Section 21 of the Jury Directions Act 2015 (Vic) compels a direction on incriminating conduct if the prosecution relies on such evidence, but does not prohibit such a direction being given in the absence of express reliance — particularly where the parties have agreed to the direction and defence counsel has requested the additional direction under s 22. Lowe v The Queen is confined to cases where the prosecution expressly disavows reliance on its notice of incriminating conduct. Post-offence statements urging a complainant to withdraw allegations are not 'neutral' as to guilt and do not involve bootstraps reasoning where the jury can independently conclude the accused was attempting to persuade the complainant to lie.
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