Published by Geoff Harrison | 27 August 2023
In a criminal trial, a common issue is in relation to lies. The Crown can rely upon an accused's lie/s in either of two ways, firstly to prove a consciousness of guilt or secondly, as to an accused's credit: see generally Edwards v R (below). The Crown must make clear as to whether they rely upon the lie as going towards evidence of the accused's consciousness of guilt or credit: R v GJH as per Wood CJ at CL at [62].
For the Crown to rely upon lies as a consciousness of guilt, the jury is generally directed:
Must be satisfied as to the existence of a deliberate lie.
A lie cannot prove the existence of an accused's guilt by itself; however, it can be taken into account with all of the other evidence.
The lie must relate to a significant circumstance or event connected with the alleged offence.
The reason for the lie is that the accused feared that if they told the truth, it might reveal their guilt in relation to the charge.
That people do not always act rationally and that there may be some other reason for the telling of a lie eg. panic, or to protect some other person.
If the jury rationalises that the lie may have been told for some other purpose other than from a consciousness of guilt, then the lie cannot be used to infer guilt.
Where the Crown relies upon a lie going towards evidence of credit, the jury is generally directed:
They must be satisfied as to the existence of a deliberate lie.
If satisfied that the accused has lied, that the lie by itself or with other evidence cannot be used to infer the accused's guilt.
The only use that can be made of the lie is in the assessment of the accused's credibility and in the assessment of accepting or rejecting other things said by the accused.
Other Sources:
Cases:
LH v R [2024] NSWCCA 165 (See [118] re Consciousness of guilt and demeanour)
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Edwards v R [1993] HCA 63; (1993) 178 CLR 193; (1993) 68 A Crim R 349 (17 November 1993)
HIGH COURT OF AUSTRALIA
EDWARDS v. THE QUEEN [1993] HCA 63; (1993) 178 CLR 193
F.C. 93/052
Number of pages - 18
[1993] HCA 63; (1993) 68 A Crim R 349
Criminal Law
HIGH COURT OF AUSTRALIA
BRENNAN(1), DEANE(2), DAWSON(2), GAUDRON(2) AND McHUGH(3) JJ
CATCHWORDS
Criminal Law - Evidence - Sexual offence - Corroboration - Lies by accused - When corroborative of complainant's evidence - Directions to jury.
HEARING
BRISBANE, 1993, June 28, 29; CANBERRA, November 17. 17:11:1993
ORDER
Appeal allowed.
Set aside the order of the Court of Criminal Appeal of Queensland and in lieu thereof order that the appeal to that Court be allowed and that the appellant's conviction be quashed and a verdict of acquittal be entered.
DECISION
BRENNAN J On 9 October 1989, 19 prisoners were transported in the
back of a prison van from Woodford Correctional Centre near Brisbane
to the Rockhampton Correctional Centre at Etna Creek. This was a
day's journey, the first stage of a journey to Townsville. The
prisoners were to stay overnight at Etna Creek. The van was divided
into two by a partition, 10 prisoners on one side of the van, 9 on
the other. Some of the prisoners were handcuffed individually, some
were handcuffed to another prisoner. They were to sit on benches
along either side of the van. The van was equipped with a portable
toilet and a box containing some food and drink. The mode of
transportation was barbarous: there were no means of supervising
the prisoners in the van, nor were the prisoners let out of the van
en route to Etna Creek. However, the Court was informed that the mode
of transportation of prisoners in Queensland has since been changed
and the present arrangements afford continuous supervision of
prisoners being transported and frequent stops on lengthy journeys.
2. The appellant Edwards, who was one of the prisoners in the van, was convicted of procuring another of the prisoners, Glen Edward Williams, to commit an act of gross indecency upon him, the consent
of Williams being obtained by threats and by fear of bodily harm.
Williams gave evidence that he was hit by other prisoners and forced
to commit acts of gross indecency upon them in the course of the
journey. Then, he said, Edwards procured him to put Edwards' penis in
his mouth by promising that he, Edwards, would protect Williams from
further assaults. When the van arrived at Etna Creek, Williams was
taken to the Rockhampton Base Hospital where he was found to be
suffering from multiple soft tissue injuries, particularly of the
head. There was no other evidence in the prosecution case which
corroborated the evidence given by Williams.
3. Edwards gave evidence in his defence, denying that he had hit Williams during the journey to Etna Creek or that he had had anything at all to do with Williams during that journey. In the course of his
evidence, this passage appears:
" Did you see anything happen in relation to Mr Williams?
-- There were things going on, but I just didn't worry
about it.
Why is that?-- I didn't want to get involved in it. If
I had seen something I probably would have got the same
treatment."
4. In cross-examination Edwards said:
" You say that things were going on in the van during the
journey. That was over quite some considerable distance,
wasn't it, that these things were going on?-- Yes.
What was going on?-- I just didn't look. I looked the
other way.
Mr Edwards, you have said that you didn't want to say
anything because you might get beaten up?-- Yes. If you
say anything in there you are classed as a dog and that
means you get flogged, so that's why prisoners just mind
their own business in there.
It is difficult to look the other way for such a
substantial time of the journey, isn't it?-- I looked over
once or twice when it stopped. I shook my head and looked
away.
What did you see?-- He was just sitting there crying,
that was it.
Was he displaying any injuries?-- It looked like it.
...
Who was striking him?-- I wouldn't have a clue.
...
... you agreed that over a substantial distance things were
going on?-- Yes.
