Consciousness of guilt, lies and flight
[2-950] Introduction
The Crown can rely upon the accused’s post-offence conduct as evidence of a consciousness of guilt. This will usually be in the form of a lie (either in or out of court) or flight (absconding to avoid arrest or trial). But it can include other forms of conduct: McKey v R [2012] NSWCCA 1; see Pollard v R (2011) 31 VR 416, where the evidence of the accused hiding his mobile phone was admitted on this basis. Such evidence will generally be part of a Crown’s circumstantial case or evidence supporting direct evidence such as an admission.
[2-953] Alternative charges and included offences
Difficulties can arise in the case of alternative charges. Generally it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act: The Queen v Baden-Clay (2016) 258 CLR 308 at [73] approving R v White [1998] 2 SCR 72. Where there is an alternative charge, whether on the indictment or not, an assessment needs to be made as to whether consciousness of guilt reasoning can serve to prove one or the other: R v Ciantar (2006) 16 VR 26 at [40]–[42], [64]–[68], [77]–[78], [81]–[87]. The judge should ask the Crown Prosecutor how the Crown seeks to use the accused’s post-offence conduct to show a consciousness of guilt of the alternative charge.
The issue is determined in light of the specific facts of the case — there are no “… rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given …”: Zoneff v The Queen (2000) 200 CLR 234 at [15]. In The Queen v Baden-Clay, the issue arose as to whether post-offence conduct could be used to specifically prove the accused’s murderous intent. The court held that there is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter and that the issue will turn on the nature of the evidence in question and its relevance to the real issue in dispute: at [74]. In some cases, an accused’s post-offence conduct may go to such lengths in concealing or distancing themselves from the death as to provide the jury with a basis to conclude the accused had committed an extremely serious crime and warrant a conclusion beyond reasonable doubt as to the accused’s responsibility for the death and the concurrent existence of the intent necessary for murder: at [74]. In Lane v R [2013] NSWCCA 317 at [111] (cited with approval in The Queen v Baden-Clay at [75]), the court held that the jury were entitled to take the post-offence conduct of the accused into account as evidencing consciousness of guilt of murder.
In some cases, post offence conduct may be relevant to negative a defence such as self-defence or provocation: Gall v R [2015] NSWCCA 69 at [92]–[93]. In other cases, it may only prove the accused committed the act in question but say nothing about the accused’s state of mind: R v Ciantar at [40]–[42], [64]–[68], [77]–[78], [81]–[87]. Where the act is admitted and the only issue in dispute is the accused’s state of mind, the jury may need to be warned about misusing post-offence conduct as evidence of a consciousness of guilt: SW v R [2013] NSWCCA 103 at [62]–[65]. In SW v R, some post-offence conduct was used to prove the mental state for murder while other conduct was not: at [62]–[63].
[2-955] Lies
Care is necessary when the issue of lies arises: R v Ray (2003) 57 NSWLR 616 at [98]; Healey v R [2008] NSWCCA 229 at [43]. It is important to distinguish between lies being used to attack the credit of the accused and lies being used as evidence of guilt, and the Crown should make it clear what use it is seeking to make of an allegation that the accused lied: R v GJH [2001] NSWCCA 128. Where the issue is one of credit, the jury should not usually be directed as to consciousness of guilt: see Zoneff v The Queen (2000) 200 CLR 234 at [14]–[17]. It is not always necessary for a judge to give a direction on lies: Dhanhoa v The Queen (2003) 217 CLR 1 at [34]; Ahmed v R [2012] NSWCCA 260 at [44]–[45]; KJS v R [2013] NSWCCA 132 at [56]–[57]. It may be necessary for the judge to warn the jury against using lies as evidence of guilt because of the conduct of the Crown in cross-examination or addresses: McKey v R [2012] NSWCCA 1 at [26]–[35]. In AB v R [2023] NSWCCA 165 the jury were not directed regarding consciousness of guilt reasoning as the Crown denied reliance upon it in its case. However, the Crown employed such reasoning to rebut doli incapax in its closing address and the absence of directions caused the trial to miscarry. Generally, the Crown will not have to prove the evidence beyond reasonable doubt unless the lie is being relied upon as an implied admission: Edwards v The Queen (1993) 178 CLR 193 at 201, 210–211; R v Adam [1999] NSWCCA 189 at [55].
As to the use of lies to prove a consciousness of guilt: see generally: Edwards v The Queen at 210 and R v Lane [2011] NSWCCA 157 where the lies could be used for that purpose and R v ST (1997) 92 A Crim R 390 where they could not.
See generally Criminal Practice and Procedure NSW at [2-s 161.62].
[2-960] Flight
Evidence that the accused fled from a place to avoid arrest or trial can be admitted as evidence of consciousness of guilt in a similar way to the use of a lie. The suggested directions at [2-965] concerning the use of lies can be adapted. The most significant direction is that the jury must be satisfied that the accused fled because of a consciousness of guilt of the offence for which they stand charged and not for some other unrelated reason.
