Under ss 20 and 21 of the Jury Directions Act 2015 (Vic), the trial judge determines whether evidence is reasonably capable of being viewed as incriminating conduct on the basis of the evidence to be adduced or already adduced at trial, not on the basis of all depositional material. Post-offence conduct evidence involving a prolonged siege with hostages is capable of being powerfully probative of consciousness of guilt, and its prejudicial effect can be adequately addressed by judicial directions against tendency reasoning. An alternative explanation of irrationality for post-offence conduct will not render incriminating conduct evidence inadmissible where the evidence, viewed in context of preceding flight events, supports the inference that the accused's conduct was motivated by consciousness of guilt.
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