Do you mean by that that the complainant was being
assaulted?-- I don't really know.
What do you mean, that things were going on?-- Well, he
would get - Williams would get pushed and Martin would lean
up against me. I asked Martin to move up a little bit
more. Every time I would turn around I would just see
Williams crying or something.
So, at no stage along that entire trip did you actually
see any blows struck at all?-- No.
...
You weren't curious at all?-- Seen too many beatings in
gaol. I just don't look at them.
Well, presumably you didn't put your hand over your
ears?-- No.
What did you hear?-- I just heard them calling him a dog
and stuff like that.
Who was calling him a dog?-- I couldn't tell you who it
was."
Later in his cross-examination he gave evidence of having seen and
heard something. He said:
" Do you still say that at no stage over several hours did
you ever see anybody touch Mr. Williams?-- No.
Is that the truth or are you simply not wishing to be a
dog?-- That is the truth - at one stage I seen Wallace, but
that was about it. That was the only person.
This might be something fresh. What did you see about
Wallace?-- I just seen him push him. That was it.
...
Why didn't you tell us that before?-- I don't know.
...
Why didn't you tell us that before that Wallace pushed
Williams?-- It only come back to me.
...
And the sound that you heard, was that sound like a
punch or a slap? Do you know the difference in the sound?
-- Yes.
Which did it sound like?-- It sounded like a slap.
And Wallace was leaning across?-- Yes.
What about Williams at that time? Was he still seated
on the bench?-- He was half and half.
...
And I suggest you heard Wallace ... call out to him in
these terms, or call out in these terms, 'Anyone who wants
a head job, go down and see him'?-- No.
And ... he said to Williams, 'You had better do it or
you'll get bashed'?-- No.
I am not suggesting those are the exact words but along
that line?-- I don't - couldn't really say if it was
Wallace or not.
Did you hear the words being said?-- Yes.
Tell us about this now. What did you hear there?-- I
just heard the words.
What did you hear?-- 'Whoever wants a head job, just
come down here.'
Who said that?-- I'm not sure.
...
So you were listening to what was being said?-- Parts."
5. In the course of the summing up the learned trial judge gave the jury a direction that it was dangerous to convict Edwards on the uncorroborated testimony of Williams alone but he went on to direct
them that if they were satisfied beyond reasonable doubt that Williams
was telling the truth they were entitled to convict. It is arguable
that, although a corroboration warning has ordinarily been given in
the case of a sexual offence allegedly committed between adult
males ((1) Burgess (1956) 40 Cr App R144.), there was no necessity
for such a warning to be given in the circumstances of the present
case. However that may be, the case has been conducted throughout on
the footing that a corroboration warning was necessary. The
prosecution submitted that Edwards told lies in the witness box and
that the telling of those lies corroborated Williams' evidence. The
issue for determination on this appeal is whether the jury were
properly directed as to the corroborative effect of Edwards' evidence.
6. The learned trial judge directed the jury that a lie told in the witness box is capable of corroboration if it fulfils four tests,
being the tests stated by Lord Lane CJ in Reg. v. Lucas (Ruth)
((2) (1981) QB 720, at p.724.):
" To be capable of amounting to corroboration the lie told
out of court must first of all be deliberate. Secondly it
must relate to a material issue. Thirdly the motive for
the lie must be a realisation of guilt and a fear of the
truth. The jury should in appropriate cases be reminded
that people sometimes lie, for example, in an attempt to
bolster up a just cause, or out of shame or out of a wish
to conceal disgraceful behaviour from their family.
Fourthly the statement must be clearly shown to be a lie by
evidence other than that of the accomplice who is to be
corroborated, that is to say by admission or by evidence
from an independent witness."
Although Lord Lane's observations relate to "the lie told out of
court", a lie told in court may also provide corroboration ((3)
ibid., at p.725; Reg. v. Perera [1982] VicRp 91; (1982) VR 901, at p.904.). In
principle, there is no basis for distinguishing between the effects of
testimonial and non-testimonial lies. In either case, the falsity must
be proved by evidence other than the evidence to be corroborated. In
the case of conflict between the evidence to be corroborated and a
testimonial statement by an accused which the prosecution asserts to be
false, the conflict may appear to resolve itself into a mere question
of credibility of opposing witnesses. Yet it would be wrong to hold
that the evidence of one witness is corroborated because it induces the
tribunal of fact to believe that the contrary evidence of the other is
false and the falsity of the latter evidence affords corroboration. A
witness cannot corroborate his or her own evidence ((4) Lonergan v.
The Queen (1963) Tas S R158, at p.164.).
7. Counsel for the appellant accepted Lord Lane's four tests but attacked the manner in which the learned trial judge applied those tests to the facts of the case. If Lord Lane's four tests were to
be applied - a question to which I shall shortly turn - there was
no legitimate ground for attacking the application of the first two
tests. If Edwards was telling a lie in denying what he had seen and
heard in the narrow confines of the van, the jury had ample grounds
for concluding that the lie was both deliberate and related to a
material issue, namely, the violence being done or offered to
Williams. The appellant's first substantial objection to the summing
up was to the alleged omission by the trial judge to draw the jury's
attention to all the innocent explanations which might have accounted
for the telling of a lie by Edwards. The trial judge did draw the
jury's attention to Edwards' stated desire not to "dob people in"
but he did not embellish that observation. No embellishment by the
learned trial judge was needed. Nor was there any request at the
trial for a further direction to be given about those explanations.
