jury about the dangers of using evidence as incriminating conduct; 2. a section 23 direction, warning the jury to avoid improper use of post-offence conduct evidence which cannot be used as an implied admission (Jury Directions Act 2015 ss 21–23).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s1	4.6 When to give a section 21 direction and content of the direction	## When to give a section 21 direction and content of the direction 1. A section 21 direction must be given if the prosecution relies on evidence as “incriminating conduct” (Jury Directions Act 2015 s 21). 2. This direction is not subject to a request process. The judge must give the direction in any case where the prosecution relies on evidence as incriminating conduct (Jury Directions Act 2015 s 21). 3. As described above, the prosecution may only rely on evidence as “incriminating conduct” if it has given notice at least 28 days before the trial and the judge ruled that the evidence is reasonably capable of being used as “incriminating conduct” (Jury Directions Act 2015 s 20). 4. The prosecution must precisely identify the alleged lie(s) or conduct in the notice, and that the prosecution arguments conform to the bounds set out in the notice (Maeda v DPP (Cth) [2015] VSCA 367, [78]). 5. Where there is a gap or deficiency in the notice, the prosecution may seek leave to extend time for filing a notice under Jury Directions Act 2015 s 8, and seek to file over a new incriminating conduct notice under section 19. 6. If the evidence is not capable of being used as an implied admission, but there is a real risk that the jury might treat the evidence in that way, defence counsel may seek a section 23 warning (see below). ## If the prosecution does not seek to use evidence as ‘incriminating conduct’		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s2	4.6 When to give a section 21 direction and content of the direction	7. Section 21 of the Jury Directions Act 2015 is only engaged when the prosecution explicitly or expressly relies on the evidence as an implied admission. There is no scope for a judge to find that the prosecution has relied on evidence as incriminating conduct implicitly, despite the absence of a Notice (Lowe v R (2015) 48 VR 351). 8. The judge must determine, at the time it is necessary to give directions, whether the prosecution has relied on evidence as incriminating conduct giving rise to implied admissions (Lowe v R (2015) 48 VR 351, [144]). 9. In making this assessment, the court must consider how the case has been run as a whole. Oversight by prosecuting counsel, leading to the prosecution not mentioning incriminating conduct in the closing address, does not prevent the judge from giving an incriminating conduct direction which has been identified and discussed with the parties (see Mercer v The Queen [2021] VSCA 132, [42]–[44]). 10. If the prosecution does not contend that post-offence conduct is evidence of an implied admission, a section 21 direction must not be given (Lowe v R (2015) 48 VR 351, [142]). 11. In determining whether the prosecution has relied on evidence as ‘incriminating conduct’ it is not important whether the term “consciousness of guilt” or “incriminating conduct” has been used by counsel in the trial. What is important is whether the process of reasoning towards guilt which the jury has been invited to adopt involves the use of post-offence lies or conduct as implied admissions (see R v Lees [2006] VSCA 115; Rossi v R [2012] VSCA 228; Lowe v R (2015) 48 VR 351; Pompei v The King [2023] VSCA 71, [40]–[42]).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s3	4.6 When to give a section 21 direction and content of the direction	12. At common law, in some cases the judge was required to direct the jury on the use of evidence as an implied admission even if the prosecution did not rely on it for this purpose (R v Russo (2004) 11 VR 1). The Jury Directions Act 2015 has abolished this obligation (Jury Directions Act 2015 s 24). There is no residual discretion to give a section 21 direction where the evidence has not been led as incriminating conduct. 13. If the judge is concerned about the risk of the jury using evidence as evidence of incriminating conduct even though the prosecution has not relied on the evidence for that purpose, a section 23 direction may be necessary (see R v Cuenco (2007) 16 VR 118; Zoneff v R (2000) 200 CLR 234; Dhanhoa v R (2003) 217 CLR 1). 14. In some cases, the judge may need to intervene where the prosecution invites the jury to use evidence in a way that amounts to treating the evidence as incriminating conduct, even though it has not obtained leave to rely on evidence for that purpose (see R v Lees [2006] VSCA 115; R v Chang (2003) 7 VR 236). A judge may also need to consider giving a section 23 direction to neutralise the prosecution’s argument or otherwise discharge the jury.		