As to the admission of evidence of flight: see generally R v Adam [2004] NSWCCA 52 (where the evidence was wrongly admitted) but compare Quinlan v R [2006] NSWCCA 284 and Steer v R [2008] NSWCCA 295 (where the evidence was correctly admitted).
As to the need for a direction to meet a specific case: see for example, Steer v R.
See generally Criminal Practice and Procedure NSW at [2-s 161.62].
[2-965] Suggested direction — lies used as evidence of a consciousness of guilt
The direction should be tailored to the circumstances of each case. It is essential that the alleged lie (or lies) is precisely identified in the summing-up. The suggested direction may need to be adapted where there are alternative charges: SW v R [2013] NSWCCA 103 and The Queen v Baden-Clay (2016) 258 CLR 308 at [73]–[74].
The next direction I must give you concerns the evidence of [the accused] saying [set out evidence of accused’s statement that the Crown alleges amounts to a lie]. The Crown says that this was a lie because [set out evidence that is capable of establishing that the statement was a lie].
First, you must be clear about what a lie is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what they said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.
If you find that [the accused] made the statement I have just referred to, and you find it was a lie, then I must give you a direction about the care with which you must approach the task of deciding what significance, if any, it has. You may take this lie into account as evidence of [the accused’s] guilt but you can only do that if you find two further things which I will refer to shortly. When I say you can take it into account as evidence of [the accused’s] guilt, I am not suggesting that it could prove their guilt on its own. What I mean is that it can be considered along with all of the other facts that the Crown relies upon and which you find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if you found [the accused] told a lie that this finding can prove the guilt of [the accused] by itself.
Apart from the fact that [the accused] made the statement and that it amounted to a deliberate lie, before you can use the lie as some evidence of [the accused’s] guilt you must find two further matters proved.
First, you must find that what [the accused] said that amounts to a lie relates to an issue that is relevant to the offence the Crown alleges that [the accused] committed. It must relate to some significant circumstance or event connected with that alleged offence. The Crown says it is relevant because [set out Crown case on this issue].
Second, you must find that the reason [the accused] told this lie is because they feared that telling the truth might reveal their guilt in respect of the charge they now face. In other words, they feared that telling the truth would implicate them in the commission of the offence for which they are now on trial.
[Where manslaughter is an alternative charge in appropriate cases, the above paragraph can be substituted with:
Second, you must find that the reason [the accused] told this lie is because they feared that the truth would implicate them in relation to the commission of the offence for which they are now on trial because it would indicate they [modify next part of direction as required (see [2-953]): had an intention to kill or inflict grievous bodily harm/was not acting under provocation/did not reasonably believe the actions were necessary in self-defence, etc].]
The Crown says you would be satisfied of that because [set out Crown case on this issue].
You must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal their guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence. [It is dangerous to give too many examples for the reasons stated in R v Jeffrey (1991) 60 A Crim R 384.]
If you think that the lie may have been told for some reason other than to avoid being implicated in the commission of the offence for which [the accused] is now on trial, then it cannot be used as evidence of [the accused’s] guilt. If that is the case, you should put it to one side and focus your deliberations upon the other evidence in the case.
Let me summarise what I have just said. Before you can use what [the accused] said as something which points towards their guilt, you must be satisfied that they lied deliberately. You must find that the lie related to some significant circumstance or event connected with the alleged offence. You must find that the reason [the accused] told this lie was because they feared that the truth would implicate them in relation to the commission of the offence for which they are now on trial.
The defence case in relation to this issue is [set out the defence response in detail appropriate to the circumstances of the case].
[2-970] Suggested direction from Zoneff v The Queen — limiting the use of lies to credit
If the prosecution has not suggested that the accused told lies because they knew the truth would implicate them in the commission of the offence, there may nevertheless be risk of misunderstanding on the part of the jury about the significance of possible lies. The suggested direction below takes account of Zoneff v The Queen (2000) 200 CLR 234 at [23].
You have heard it suggested that [the accused] lied.
[Refer to the evidence said to constitute lie(s).]
Whether [the accused] did in fact lie is a matter for you to decide. To decide that a lie was (or lies were) told, you must be satisfied that [the accused] said something that was untrue and that at the time of making the statement, they knew that it was untrue. Saying something that is untrue by mistake, or out of confusion or forgetfulness, is not a lie.
If you decide that a lie was (or lies were) told, you cannot use that fact in support of a conclusion that [the accused] is guilty. A lie cannot prove [the accused’s] guilt and nor can a lie be used in conjunction with the other evidence that the Crown relies upon to prove [the accused’s] guilt.
The only use you can make of the fact that [the accused] told a lie (or lies) is in your assessment of their credibility. If you are satisfied that they did lie, then that may be considered by you as having a bearing upon whether you believe the other things that they have said.