8. The chief argument advanced by the appellant was that the jury should have been directed not only that they had to be satisfied by evidence other than Williams' evidence that Edwards had told a
deliberate lie in his evidence because of a realization of guilt and a
fear of the truth, but also that they had to be so satisfied beyond a
reasonable doubt. If a lie is to be treated as corroboration, so the
argument ran, it had to amount to an implied admission of guilt and
no admission of guilt should be acted on unless it be proved beyond
a reasonable doubt. To consider this argument, it is necessary to
determine whether Lord Lane's four tests provide the appropriate
approach to the evaluation of evidence that is said to contain a lie
and that is relied on to corroborate the evidence of another witness.
9. There is some inherent circularity in the third of Lord Lane's tests. If the jury must be satisfied that the motive for the lie is
a realization of guilt and a fear of the truth, the jury must be
satisfied that there is guilt to be realized before it decides whether
to treat the supposed lie as corroboration of other inculpatory
evidence. If the jury is satisfied of the accused's guilt, it would
be unnecessary to consider whether his evidence is corroborative of
evidence tending to prove his guilt. The third test is inappropriate.
The relevant inference is not that the accused realized his guilt but
that, in making his statement, he was unable to account innocently for
the evidence that has been given against him. That approach appears
in Eade v. The King ((5) [1924] HCA 9; (1924) 34 CLR 154, at p.158.), where
Knox CJ, Gavan Duffy and Starke JJ said:
"Now, if a jury be of opinion that the prisoner's statements
are false, then they may properly come to the conclusion
that his falsehood indicates that the child's story is
true, and that he is telling lies in order to discredit the
evidence of the other witnesses because he is unable to
account for what they say they saw, in any way consistent
with his own innocence. Corroboration may be found in
independent evidence or in admissions of the prisoner,
or in inferences properly drawn from his conduct and
statements. And it is, in our opinion, for the jury in
the present case to say what complexion the conduct and
statements of the prisoner bear."
10. When a jury places an adverse complexion on the conduct and statements of an accused and comes to the view that he is unable to account innocently for the evidence given against him, the jury may
act with more confidence on the evidence which is sought to be
corroborated. They are entitled to say: although it would otherwise
be dangerous to convict on the evidence to be corroborated, the
accused is unable to account innocently for the facts revealed by
that evidence and it is therefore safe to act on it. In Reg. v.
Mullins ((6) (1848) 3 Cox C.C.526, at p.531.), Maule J pointed out
that evidence might "be confirmed by the absence of contradiction, when
if untrue, contradiction might be easily afforded". Of course, this is
not to say that some evidentiary onus is placed on an accused to give
evidence to contradict the case against him but, if he chooses to give
evidence in contradiction of the evidence to be corroborated and his
contradiction is a lie, the jury may regard the telling of the lie as
confirming the credibility of the witness whose evidence is to be
corroborated.
11. In considering whether an accused has lied because he is unable to account innocently for the evidence of the witness to be corroborated, the jury are engaged in assessing the credibility of that witness as a
preliminary to the finding of the material facts. No question of
proof to a particular standard governs the assessment of credibility.
The jury are not then using the accused's evidence as conduct which
is itself probative of guilt. In Doney v. The Queen ((7) [1990] HCA 51; (1990) 171
CLR 207, at p.211.) this Court said:
" It is not necessary that corroborative evidence,
standing alone, should establish any proposition beyond
reasonable doubt. In the case of an accomplice's evidence,
it is sufficient if it strengthens that evidence by
confirming or tending to confirm the accused's involvement
in the events as related by the accomplice".
Standards of proof become relevant to the finding of the facts on
which the verdict depends - the facts constituting the elements of an
offence or, in the case of insanity and some other exceptions, the
elements of a defence and, where those facts are matters of inference,
the facts from which the inference might be drawn. But the jury
should not be directed that the corroborative effect of the making of
a false statement by an accused depends on a finding beyond reasonable
doubt either of its falsity or of the reason for making the false
statement.
12. It is sufficient that the jury be told that, if they form the view on the evidence other than the evidence to be corroborated that the accused has told a deliberate and material lie and that he did so
because he was unable innocently to account for the facts revealed in
the evidence to be corroborated, the jury is entitled to regard the
telling of the lie as corroboration of that evidence. It then remains
for the jury to find the facts upon which the verdict depends. It is
at that stage that the question of standard of proof arises.
13. However, if the prosecution seeks to rely on the telling of the lie as an admission of guilt and invites the jury to treat that
evidence as an independent proof of guilt, the prosecution bears the
same onus as it bears whenever it relies on an alleged confession as
an independent proof of guilt. It must prove beyond reasonable doubt
that a confession of guilt was made.
14. Whether the making of a statement proved to be false is capable of amounting to a confession depends on the terms of the statement, the circumstances in which it is made, the nature of the offence charged
and the other evidence in the case. It may be that in some cases the
falsity of a statement which is exculpatory in terms could give to the
accused's conduct the character of a confession, but such a confession
would be an admission by conduct. When the supposed admission
consists in the making of a false denial of guilt, the prosecution is
hard put to turn the denial into an admission. As Lowe J said in
Edmunds v. Edmunds and Ayscough ((8) [1935] VicLawRp 35; (1935) VLR 177, at p.186.):
"(B)y no torturing of the statement 'I did not do the act'
can you extract the evidence 'I did do the act.'"