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s4	4.6 When to give a section 21 direction and content of the direction	## Content of a section 21 direction		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s5	4.6 When to give a section 21 direction and content of the direction	15. There are two limbs to a section 21 direction. Under the first limb, the judge must tell the jury that they can use the evidence to find that the accused believed that he or she: 1. committed the offence charged; 1. committed an element of the offence charged; or 2. negated a defence to the offence charged; 1. only if they find that: 1. the conduct occurred; and 2. the only reasonable explanation of the conduct is that the accused held that belief (Jury Directions Act 2015 s 21(1)(a)). 16. When deciding whether the conduct occurred and whether the only reasonable explanation is that the accused believed that s/he committed the offence charged or part of the offence charged, the jury must consider all of the evidence in the case (R v Ciantar (2006) 16 VR 26). 17. The second limb of the direction warns the jury that even if they find that the accused believed that he or she 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 (Jury Directions Act 2015 s 21). 18. The second limb of the direction recognises that the accused may hold a mistaken belief in his or her own guilt, and that the role of the jury is to determine the accused’s guilt, and not merely the accused’s belief in his or her guilt. 19. It is not necessary to use any particular form of words when giving the two limbs of the section 21 direction (Jury Directions Act 2015 s 6). 20. However, in Maeda v DPP (Cth), the Court of Appeal noted the need for care when departing from the statutory language, due to the risk that any factual questions posed may not satisfy the requirements of section 21 (Maeda v DPP (Cth) [2015] VSCA 367, [85]). 21. The importance of the directions means it is generally unwise to deliver incriminating conduct directions extemporaneously. Judges should, instead, prepare written directions to ensure they comply with the requirements of the Jury Directions Act and the law generally (Healy v The King [2024] VSCA 81, [46]).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s6	4.6 When to give a section 21 direction and content of the direction	22. For example, in Saddik v The Queen, the judge had directed the jury, for the purpose of s 21(1)(a)(ii) that they must be satisfied that the only reasonable explanation for the conduct was that the accused thought it would tend to show that nothing improper had happened. The Court of Appeal held that this did not comply with s 21(1)(a)(ii). The judge should have told the jury to decide whether the accused believed he had indecently assaulted the complainant and performed the conduct to create an innocent explanation for his offending acts (Saddik v The Queen [2018] VSCA 249, [154]). 23. In addition, it is not appropriate for the judge to direct the jury that they can use the evidence in proof that the accused admitted guilt of some other offence. The direction must relate the evidence to an offence charged, the particular acts alleged and the way the prosecution seeks to use the evidence (Di Giorgio v R [2016] VSCA 335, [38], [40], [56]). 24. Section 21 removes the common law obligation to refer to each act or omission as part of the direction (Jury Directions Act 2015 s 21; c.f. Edwards v R (1993) 178 CLR 193; R v McCullagh (No 2) [2005] VSCA 109; R v Ciantar (2006) 16 VR 26). However, it remains necessary for the prosecution to precisely identify the alleged lie(s) or conduct in the notice, and that the prosecution arguments conform to the bounds set out in the notice (Maeda v DPP (Cth) [2015] VSCA 367, [78]). 25. If the post-offence conduct includes both lies and other post-offence behaviour, the judge should make the jury aware that the direction applies to both (see R v Nguyen (2001) 118 A Crim R 479).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s7	4.6 When to give a section 21 direction and content of the direction	26. If the post-offence conduct could be used as an implied admission in relation to a number of different counts, the judge should relate each item of conduct to the appropriate charge or charges, and the jury should be told to examine the evidence in support of each charge separately (R v Kalajdic [2005] VSCA 160; R v Finnan [2005] VSCA 151; R v Ciantar (2006) 16 VR 26). 27. If a lie is to be used as corroboration, confirmation or support of another witness’s evidence, the jury must also be told that the accused’s statement must clearly be shown to be a lie by evidence other than that of the witness who is to be corroborated – i.e. by admission or by evidence from an independent witness (Edwards v R (1993) 178 CLR 193). 