30. Post-Offence Incriminating Conduct (Vic)¶
Scope and currency
Cheat sheet · Jury Directions Act 2015 (Vic) Part 4, Division 1 (ss 18–24) + ss 8, 12, 14, 16, 26, 27, 29 · Evidence Act 2008 (Vic) s 137
Post-offence conduct is highly seductive to a jury — so the Act front-loads the controls. Evidence of post-offence conduct is recognised as evidence a jury may easily accord an "unjustified sinister significance", leading to invalid and unfair reasoning. Part 4, Division 1 of the Jury Directions Act 2015 (Vic) therefore imposes a strict statutory regime on its admission and evaluation. Run it in order: is it s 18 conduct → what is it being used for (implied admission or credit only) → was s 19 notice given → is it reasonably capable (s 20) → the s 21 mandatory direction → the ss 22/23 request directions. Two of those steps are procedural, and failing either has quashed convictions (Baker (a pseudonym) v The King VSCA 139; Portea v The King VSCA 255).
The scheme at a glance¶
| s | Provision | Effect |
|---|---|---|
| 18 | Definitions | "Incriminating conduct" = conduct amounting to an implied admission by the accused of having committed an offence charged or an element of an offence charged, or which negates a defence to an offence charged. "Offence charged" includes any alternative offence. |
| 19 | Notice | Prosecution must serve on the accused and file in court, at least 28 days before the trial is listed to commence, written notice of intention to rely on evidence of incriminating conduct, with a copy of the evidence. |
| 19(3)–(4) | Dispensing with notice | The trial judge may dispense during a trial only if the prosecution first became aware of the conduct during the trial, gives oral notice to the court and the accused, and it is in the interests of justice. If leave is granted, the prosecution must orally identify the specific conduct on the record (s 19(4)). |
| 20 | Judicial gatekeeping | The prosecution is prohibited from relying on the conduct as incriminating conduct unless the trial judge determines, on the basis of the evidence as a whole, that it is reasonably capable of being viewed by the jury as evidence of incriminating conduct. This applies even if the evidence is admissible for another purpose in the trial (s 20(2)). |
| 21 | Mandatory direction | Where the prosecution relies on the conduct as incriminating conduct, the judge must give the two-limb direction — see Gate 5. Under s 21(2) the judge is not required to refer to each act or omission and may describe the conduct in general terms. |
| 22 | Request direction | On a s 12 request, the judge must warn the jury about the innocent explanations for guilty-looking behaviour, unless there are good reasons not to under s 14. |
| 23 | Request direction | Direction to avoid the risk of improper use of the evidence. Given only on request, unless there are substantial and compelling reasons under s 16. |
| 24 | Prohibited directions | The judge is prohibited from giving any direction regarding incriminating conduct except as provided by Division 1 of Part 4. Note 1 confirms the Edwards and Zoneff common law direction rules are wholly abolished. |
The decision sequence¶
GATE 1 Is it 'incriminating conduct' within s 18?
Does the conduct amount to an implied admission? The definition is purposive, not descriptive: the question is whether the conduct amounts to an implied admission of the offence charged, of an element of it, or negates a defence. Because "offence charged" includes any alternative offence, conduct may be incriminating as to manslaughter but not murder — see Ristevski at Gate 4. → Caught — the recognised forms: post-offence lies (must be a deliberate and proven lie of a material nature, not a mere denial of guilt); flight from the scene or from police (R v McKenna (1956); R v Gay VR 577); threatening witness testimony or inducing perjury (R v Liddy (2002)); remaining silent / admissions by silence where speech could have been expected, or a conscious omission of details amounting to an implied admission (R v Salahattin 1 VR 521; R v Gallagher 2 VR 671); failing to call emergency services where an urgent response is expected (Hussain v The King VSCA 288); and pretext conversations — police-recorded confrontations where the accused fails to deny offending, demonstrates specific awareness, or makes generalised admissions (WA v McBride WASC 275; R v LAF QCA 130). → Not caught: a person who merely exhibits stress or anxiety is not engaging in incriminating conduct. Demeanour is not conduct. → The sleeper — silence in a pretext call: admissions by silence during police-recorded pretext conversations are "conduct" and "incriminating conduct" under s 18, which means the prosecution must give s 19 notice and the judge must give s 21 directions (Stern v The King VSCA 57). This is routinely missed because the Crown treats the pretext call as ordinary admissions evidence.
