There is no general principle that post-offence conduct evidence must be excluded under s 137 of the Evidence Act 1995 (NSW) merely because the accused's explanation for the conduct would involve revealing other criminal proceedings, particularly where those proceedings resulted in acquittal rather than conviction. Where the circumstance of aggravation charged under s 95(1) of the Crimes Act 1900 (NSW) is deprivation of liberty, the actual use of violence and use of a weapon may properly be taken into account as additional aggravating features. An applicant will not be permitted to raise on appeal a challenge to the unavailability of a witness under s 65 of the Evidence Act where the position taken on appeal is completely contrary to the position taken at trial.
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