4.6.1 - Bench Notes: Incriminating Conduct

4.6 – Incriminating Conduct (Post Offence Lies and Conduct)[1]

4.6.1 - Bench Notes: Incriminating Conduct

Effect of Jury Directions Act 2013 and Jury Directions Act 2015
Part 6 of the Jury Directions Act 2013 introduced significant changes to the law of incriminating conduct (previously known as ‘consciousness of guilt’).
First, the Act required the prosecution to give notice when evidence will be relied on as incriminating conduct.
Second, the Act introduced mandatory statutory directions that the judge must give when evidence is used as incriminating conduct, with additional directions which an accused may request. These directions replaced the common law Edwards direction.
Third, the Act reformed the direction which may be given to prevent the jury from misusing evidence as incriminating conduct (previously known as the Zoneff warning).
Under the Jury Directions Act 2015, these changes are preserved in Part 4, Division 1.

Table of Contents

Introduction 2

Effect of Jury Directions Act 2015 3

Leave to rely on evidence of incriminating conduct 4

Post-offence lies 4

Other post-offence behaviour 6

Need for warnings 11

When to give a section 21 direction and content of the direction 11

When to give a section 22 direction and content of the direction 16

When to give a section 23 direction and content of the direction 17

Post-offence lies as corroboration 19

Standard of proof 20

Introduction

1. Evidence of post-offence conduct falls into two broad categories: lies and other post-offence behaviour, including acts (such as flight) or omissions. Similar principles apply to both areas (Jury Directions Act 2015 s18; R v Renzella [1997] 2 VR 88 (CA); R v Boros [2002] VSCA 181).

2. Evidence of post-offence conduct can be used in only two ways:

i) To attack the accused’s credit where he or she gives an account either in a record of interview or in evidence; and/or

ii) As an implied admission of having committed an offence or an element of an offence or which negates a defence to an offence charged (Edwards v R (1993) 178 CLR 193; R v Akkus [2007] VSCA 287; R v GVV (2008) 20 VR 395).

3. Evidence of post-offence conduct can be used as an implied admission where the prosecution has given notice at least 28 days before the trial and the judge determines, on the whole of the evidence, that the evidence is reasonably capable of being used as an implied admission (Jury Directions Act 2015 s20).

4. There are a number of specific inferences that can be drawn from post-offence conduct. Depending on the conduct, the jury may be able to infer that, by committing the relevant conduct, the accused impliedly admitted that:

· S/he committed an offence charged or an alternative offence;

· S/he had committed part of the actus reus of an offence;

· S/he had a particular intention or mens rea when s/he engaged in particular conduct; or

· S/he was not acting in a way consistent with possible legal defences or justifications (e.g. self-defence, duress or sudden extraordinary emergency) (R v Ciantar (2006) 16 VR 26; R v Jakimov [2007] VSCA 9; Jury Directions Act 2015 s18).

5. Post-offence conduct which only provides support for other circumstantial evidence (such as post-offence conduct used to prove a sexual interest in the complainant, or as context evidence) is not an implied admission of a specific charge. The need for directions on such evidence will depend on how the evidence is relevant (see, e.g., PDI v R [2011] VSCA 446).

6. If evidence of post-offence conduct is only used to attack credit, the judge will generally not need to warn the jury about the use of that evidence unless defence counsel requests a direction to address the risk of the jury misusing the evidence as an implied admission (Jury Directions Act 2015 s23).

7. Previously, incriminating conduct was sometimes called evidence of “consciousness of guilt”. This term is potentially misleading, and its use with juries is discouraged (Zoneff v R (2000) 200 CLR 234 per Kirby J; R v Nguyen (2001) 118 A Crim R 479; R v Franklin (2001) 3 VR 9; R v Chang (2003) 7 VR 236).

Effect of Jury Directions Act 2015

8. Part 4, Division 1 of the Jury Directions Act 2015 reforms the law of post-offence conduct and abolishes the relevant common law. The Part applies to “conduct” and “incriminating conduct” which are defined as:

Conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

Incriminating conduct means conduct that amounts to an implied admission by the accused-

(a) of having committed an offence charged or an element of an offence charged; or

(b) which negates a defence to an offence charged (Jury Directions Act 2015 s18).

9. Under the Act, the prosecution must give notice of its intention to rely on evidence of conduct as evidence of incriminating conduct. The notice must be filed in court and served on the accused at least 28 days before the trial is listed to commence. The prosecution must also provide a copy of the relevant evidence (Jury Directions Act 2015 s19).

10. The prosecution must also obtain leave from the trial judge before it can rely on evidence as incriminating conduct (Jury Directions Act 2015 s20).

11. Division 1 of Part 4 of the Act also sets out the following three directions:

· A section 21 direction, to be given whenever evidence is relied on as incriminating conduct;

· A section 22 direction, which may be requested when evidence is relied on as incriminating conduct; and

· A section 23 direction, which may be requested when there is a risk of the jury improperly using evidence as incriminating conduct.

12. These provisions substantially replicate the former Part 6 of the Jury Directions Act 2013.

Leave to rely on evidence of incriminating conduct

13. The prosecution must not rely on evidence as incriminating conduct unless:

· At least 28 days before the trial is listed the commence, the prosecution has served on the accused and filed in court:

· A notice of intention to rely on evidence of incriminating conduct; and

· A copy of the evidence the prosecution intends to rely upon; and

· The trial judge finds that the evidence is reasonably capable of being used by the jury as evidence of incriminating conduct (Jury Directions Act 2015 ss19, 20).