GATE 2 What is it being used for? — the dual-use split
Implied admission, or credit only? The Act strictly separates the two legitimate uses, and the direction consequences are opposite. Pin the purpose before anything else. → Credibility / credit only: used to attack the accused's credibility where they have given an inconsistent account in a record of interview or in evidence. Where the conduct goes only to credit, a s 21 direction must NOT be given (Lowe v R (2015) 48 VR 351). The judge is generally not required to warn the jury about the use of that evidence — unless defence counsel requests a s 23 direction to address the forensic risk of the jury misusing it as an implied admission. → Incriminating conduct (implied admission): engages the full machinery — s 19 notice, s 20 gatekeeping, and the mandatory s 21 direction. → Watch the drift: the Crown may open on credit and drift into consciousness-of-guilt reasoning in closing. That drift is itself "reliance" on incriminating conduct and triggers the whole regime — see Baker at Gate 3.
GATE 3 Was s 19 notice given?
Written notice, filed and served, 28 days before trial — with the evidence? This is a procedural gate with teeth. The prosecution must serve on the accused and file in court, at least 28 days before the trial is listed to commence, a written notice of intention to rely on evidence of incriminating conduct together with a copy of the evidence. The prosecution must precisely identify the alleged conduct. → No notice, and no s 20 leave: the trial miscarries. In Baker (a pseudonym) v The King VSCA 139 the prosecutor's final address remarks — that the accused had exchanged phones with the complainant — constituted "reliance" on incriminating conduct; because the prosecution had given no s 19 notice and obtained no leave under s 20, the trial miscarried and a retrial was ordered. → Non-compliance generally: admitting disputed post-offence conduct without complying with the Part 4 procedural requirements — notice and the capability assessment — is a material error, resulting in the quashing of convictions and an order for a retrial (Portea v The King VSCA 255). → Late notice during trial (s 19(3)): the judge may dispense only if the prosecution first became aware of the conduct during the trial, gives oral notice to the court and the accused, and dispensation is in the interests of justice. If leave is granted, the prosecution must then orally identify the specific conduct on the record (s 19(4)). → Amending a notice already served: there is no express provision in the Act permitting a court to allow the prosecution to amend a notice of incriminating conduct once served — though s 8 remains available to abridge or extend time (R v Birchall VSC 172, Lasry J).
GATE 4 Is it 'reasonably capable'? — s 20 gatekeeping
On the evidence as a whole, could a jury properly view this as incriminating conduct? The judge must determine, on the basis of the evidence as a whole, that the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct. The assessment is made even if the evidence is admissible for another purpose in the trial (s 20(2)). This is the defence's best strike and it happens before any direction is drafted. → Innocent explanation inherently likely, or conduct "intractably neutral": the judge must refuse to leave the conduct to the jury. Lies or conduct must be considered in the context of the evidence as a whole (R v Ciantar (2006) 16 VR 26). → Capable of one offence but not another — the key application: in DPP v Ristevski (Ruling No 1) VSC 165 Beale J held that the accused's extreme post-offence conduct — disposal of his wife's body in bushland and lies to police and family — was admissible to prove that he killed his wife, but was not capable of proving murderous intent. Because a panicked cover-up was equally consistent with manslaughter, the conduct was "intractably neutral" as to intent, and a jury could not rationally find that the only reasonable explanation was consciousness of guilt of murder. → Multiple charges: where there are multiple charges, the jury must be directed to examine the post-offence conduct in relation to each charge separately (Ciantar).
GATE 5 The mandatory s 21 direction
Two cumulative limbs, then the guilt question stays open. If the prosecution relies on the conduct as incriminating conduct, the trial judge must direct the jury that they may treat the evidence as an implied admission — that is, that the accused believed they had committed the offence, an element of the offence, or had negated a defence — only if it concludes that: → Limb 1: the accused actually engaged in the conduct; and → Limb 2: the only reasonable explanation for the conduct was that the accused held that belief. → And then the saving direction: even if the jury concludes that the accused had that belief, they must still decide, on the evidence as a whole, whether the prosecution has proved guilt beyond reasonable doubt. The implied admission is not a shortcut to a verdict. → Drafting latitude — s 21(2): the judge is not required to refer to each act or omission and may describe the conduct in general terms.