Burbury CJ was equally cautious in Lonergan v. The Queen ((9)
(1963) Tas S R, at p.160.):
"The jury must clearly understand that it is only within
strict limits that false statements and denials may be
relied upon as independent proof of the affirmative of the
issue."
15. If the prosecution were to rely on the telling of a lie as an independent proof of guilt, the jury would have to be directed that, in order to convict on that basis, they must be satisfied beyond
reasonable doubt that the true inference to be drawn from the
accused's conduct is that he has confessed his guilt. In such a case,
the jury would have to be satisfied beyond reasonable doubt as to Lord
Lane's third test, for the accused's conduct could not otherwise
amount to a confession of guilt. It would surely be a rare case in
which it would be permissible to infer beyond reasonable doubt that an
accused, by telling a lie, has confessed his guilt. Generally, the
jury is directed that the accused should not be convicted merely
because he has told a lie.
16. The telling of a lie by an accused is frequently relied on as a piece of evidence tending to inculpate the accused in the offence charged. The jury must consider the weight to be given to that
evidence, but the weight of particular pieces of evidence does not
involve a standard of proof. The relevant standard of proof governs
the making of a finding of material fact on the pieces of evidence
which logically, if not chronologically, the jury has already
evaluated. The standard directions given by judges to juries in
criminal cases distinguish (perhaps without consciously adverting to
the distinction) between the evaluation of evidence and the finding
of material facts. Recognition of this distinction goes a long way
towards avoiding whatever misunderstanding there may be about the
majority judgments in Chamberlain v. The Queen (No.2) ((10) [1984] HCA 7; (1984) 153
CLR 521.) relating to the drawing of an inference of guilt.
17. The drawing of an inference is part of the process of finding material facts: if it be right to say that no inference of guilt can be drawn unless the jury is satisfied that reasonable hypotheses
consistent with innocence are excluded, the jury must be satisfied
beyond reasonable doubt as to the facts from which the inference is
drawn and on which the validity of the inference necessarily depends.
It is logically impossible to be satisfied beyond reasonable doubt
that an inferred fact exists without being satisfied beyond reasonable
doubt of the existence of those facts from which the inference is
drawn. If the emergence of an accused from the scene of the murder
holding a smoking gun is the only evidence offered in proof of guilt,
the case against him fails if there be a reasonable doubt about the
identity of the person seen or the place where the fatal shot was
fired or that the thing held by the accused was a smoking gun. There
can be no superstructure erected without the foundations needed to
support it. That is what the majority in Chamberlain (No.2) said, but
the proposition embraced by the majority was a proposition of logic
rather than of law. To apply the proposition, precision in
identification of the inference to be drawn and of the facts from
which it can be drawn is essential, especially in a case where an
inference of guilt is said to arise from a number of facts which are
not themselves established beyond reasonable doubt. In such a case,
it is essential to identify the foundation of fact from which such
an inference might be drawn. It cannot be drawn from particular
facts the existence of which is established only on the balance of
probabilities, for it is a reasonable hypothesis that some or all of
the facts on which the inference depends do not exist. If a guilty
inference is to be drawn, it must be based on the concatenation
of probabilities itself. The existence of a concatenation of
probabilities may exclude an innocent hypothesis - it depends on the
nature, number and relationships of the probabilities - but the
concatenation of probabilities is the fact on which the guilty
inference must be based. Chamberlain (No.2) was not a case of this
kind: there the prosecution contended for an inference of guilt based
on one or more discrete facts (such as the presence of foetal blood
in the accused's car or the cutting of the baby's clothing by human
hand). The inference of guilt could not have been drawn if the fact
or facts on which it had to be based were not proved to the jury's
satisfaction beyond reasonable doubt.
18. The problem of an absence of a uniform nomenclature by which to distinguish between a fact to be inferred, the facts from which the
inference is drawn and the evidence was addressed in the analysis of
the Chamberlain (No.2) judgments which Dawson J made in Shepherd v.
The Queen ((11) [1990] HCA 56; (1990) 170 CLR 573.). His Honour referred to a
passage in the judgment of Gibbs CJ and Mason J in Chamberlain
(No.2) ((12) (1984) 153 CLR, at p.559.) in which their Honours
were considering the sufficiency of evidence safely to establish that
there was foetal blood in the accused's car. Dawson J said ((13)
(1990) 170 CLR, at p.583.):
"There were various items of evidence upon which the Crown
relied to establish the intermediate fact - their Honours
refer to it as a primary fact - that the blood, if any, in
the car was foetal blood. Their Honours do not suggest
that each of those items was required to be proved beyond
reasonable doubt. But the intermediate fact, if it was to
be the basis of an inference or inferences leading to a
verdict of guilty, was required to be proved beyond
reasonable doubt. I do not understand their Honours to
have said any more than that."
His Honour thus distinguished between evidence, intermediate facts,
and inference based on intermediate facts. After citing a passage
from my judgment in Chamberlain (No.2) ((14) (1984) 153 CLR, at
p.599.), Dawson J said ((15) (1990) 170 CLR, at p.584.):
"In that passage the reference to 'the primary facts from
which the inference of guilt is to be drawn' is clearly a
reference to such intermediate conclusions of fact as are
necessary for the drawing of the inference of guilt and is
not a reference to each basic fact - each individual item
of evidence - upon which those conclusions may be based.
... The term 'primary facts' is apt to confuse if it is
used to refer to the basic facts - the individual items of
evidence - as well as to the factual conclusions from which
inferences may be drawn." (Emphasis added.)
