Asking a jury 'Is there a reasonable possibility?' of an exculpatory matter in a question trail is not erroneous and does not distort the burden or standard of proof, provided the jury is otherwise correctly directed on the Crown's onus. However, the question remains contentious, with a strong dissent arguing the positive formulation tends to reverse the onus. Section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the offence to be part of a broader planned criminal activity, not merely that the offence itself was planned, though planning may still be taken into account as an aggravating factor under s 21A(1)(c).
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