GATE 6 The request directions — ss 22 and 23 — and the s 24 prohibition
What must defence actually ask for? Neither direction is automatic. Both must be requested, and the request mechanics differ. → s 22 — the innocent-explanation warning: where a s 21 direction is given or proposed, the defence may request under s 12 that the judge warn the jury that (a) there are all sorts of reasons why a person might behave in a way that makes them look guilty; (b) the accused may have engaged in the conduct even though they are not guilty; and © looking guilty does not necessarily mean the accused is guilty. The judge must give the requested direction unless there are good reasons not to under s 14. → s 23 — the improper-use warning: a direction to avoid the risk of improper use of the evidence. It is given only upon request, unless there are substantial and compelling reasons under s 16. It is the direction to seek where the conduct is admitted solely to attack credit but carries a live risk the jury will treat it as an implied admission. → s 24 — the closed list: the judge is prohibited from giving any direction regarding incriminating conduct except as provided by Division 1 of Part 4. Directions must refer to the "offence charged" or "wrongful conduct" (Zoneff v R (2000) 200 CLR 234; R v Chang VSCA 149).
The common law — what went, what stayed¶
| Position | |
|---|---|
| Abolished | s 24 (Note 1) confirms the common law rules of direction based on Edwards v R (1993) 178 CLR 193 and Zoneff v R (2000) 200 CLR 234 are wholly abolished. The rigid, complex common law jury directions and warnings — which frequently tripped up trial judges and caused miscarriages of justice — are completely gone. The trial judge no longer delivers the technical Edwards or Zoneff formulations. |
| Survives | The substantive common law principles of admissibility and gatekeeping survive. The trial judge's gatekeeping role is preserved and now operates through s 20. |
Do not write an Edwards direction
The most common error in this topic is reproducing the common law formulation. The directions are abolished; the gatekeeping is not. Cite Edwards and Zoneff for what they now are — the abolished direction rules named in s 24 Note 1 — and cite Ciantar and Ristevski for the surviving capability test.
Interaction with the Evidence Act 2008 (Vic)¶
• Admissibility for another purpose does not escape Part 4. The Part 4 obligations apply even if the conduct is admissible for another purpose under the Evidence Act — such as relationship, context, or other misconduct evidence (s 20(2)).
• s 20(1)(b) and s 137 are the same exercise. The trial judge's gatekeeping assessment under s 20(1)(b) — whether the conduct is "reasonably capable" of being viewed as incriminating — is conceptually identical to the balancing a judge must perform under s 137 Evidence Act 2008 (Vic), weighing probative value against the danger of unfair prejudice (DPP v Scriven (Ruling No 4) VSC 220; Dupas v The Queen (2012) 40 VR 182).
• The propensity risk is the reason for s 23. Post-offence conduct carries an acute risk of improper "propensity reasoning" — the jury inferring guilt simply because the accused is a liar or a coward. The s 23 direction acts as a statutory shield, strictly instructing the jury that they must not conclude from the conduct that the accused is guilty of the offence.
• Where the conduct is also other misconduct evidence. Where the conduct is characterised as "other misconduct evidence" under s 26 of the Jury Directions Act 2015 (Vic), ss 27 and 29 operate to warn the jury against using the conduct as tendency (propensity) evidence.