Adopting his Honour's nomenclature, Chamberlain (No.2) requires that
no element of the offence be inferred adversely to an accused unless
the intermediate facts from which the inference is drawn be proved
beyond reasonable doubt. But, as Shepherd holds, Chamberlain (No.2)
imposed no requirement that the jury accept beyond reasonable doubt
every piece of inculpatory evidence relevant to the existence of an
intermediate fact. The evaluation of evidence is a matter for each
juror to approach in the light of his or her experience of life but
the standard of proof beyond reasonable doubt governs the finding of
facts essential to the guilt of the accused on the offence charged.
The pieces of evidence are "strands in a cable" tending to establish a
material fact, but intermediate facts established by evidence are
links in the chain of proof of the fact to be inferred ((16) ibid., at
p.579.). The standard of proof applies to links; it says nothing
about the strands.
19. If the ultimate facts - those which constitute the elements of the offence charged - are to be inferred from intermediate facts, the standard governs both the finding of the intermediate facts and the
drawing of the inference from them. Again, this is a proposition of
logic flowing from the legal rule that the prosecution bears the onus
of proving guilt beyond reasonable doubt. The logical proposition
must control what is said in a summing up by the trial judge, but the
trial judge does not have to expound the proposition to the jury in
every case. Sometimes it is necessary to direct the jury to apply the
standard of proof specifically to the finding of the intermediate
facts (as in Chamberlain (No.2)) or to the drawing of an inference
from them (as in Peacock v. The King ((17) [1911] HCA 66; (1911) 13 CLR 619, at
pp.634, 651-652, 662.) ) but it is often sufficient to give a direction
that applies the standard of proof to the general finding of guilt.
What is erroneous is a direction that the standard of proof governs the
jury's evaluation of pieces of evidence ((18) Shepherd (1990) 170
CLR, at p.585.).
20. Where the telling of what the prosecution alleges to be a lie is not relied on as a confession of guilt, the accused's conduct in
making the statement in which the alleged lie is told nevertheless may
be evidence relevant to his guilt. The jury may be able to infer
guilt from the making of the statement and from the surrounding
circumstances. In such a case, the making of the statement is not
necessarily advanced as corroboration of another witness - it may be a
case where no question of corroboration arises - but it is advanced as
one piece of evidence among others from which the jury is invited to
act in finding facts adverse to an accused. That was the kind of case
to which Lord Devlin's remarks in Broadhurst v. The Queen ((19) (1964)
AC 441, at p.457.) were directed:
" It is very important that a jury should be carefully
directed upon the effect of a conclusion, if they reach it,
that the accused is lying. There is a natural tendency for
a jury to think that if an accused is lying, it must be
because he is guilty, and accordingly to convict him
without more ado. It is the duty of the judge to make it
clear to them that this is not so. Save in one respect, a
case in which an accused gives untruthful evidence is no
different from one in which he gives no evidence at all.
In either case the burden remains on the prosecution to
prove the guilt of the accused. But if upon the proved
facts two inferences may be drawn about the accused's
conduct or state of mind, his untruthfulness is a factor
which the jury can properly take into account as
strengthening the inference of guilt. What strength it
adds depends, of course, on all the circumstances and
especially on whether there are reasons other than guilt
that might account for untruthfulness."
21. In the present case, the jury were entitled to conclude on the basis of Edwards' evidence and demeanour in the witness box that his
evidence about what he had seen and heard in the van was false. The
jury might have come to the view that his motive for telling a lie was
a fear of "dobbing people in", but they were entitled to come to the
view that that was not Edwards' reason for making a false statement.
However, if the jury came to the latter view, in what way was the
telling of a lie material to proof of Edwards' guilt? There was
nothing in the evidence which would have entitled the jury to find
beyond reasonable doubt that Edwards, in telling the lie, had
confessed that he had procured Williams to commit an act of gross
indecency upon him. Nor was the making of a false statement by
Edwards advanced as a fact from which, in conjunction with other
facts, an inference of guilt could be drawn. The telling of a lie in
evidence was advanced merely as corroborative of Williams' evidence.
The case against Edwards rested entirely on the jury's assessment of
the credibility of Williams and Edwards' alleged lie was advanced to
strengthen Williams' credibility.
22. The direction given by the learned trial judge to the jury was a direction as favourable to the appellant as the appellant might have
received on the question of corroboration. The jury were told that,
even though they were satisfied that Edwards had lied in refraining
from disclosing initially what he had seen and heard in the van, the
third test propounded by Lord Lane might not be found to be satisfied.
His Honour said:
"if you are again left with that reasonable possibility that
his motive was one of not dobbing people in, ... then it is
a matter where the Crown have not established whether the
motivation was a realisation of guilt and an endeavour to
hide guilt."
In other words, the jury were told that if it was reasonably possible
that Edwards had refrained from disclosing what he had seen and heard
in the van because he did not want to dob people in, there was no
evidence to corroborate Williams' evidence. Although the direction
based on Lord Lane's third test was inappropriate to the question of
corroboration, a direction in the terms stated could not have produced
any miscarriage of justice.
23. On the directions given them by the trial judge, the jury must have been satisfied beyond reasonable doubt of Edwards' guilt on one of two bases: either it was safe to act on the uncorroborated
evidence of Williams or Williams' evidence was corroborated by
Edwards' conduct in the witness box. If the jury were of the view
that Edwards' conduct was not possibly to be explained by a desire not
to dob people in, the inference was irresistible that Edwards could
not account innocently for what had happened to Williams in the van.