28. Where the defence case involves a simple denial of all the conduct alleged, it may not be necessary to explain to the jury how the incriminating conduct evidence relates to any particular element or a particular charge (Davis v R [2016] VSCA 272, [119]).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s8	4.6 When to give a section 21 direction and content of the direction	### Other explanations for conduct		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s9	4.6 When to give a section 21 direction and content of the direction	29. In some cases, an issue may arise as to whether the accused committed the post-offence conduct due to a fear of being implicated in the offence for which the prosecution wishes to use the evidence of that conduct, or because s/he feared being implicated in a lesser included offence, a different offence on a multiple count presentment, or another offence disclosed by the evidence (“other offences”), or due to some innocent explanation. 30. Under the Jury Directions Act 2015, the definition of “incriminating conduct” refers to conduct that amounts to an implied admission of an “offence charged”, an element of an “offence charged” or which negates a defence to an “offence charged”. The term “offence charged” is defined as including alternative offences (Jury Directions Act 2015 s 18). 31. The judge must determine whether it is open for the jury to use an item of post-offence conduct to prove an element of a principal offence or any available alternative offence. Courts have expressed this requirement in different ways, including asking whether the evidence, considered in conjunction with other evidence is capable of being used as incriminating conduct (see R v Ciantar (2006) 16 VR 26, [84]) or whether the jury could rationally conclude that the only reasonable inference is guilt of the offence charged (DPP v Zhuang [2014] VSC 276, [22]) or whether it would be reasonably open to the jury to conclude the conduct could only be explained by the accused believing they were guilty (DPP v Scriven [2015] VSC 220, [23]). 32. When deciding whether the evidence is admissible as incriminating conduct, the judge does not decide whether the only reasonable explanation is that the accused believed they committed the offence charged. Instead, the question is whether another explanation is one which the jury could accept or reject as reasonably possible. If the jury could accept or reject the other explanation, then the evidence is admissible as incriminating conduct and the jury decides whether to use it in that fashion, using its collective experience, wisdom and common sense (DPP v Lynn [2024] VSCA 24, [121]).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s10	4.6 When to give a section 21 direction and content of the direction	33. At common law, evidence which was equally consistent with two or more available offences, or was otherwise “intractably neutral”, could not be used as post-offence conduct. This requirement continues to apply under the Jury Directions Act 2015 (see R v Ciantar (2006) 16 VR 26; R v Jakimov [2007] VSCA 9; R v Cuenco (2007) 16 VR 118; R v Dickinson [2007] VSCA 111; Pollard v R (2011) 31 VR 416; Dwyer v The King [2023] VSCA 85, [96]; DPP v Lynn [2024] VSCA 24, [93]; Cookson v The King [2024] VSCA 289, [152]). 34. Such cases will, however, be rare. The judge may only exclude evidence on this basis if the conduct is equally consistent with both explanations and there is no other evidence that bears on the issue (DPP v Lynn [2024] VSCA 62, [127]. See also R v Ciantar (2006) 16 VR 26; Cookson v The King [2024] VSCA 289, [153]). 35. Further, where the accused is charged with having committed several offences within a single episode, evidence may be admissible as incriminating conduct without needing to show that it can be used as an implied admission of one offence in the episode rather than another. Instead, it may be sufficient if it is open to the jury to use the evidence as an implied admission that the accused was the person who committed the offences within that episode (Bangoura v The King [2024] VSCA 294, [354]). 36. In most cases, the jury decides whether the prosecution has excluded the possibility that the accused acted with a consciousness of guilt of the alternative offence, rather than the charged offence, and the judge does not decide whether the jury should reach that conclusion (DPP v Lynn [2024] VSCA 62, [127], [140]).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s11	4.6 When to give a section 21 direction and content of the direction	37. In determining whether the post-offence conduct is equally consistent with two or more possible offences, or otherwise intractably neutral, the judge must consider the conduct in the context of the evidence as a whole (R v Jakimov [2007] VSCA 9; R v Cuenco (2007) 16 VR 118; R v Dickinson [2007] VSCA 111; Pollard v R (2011) 31 VR 416). 