Authorities at a glance¶
| Case | The point it stands for |
|---|---|
| R v Ciantar (2006) 16 VR 26 | The capability test. If an innocent explanation is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the conduct is "intractably neutral", the judge must refuse to leave it to the jury. Conduct is assessed in the context of the evidence as a whole. Multiple charges → each charge separately. |
| DPP v Ristevski (Ruling No 1) VSC 165 | Capable for one offence, not another. Disposal of the body and lies were admissible to prove the accused killed his wife, but not capable of proving murderous intent — a panicked cover-up being equally consistent with manslaughter made the conduct "intractably neutral" as to intent (Beale J). |
| Baker (a pseudonym) v The King VSCA 139 | Post-offence conduct is highly seductive and easily misused by juries, which is why the scheme is strictly enforced. The prosecutor's final address remarks amounted to "reliance" on incriminating conduct; absent s 19 notice and s 20 leave, the trial miscarried and a retrial was ordered. |
| Portea v The King VSCA 255 | Admitting disputed post-offence conduct without complying with the Part 4 procedural requirements (notice and the capability assessment) is a material error → convictions quashed, retrial ordered. |
| Stern v The King VSCA 57 | Admissions by silence during police-recorded pretext conversations are "conduct" and "incriminating conduct" under s 18 — so s 19 notice must be given and s 21 directions must follow. |
| R v Birchall VSC 172 | There is no express provision permitting the prosecution to amend a notice of incriminating conduct once served; s 8 remains available to abridge or extend time (Lasry J). |
| Lowe v R (2015) 48 VR 351 | Where the conduct goes only to credit and does not constitute an implied admission of guilt, a s 21 direction must NOT be given. |
| Zoneff v R (2000) 200 CLR 234; R v Chang VSCA 149 | Directions must refer to the "offence charged" or "wrongful conduct". Zoneff (with Edwards) is otherwise abolished as a source of direction by s 24 Note 1. |
| Edwards v R (1993) 178 CLR 193 | The abolished common law lies direction — named in s 24 Note 1 as wholly abolished. |
| DPP v Scriven (Ruling No 4) VSC 220; Dupas v The Queen (2012) 40 VR 182 | The s 20(1)(b) capability assessment is conceptually identical to the s 137 Evidence Act balancing. |
| Hussain v The King VSCA 288 | Failing to call emergency services, where an urgent response is expected, can be incriminating conduct. |
| R v Salahattin 1 VR 521; R v Gallagher 2 VR 671 | Admissions by silence — where speech could have been expected, or a conscious omission of details amounts to an implied admission. |
| WA v McBride WASC 275; R v LAF QCA 130 | Pretext conversations — failure to deny, demonstrated specific awareness, or generalised admissions. |
| R v McKenna (1956); R v Gay VR 577 | Flight from the scene or from police. |
| R v Liddy (2002) | Threatening witness testimony or inducing perjury. |
The advocate's checklist¶
• Demand the s 19 notice early. It must be filed and served 28 days before the trial is listed to commence, with a copy of the evidence, and must precisely identify the conduct. No notice and no s 20 leave is a retrial point (Baker; Portea).
• Take the s 20 point before the jury hears it. Capability is assessed on the evidence as a whole. Argue "intractably neutral" and the inherently likely innocent explanation (Ciantar).
• Split the conduct by charge and by element. Ristevski is the model: conduct capable of proving the killing may be incapable of proving intent. Concede the first, fight the second — and remember "offence charged" includes alternative offences (s 18).
• Police the credit/admission line. If the Crown opened on credit, hold them to it — a s 21 direction must not be given for credit-only conduct (Lowe), and any drift in closing is reliance that triggers the whole regime (Baker).
• Ask for the s 22 direction expressly. Request it under s 12; the judge must give it unless there are good reasons not to under s 14. It is the direction that tells the jury looking guilty does not mean being guilty.
• Ask for the s 23 direction where credit-only conduct is admitted. It is given only on request unless s 16 substantial and compelling reasons apply, and it is the statutory shield against propensity reasoning.
• Check for the pretext call. Silence in a police-recorded pretext conversation is s 18 conduct (Stern) — so the Crown owed you notice, and probably did not give it.
• Resist any amendment of the notice. There is no express power to amend once served; s 8 goes to time, not content (Birchall).
• Run s 137 alongside s 20. The assessments are conceptually identical (Scriven; Dupas), so a loss on one is not automatically a loss on the other — but a win on either keeps the conduct out.
Currency watch¶
• 13 August 2026 — this sheet was rebuilt. The Crimes Act source in that material is dated April 2026.
• Before the exam — confirm the Part 4, Division 1 section numbering against the current Jury Directions Act 2015 (Vic) consolidation. The return referred to a No. 1/2026 amendment affecting Part 5 (consent) numbering in the same Act, so the Act is under active amendment.
• Section 19 timing — the 28 day pre-trial notice period is the figure to double-check; it is the single most examinable number in this topic and the one most likely to move.
• Cross-check the JDA request architecture — s 12 (request), s 14 (good reasons not to give a requested direction), s 16 (substantial and compelling reasons to give a direction not requested). These general provisions govern ss 22 and 23 and are amended independently of Part 4.