14. When assessing whether the evidence is reasonably capable of being used as incriminating conduct, the judge must consider the case as a whole. It is not necessary to assess whether a piece of evidence, standing alone, is capable of being used as an implied admission (Jury Directions Act 2015 s20).

15. The following sections describe the circumstances in which lies and other post-offence conduct may be capable of being used as incriminating conduct.

16. If an innocent explanation of the post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, the judge must not allow the prosecution to rely on the conduct as evidence of incriminating conduct (R v Ciantar (2006) 16 VR 26).

Post-offence lies

17. One form of conduct which may be capable of constituting incriminating conduct is evidence that the accused told a lie (Edwards v R (1993) 178 CLR 193; R v Renzella [1997] 2 VR 88 (CA)).

18. Only post-offence lies which are told because the accused perceives that the truth is inconsistent with his or her innocence provide evidence probative of guilt (Edwards v R (1993) 178 CLR 193).

19. Where the accused tells the same lie on multiple occasions, the prosecution should consider how it proposes to treat those multiple lies. Where it relies only on one instance of the lie as incriminating conduct and other instances as going to credit, there is a risk that the jury will be unable to draw that distinction and will instead rely on all instances of the lie as incriminating conduct. In such cases, it may be necessary to refuse leave to rely on the lie as incriminating conduct (R v Robb [2015] VSC 481).

20. The probative value of a lie depends on its nature and the use sought to be made of it. It will rarely be strong enough to prove guilt directly. It will usually form part of the body of circumstantial evidence from which the jury is asked to infer the guilt of the accused (R v Nguyen (2001) 118 A Crim R 479; R v Ciantar (2006) 16 VR 26).

21. It is possible for a lie to be the only evidence of guilt – if the only reasonable inference to be drawn from the fact that the accused had lied was that s/he was confessing his/her guilt. However, this will be very rare (R v Zheng (1995) 83 A Crim R 572 (NSW CCA); Edwards v R (1993) 178 CLR 193).

22. Finding that the accused lied due to a belief in their own guilt is not the same as finding that s/he is guilty of the offence. It is merely one piece of evidence that can be used in the ultimate determination of guilt. The judge must tell the jury that even if they find that the accused believed that he or she committed the offence, the jury must still decide on the whole of the evidence whether the prosecution has proved the accused’s guilt beyond reasonable doubt (Jury Directions Act 2015 s21; R v Camilleri (2001) 119 A Crim R 106; [2001] VSCA 14; R v Franklin (2001) 3 VR 9).

23. In most cases lies are not used as an implied admission. Post-offence lies are generally used to discredit a witness, or simply in the context of providing contradictory evidence (Edwards v R (1993) 178 CLR 193; R v Renzella [1997] 2 VR 88 (CA)).

24. If lies are not used as an implied admission, it is a misdirection to tell the jury that they form part of the prosecution’s circumstantial case, or to prove the accused’s guilt (R v Renzella [1997] 2 VR 88 (CA); R v Benfield [1997] 2 VR 491 (CA); R v Russo (2004) 11 VR 1; R v Hartwick [2005] VSCA 264).

Relevant types of lies

25. At common law, untrue assertions and false denials are only capable of being used as an implied admission if the accused perceives that the truth is inconsistent with innocence. As a result, a lie could only be used as incriminating conduct if:

· The lie was deliberate;

· The lie related to a material issue;

· The telling of the lie showed knowledge of the offence and was told because the truth would implicate the accused;

· There was no other explanation for the telling of the lie consistent with innocence (R v Edwards (1993) 178 CLR 193; R v Renzella [1997] 2 VR 88).

26. At common law, the jury was required to consider these matters before using evidence as an implied admission. Under the Jury Directions Act 2015, it is likely that these matters will remain relevant to determining whether a judge should grant leave to allow the prosecution to rely on evidence as incriminating conduct (see Jury Directions Act 2015 s20).

27. There must be evidence that a statement is a lie before it can be left to the jury as a possible implied admission. If the only way to establish a statement as a lie is by finding the accused guilty (“bootstraps reasoning”), it cannot be used in this way (R v Laz [1998] 1 VR 453; R v Russo (2004) 11 VR 1; R v Sirillas [2006] VSCA 234).

28. A mere denial of guilt (which can only be shown to be a lie by proving the prosecution case) cannot be used as an implied admission (R v Gionfriddo and Faure (1989) 50 A Crim R 327 (Vic FC)).

29. For a lie to be used as an implied admission, it must relate to a material issue (Edwards v R (1993) 178 CLR 193; R v Gionfriddo and Faure (1989) 50 A Crim R 327 (Vic FC)).

30. The logic of incriminating conduct evidence depends on the accused's knowledge that he or she committed the offences and that the truth would implicate the accused. The fact that the applicant was not provided with the detail of the complainant’s allegations before the accused made a statement said to contain a lie does not inform the question of the applicant’s belief (Di Giorgio v R [2016] VSCA 335 at [28]).

31. If a lie is not inconsistent with the prosecution’s account of the alleged crime (i.e. even if the accused had told the truth, it would not have implicated him or her in the crime), it is unlikely to be material (see, e.g. R v Sutton (1986) 5 NSWLR 697).

32. A lie by an accused about why s/he failed to mention a fact can be used as an implied admission (R v Russo (2004) 11 VR 1).

33. It may be inappropriate to leave lies to the jury as evidence of guilt if the accused disavowed the lies within a short period of time (R v Lee [2005] VSC 167).

34. Pre-offence lies cannot be used as an implied admission. They can, however, be used as an implied admission of an intention to commit an offence, or that one is actually in the course of committing an offence (R v Appleby (1996) 88 A Crim R 456; R v Kotzmann [1999] 2 VR 123).