Where an accused's post-offence conduct is equally explicable by an innocent reaction to the revival of allegations (irrespective of their truth), the conduct is 'intractably neutral' and must not be left to the jury as incriminating conduct under s 20(1)(b) of the Jury Directions Act 2015 (Vic). The trial judge's gatekeeper role requires active assessment of the plausibility of innocent explanations, and failure to do so constitutes error. Jury directions under ss 21 and 22 cannot cure the prejudice because the act of admitting the evidence conveys to the jury that the guilt-reasoning path is legitimate. Separately, inconsistencies in a child complainant's evidence on course of conduct charges must be assessed with allowance for the fact that such charges cover a course of offending over a substantial period, and evidence about what 'sometimes' happened may differ from other occasions without reflecting on credibility.
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