The O'Leary v The King principle permitting evidence of conduct forming part of a connected transaction remains operative under the Evidence Act 1995 (NSW) and such evidence does not constitute tendency evidence within Part 3.6. Evidence of consciousness of guilt should not be left to the jury where an alternative explanation — such as protecting a co-accused relative — is so plausible that it would not be open to the jury to be satisfied the conduct was motivated by the accused's own guilt. A conviction based on combining indirect identification evidence with consciousness of guilt evidence may be unreasonable where the identification evidence is weak and the consciousness of guilt evidence is substantially diminished by alternative explanations.
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