On that hypothesis, the jury were entitled to act on the basis that
Williams' evidence was corroborated by Edwards' conduct. On either
basis the jury were entitled to convict.
24. The appeal should be dismissed.
DEANE, DAWSON AND GAUDRON JJ The appellant, Travice Allan Edwards,
stands convicted of procuring Glen Edward Williams to commit an act
of gross indecency upon him "by threats and by fear of bodily harm".
The act of gross indecency was particularized in the indictment as
"bringing into contact the mouth of the said Glen Edward Williams and
the genitalia of the (appellant)".
2. The charge arose out of events which occurred during the transportation, in a prison van, of about 19 prisoners from Woodford Correctional Centre near Brisbane to the Rockhampton Correctional Centre at Etna Creek. The disturbing details of that journey are set out in the judgment of Brennan J
3. The prosecution case was that Williams had been beaten by several prisoners in the van and forced to commit various acts of indecency upon them, when Edwards procured the act of indecency charged by promising Williams that, in return for oral sex, he would protect him from further bashings. The only prosecution evidence of these events was that given by Williams.
4. The only evidence in the defence case was that of the appellant. He gave evidence denying the offence and, as well, denying anything but a vague, general knowledge of the events in the van. He said that "(t)here were things going on, but (he) just didn't worry about it", explaining that he "didn't want to get involved" because "(i)f (he) had seen something (he) probably would have got the same treatment."
5. During cross-examination, the appellant said that he "just didn't look" or "looked the other way" during the beatings of Williams, but then admitted that he "looked over once or twice when it stopped". He
said that he then saw Williams "just sitting there crying". He denied
that he saw any blows struck, again explaining that he "didn't want to
get involved" because he had "(s)een too many beatings in gaol" and he
"just (did not) look at them". He admitted, however, that he heard
various things and "heard them calling (Williams) a dog and stuff like
that". He said that he heard thumps and "when the thumps stopped (he)
would turn around and have a quick look and then (he) would turn
back".
6. Towards the end of his cross-examination, the appellant was asked whether he had seen "anybody touch Mr Williams". Initially he said that he had not, but immediately afterwards said that he had "seen
Wallace, but that was about it". On further questioning he said that
he had "just seen (Wallace) push him. That was it." He said he had
not told anyone that before because "(i)t only come back to me" (sic).
He then remembered that he had heard two thumps, "(j)ust like slaps",
when he looked around and saw Wallace. He admitted also that he heard
someone say, "Whoever wants a head job, just come down here", but
could not say that the speaker was Wallace. He said he was not sure
who it was.
7. The trial and subsequent appeals, including the appeal to this Court, were conducted on the basis that it would have been dangerous for the jury to convict on the uncorroborated evidence of Williams.
The trial judge gave a warning to that effect and instructed the jury
that they could regard the lies told by the appellant in the witness
box on oath as "capable of corroborat(ing) ... the complainant's
evidence". His Honour indicated that the lies were told "when he
first went into the witness-box (and) said ... that things were going
on but he took no notice and ... could give ... no more information
than that" and that they were established by his later admissions
during cross-examination "that he saw and heard what must have been
physical aggression towards the complainant and the words", "Whoever
wants a head job, just come down here". The jury were further
instructed that they could only consider the lies to be corroboration
if they satisfied the four requirements identified in Reg. v. Lucas
(Ruth) ((20) (1981) QB 720, at p.724.), namely, that the lies
must:
(1) be deliberate;
(2) relate to a material issue;
(3) spring from "a realisation of guilt and a fear of the truth";
and
(4) be clearly shown to be lies by evidence other than that to be
corroborated.
8. There is a difference between the mere rejection of a person's account of events and a finding that a person has lied ((21) Smith v N.S.W. Bar Association [1992] HCA 36; (1992) 176 CLR 256, at p.268. See also Jack
v. Smail [1905] HCA 25; (1905) 2 CLR 684, at p.698; Scott Fell v. Lloyd [1911] HCA 34; (1911) 13
CLR 230, at p.241; Reg. v. Chapman (1973) QB 774, at p.780.). A
lie is a deliberate untruth. To conclude that a statement is a lie is
to conclude that the truth lies elsewhere. In some circumstances, a
finding that a person lied will necessarily involve acceptance of the
contrary ((22) Steinberg v. Federal Commissioner of Taxation [1975] HCA 63; (1975)
134 CLR 640, per Gibbs J at p.694, cf. per Barwick CJ at p.684.
See also Broadhurst v. The Queen (1964) AC 441, at p.457.).
However, the fact that a person has lied does not of itself establish a
specific contrary proposition ((23) See Edmunds v. Edmunds and
Ayscough [1935] VicLawRp 35; (1935) VLR 177, at p.186 where Lowe J said that "by no
torturing of the statement 'I did not do the act' can you extract the
evidence 'I did do the act'".).
9. Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further
and, in limited circumstances, amount to conduct which is inconsistent
with innocence, and amount therefore to an implied admission of guilt.
In this way the telling of a lie may constitute evidence. When it
does so, it may amount to corroboration provided that it is not
necessary to rely upon the evidence to be corroborated to establish
the lie. At one time it was thought that only a lie told out of
court could amount to an implied admission ((24) Tumahole Bereng v.