38. Despite this, it may be permissible to group particular items of post-offence conduct together and assess whether that conduct is intractably neutral. This may be appropriate where there are significant differences between certain types of conduct (see DPP v Lynn [2024] VSCA 62, [134]–[151]; DPP v Pandilovski (Ruling No 1) [2022] VSC 552, [3]–[4]). 39. One factor the court will consider to decide if the evidence is equally consistent with two or more offences is whether the conduct is ‘out of proportion’ for the lesser offence (see DPP v Ristevski (Ruling No 1) [2019] VSC 165, [16]; DPP v Pandilovski (Ruling No 1) [2022] VSC 552, [12], [13], [29]; DPP v Lynn [2024] VSCA 62, [133]). 40. It will often be helpful to explain to the jury that reference to “the offence charged” is a convenient way of saying that the accused made an implied admission of the alleged wrongful conduct which constituted the offence charged, rather than an admission of a specific crime as it is known to the law (R v Ciantar (2006) 16 VR 26).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s12	4.6 When to give a section 21 direction and content of the direction	### Other explanations for the post-offence conduct 41. Unlike at common law, a judge is not required to identify other reasons for having committed the conduct (compare Edwards v R (1993) 178 CLR 193; R v Ciantar (2006) 16 VR 26). 42. The judge is also not required to identify possible motivations, other than a consciousness of guilt, for committing the post-offence conduct (compare R v Nguyen [2005] VSCA 120). 43. Other explanations may form part of a section 22 direction (see below). ## Identifying the post-offence conduct 44. In charging the jury, the judge should take each offence left to the jury in turn, and by reference to that offence identify: - the evidence of conduct upon which the prosecution relies; - the issues which the post-offence conduct is relevant to prove. That is, whether the post-offence conduct proves part of the actus reus or the mens rea or disproves a possible defence or justification; and - the evidence which shows that the conduct is incriminating conduct (R v Ciantar (2006) 16 VR 26. See also R v Jakimov [2007] VSCA 9; R v Nguyen [2005] VSCA 120; R v McCullagh (No 2) [2005] VSCA 109; Osland v R (1998) 197 CLR 316; Johnstone v R (2011) 31 VR 320).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c6-s13	4.6 When to give a section 21 direction and content of the direction	45. When directing the jury about incriminating conduct, it is not necessary to refer to each act or omission (Jury Directions Act 2015 s 21(2). Instead, the conduct may be described in general terms (c.f. R v Dang [2004] VSCA 38; R v Nguyen [2005] VSCA 120; Johnstone v R (2011) 31 VR 320. But see Ellis v R (2010) 30 VR 428). 46. A judge should not invite the jury to look for other post-offence conduct that could possibly be used as an implied admission (R v TY (2006) 12 VR 557; R v Cuenco (2007) 16 VR 118). 47. The judge must clearly identify for the jury which evidence of post-offence conduct can be used as an implied admission, and which can only be used in relation to the accused’s credibility (R v Ray (2003) 57 NSWLR 616). 48. If there are multiple charges, the trial judge must relate the relevant lies or other acts to the appropriate count or counts (R v Kalajdic [2005] VSCA 160; R v Redmond [2006] VSCA 75; R v Ciantar (2006) 16 VR 26). 49. In such cases, the jury must be directed to consider the post-offence conduct in relation to each charge separately (R v Woolley (1989) 42 A Crim R 418 (Vic FC); R v Ciantar (2006) 16 VR 26).		93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file
4.6-c7-s1	4.6 When to give a section 22 direction and content of the direction	## When to give a section 22 direction and content of the direction 1. Where the judge gives or proposes to give a section 21 direction, the defence may seek a direction under Jury Directions Act 2015 s 22 (a ‘section 22 direction’). 2. A section 22 direction tells the jury: - that there are many reasons why a person might behave in a way that makes him or her look guilty; - that the accused might have engaged in incriminating conduct even though he or she is not guilty of the offence charged; - even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty (Jury Directions Act 2015 s 22)	[^4]: I.e. Trials involving a one count indictment with lesser included offences; trials involving multiple count indictment; or cases where the evidence adduced to prove a particular charge discloses the possible commission of other offences.	93	4 – Evidentiary Directions	4.6 Incriminating Conduct (Post Offence Lies and Conduct)_0.docx	205	https://www.judicialcollege.vic.edu.au/media/695/file

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