A prosecutor's invitation to the jury to infer guilt from the accused's post-offence conduct constitutes incriminating conduct reasoning requiring compliance with Part 4 of the Jury Directions Act 2015 (Vic), regardless of the wider context of the address. The absence of an incriminating conduct notice, judicial determination, and mandatory direction under ss 19-21 of the JDA constitutes an error or irregularity capable of resulting in a substantial miscarriage of justice. The Court also confirmed that the absence of objection by defence counsel does not cure the irregularity.
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