The King (1949) AC 253, at p.270; Reg. v. Chapman (1973) QB, at
pp.783-784.), but the distinction is not logically supportable and is
no longer drawn ((25) Eade v. The King [1924] HCA 9; (1924) 34 CLR 154, at p.158;
Reg. v. Tripodi [1961] VicRp 30; (1961) VR 186, at pp.193-194; Reg. v. Perera [1982] VicRp 91; (1982)
VR 901, at pp.904-905; Reg. v. Heyde (1990) 20 NSWLR 234, at
pp.236, 241; Reg. v. Boardman (1975) AC 421, at pp.428-429;
Reg. v. Lucas (Ruth) (1981) QB, at pp.724-725; Heydon, "Can
Lies Corroborate?", (1973) 89 Law Quarterly Review 552.). When the
telling of a lie by an accused amounts to an implied admission, the
prosecution may rely upon it as independent evidence to "convert what
would otherwise have been insufficient into sufficient evidence of
guilt" ((26) Dearman v. Dearman [1908] HCA 84; (1908) 7 CLR 549, per Griffith
CJ at p.555.) or as corroborative evidence.
10. But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the
telling of the lie may constitute evidence against him ((27) Eade v.
The King (1924) 34 CLR, at p.158.). In other words, in telling the
lie the accused must be acting as if he were guilty. It must be a lie
which an innocent person would not tell. That is why the lie must be
deliberate. Telling an untruth inadvertently cannot be indicative of
guilt. And the lie must relate to a material issue because the telling
of it must be explicable only on the basis that the truth would
implicate the accused in the offence with which he is charged. It must
be for that reason that he tells the lie. To say that the lie must
spring from a realization or consciousness of guilt is really another
way of saying the same thing. It is to say that the accused must be
lying because he is conscious that "if he tells the truth, the truth
will convict him" ((28) Reg. v. Tripodi (1961) VR, at p.193.).
11. It was argued by the appellant that the requirement laid down in Reg. v. Lucas (Ruth) that the motive for the lie must be "a
realisation of guilt and a fear of the truth" involves circular
reasoning. It was said that, in satisfying the requirement, the jury
must conclude that the accused was guilty before it can use the
telling of a lie by him as evidence against him. Since a conclusion
of guilt can only be reached if it is proved beyond all reasonable
doubt, it was said that the ultimate question must be answered
before the jury come to consider the lie and that would render its
consideration unnecessary ((29) cf. Reg. v. Evans (1985) 38 SASR
344, at pp.347-348; Reg. v. Heyde (1990) 20 NSWLR, at p.244, now
qualified by Reg. v. Meskers, unreported, New South Wales Court of
Criminal Appeal, 13 June 1991, per Wood J at p.40, in the light of
Shepherd v. The Queen [1990] HCA 56; (1990) 170 CLR 573.). By a similar process
it might be argued that the requirement that the lie must relate to a
material issue involves circular reasoning.
12. But in truth there is no circularity of the kind suggested. It is convenient to confine ourselves to the requirement that there be
a consciousness of guilt, but the same analysis is applicable to the
requirement that the lie relate to a material issue. Although guilt
must ultimately be proved beyond all reasonable doubt, an alleged
admission constituted by the telling of a lie may be considered
together with the other evidence and for that purpose does not have to
be proved to any particular standard of proof. It may be considered
together with the other evidence which as a whole must establish guilt
beyond reasonable doubt if the accused is to be convicted ((30) See
Shepherd v. The Queen [1990] HCA 56; (1990) 170 CLR 573.). If the lie said to
constitute the admission is the only evidence against the accused or is
an indispensable link in a chain of evidence necessary to prove guilt,
then the lie and its character as an admission against interest must be
proved beyond reasonable doubt before the jury may conclude that the
accused is guilty. But ordinarily a lie will form part of the body of
evidence to be considered by the jury in reaching their conclusion
according to the required standard of proof. The jury do not have to
conclude that the accused is guilty beyond reasonable doubt in order to
accept that a lie told by him exhibits a consciousness of guilt. They
may accept that evidence without applying any particular standard of
proof and conclude that, when they consider it together with the other
evidence, the accused is or is not guilty beyond reasonable doubt.
13. There is, however, a difficulty with the bare requirements in Reg. v. Lucas (Ruth) that a lie must be material and that it must
be told from a consciousness of guilt. Again it is convenient to
confine ourselves to that last requirement. A bare direction that
consciousness of guilt is required does not provide sufficient
guidance as to what matters indicate its presence. Unexplained, such
a direction allows the jury to decide, in the light of all the
evidence, that a lie was told with a consciousness of guilt and then
to use that finding to corroborate some part of the evidence that led
to the finding of a consciousness of guilt.
14. A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the
accused in circumstances in which the explanation for the lie is that
he knew that the truth would implicate him in the offence. Thus, in
any case where a lie is relied upon to prove guilt, the lie should
be precisely identified, as should the circumstances and events
that are said to indicate that it constitutes an admission against
interest ((31) See M v. R, unreported, Court of Criminal Appeal of
South Australia, 18 August 1993, at pp.4-5.). And the jury should be
instructed that they may take the lie into account only if they are
satisfied, having regard to those circumstances and events, that it
reveals a knowledge of the offence or some aspect of it ((32) See,
e.g., Credland v. Knowler (1951) 35 Cr App R 48; Tripodi v. The Queen
[1961] HCA 22; (1961) 104 CLR 1, at p.10; Buck (1982) 8 A Crim R 208, at p.214;
Reg. v. Preval (1984) 3 NSWLR 647, at pp.650-651; Reg. v. Evans
(1985) 38 SASR, at pp.348-349; People v. Showers (1968) 440 P 2d
939, at p.942.) and that it was told because the accused knew that the
truth of the matter about which he lied would implicate him in the
offence, or, as was said in Reg. v. Lucas (Ruth), because of "a
realisation of guilt and a fear of the truth".
15. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt ((33) See, e.g., Lonergan v. The Queen (1963) Tas S R 158, at p.160;
Broadhurst v. The Queen (1964) AC, at p.457.). A lie may be told
out of panic, to escape an unjust accusation, to protect some other
person or to avoid a consequence extraneous to the offence. The jury
should be told that, if they accept that a reason of that kind is the
explanation for the lie, they cannot regard it as an admission. It
should be recognized that there is a risk that, if the jury are invited
to consider a lie told by an accused, they will reason that he lied
simply because he is guilty unless they are appropriately instructed
with respect to these matters. And in many cases where there appears
to be a departure from the truth it may not be possible to say that a
deliberate lie has been told. The accused may be confused. He may not
recollect something which, upon his memory being jolted in
cross-examination, he subsequently does recollect.
16. If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must
be established otherwise than through the evidence of the witness
whose evidence is to be corroborated. If a witness required to be
corroborated is believed in preference to the accused and this alone
establishes the lie on the part of the accused, reliance upon the lie
for corroboration would amount to the witness corroborating himself.
That is a contradiction in terms.
17. One troubling aspect of the direction given by the trial judge in this case is that it is difficult, if not impossible, to regard the appellant's evidence-in-chief as involving a deliberate lie. True
it is that towards the end of his cross-examination, the appellant
indicated a knowledge of some particular events in the van which had
not been mentioned in his evidence-in-chief. But that seems to have
been the result of the questions asked. Certainly, questions directed
to beating, bashing or the striking of blows, as asked in his
evidence-in-chief, do not necessarily invite the same answer as does
a question about touching, as asked in the last part of his
cross-examination. And the acknowledgment by the appellant in that
last part of his cross-examination that he saw Wallace touch and
push Williams is the only matter that, we think, is even arguably
inconsistent with the appellant's account that he deliberately
refrained from ascertaining what was going on and, thus, did not know
who said or did what.
18. Even if the matter is approached on the basis that the answers given by the appellant during his cross-examination revealed that he
lied in his evidence-in-chief, the lie thus revealed was not a lie
with any probative value. The lie, if it was one, was not about the
occurrence of the beatings and acts of indecency between Williams and
other prisoners in the van, but about precisely what the appellant saw
and heard of those events and his knowledge as to who participated in
them and in what way. If the appellant had falsely denied that the
events about which he was asked had occurred, that might have amounted
to a lie about a material issue. And because the prosecution would
appear to have relied upon the violent treatment of the complainant by
others as the means by which the appellant procured the complainant's
consent to the act of gross indecency, the appellant's knowledge of
that violence may have been a material issue. But the matter was not
put by the trial judge in this way. As it was put, the answers given
by the appellant amounted at most to a lie about the extent of his
observation or recollection and that was something that went to his
credit and nothing else.
19. Furthermore, the reluctance of the appellant to recall any more than he was compelled to do in cross-examination occurred in a situation in which the appellant had been in custody and did not wish
to inculpate others who were in custody with him - to be a "dog" in
prison terminology. That was not questioned by the prosecution as a
motive for withholding the truth, indeed the prosecution suggested it.
Whilst in many cases it must be a question for the jury whether a lie
was told because the truth was perceived to be inconsistent with
innocence or for some other reason, if it was established that there
was a deliberate lie in this case about a material matter (and we do
not think that it was), the innocent explanation for that lie was so
plausible that the lie could not have been probative of guilt. Quite
apart from our concerns about the existence of the lie and its
materiality, this should have prevented the trial judge from
concluding that the telling of the lie was capable of amounting to
corroboration of the complainant's evidence.
20. On a proper analysis of the evidence, the appellant denied neither the occurrence of the events in the van nor his knowledge of the
nature of those events. His cross-examination was not directed to
those matters. The most that was established by his cross-examination
was that, contrary to his evidence-in-chief that he turned away and
did not look to see what was going on, on a few occasions he did look
around and, on one occasion, saw Wallace push Williams and, at or
about the same time, heard thumps or slaps.
21. The precise details of what the appellant saw and heard and the identity of those who participated in particular events had no
significance at all in relation to what was alleged against him.
Because the lie went only to those matters, it was not capable of
revealing anything of the events constituting or bearing on the
offence. More particularly, it was not capable of revealing anything
of the appellant's knowledge or state of mind with respect to those
events.
22. In assessing the weight to be given to the appellant's testimony vis-a-vis that of Williams, the jury was, of course, fully entitled
to take account of any reluctance on the part of the appellant to
answer questions responsively and of any variations or perceived
inconsistencies between his answers. But they should not have been
invited to use the evidence of the appellant either as independent
evidence of guilt or as evidence corroborating the account given by
Williams. In the circumstances, there was a serious miscarriage of
justice. The appeal must be allowed and the conviction quashed.
The appellant has served the term of imprisonment to which he was
sentenced (the non-parole period having expired at the time of the
hearing of the appeal) and there is no occasion for a retrial.
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