Where the prosecution leads post-offence conduct evidence and then disavows reliance on consciousness of guilt, the trial judge must direct the jury both as to the permissible use of the evidence and, in unequivocal terms, that the jury cannot reason that the conduct demonstrates consciousness of guilt. A mere statement that the evidence is 'one circumstance' in a circumstantial case is insufficient. Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) (unreasonable verdict) is assessed by reference to the evidence at trial only; new evidence must be assessed under s 30(3)(c) (miscarriage of justice).
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