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4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

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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 replace 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).

The Jury Directions Act 2015 preserved these reforms, but moved the relevant provisions to Division 1 of Part 5.

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: 
    1. to attack the accused’s credit where he or she gives an account either in a record of interview or in evidence; and/or 
    2. as an implied admission of having committed an offence of 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:
  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. Division 1 of Part 4 of the Jury Directions Act 2015 preserve the changes previously introduced in Part 6 of the Jury Directions Act 2013, which reformed the law of post-offence conduct and abolished 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: 
  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: 
  14. A judge may dispense with the need to give notice of an intention to rely on evidence of incriminating conduct if the prosecution first becomes aware of the relevant conduct during the trial, the prosecution gives oral notice of its intention to rely on that conduct as incriminating conduct and it is in the interests of justice to dispense with the requirements (Jury Directions Act 2015 s20).
  15. One situation in which the prosecution might only become aware of the alleged conduct during the trial is where the prosecution invites the jury to draw an inference about the content of the accused’s instructions to counsel on the basis of the content of cross-examination. While it can be permissible to invite the jury to draw such an inference, a submission that the accused invented those instructions because the truth would implicate the accused is an invitation to treat the instructions as incriminating conduct. Such a submission requires compliance with the Post-offence conduct provisions of the Jury Directions Act 2015 (Ritchie v The Queen [2019] VSCA 202, [109]).
  16. 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). 
  17. The following sections describe the circumstances in which lies and other post-offence conduct may be capable of being used as incriminating conduct. 
  18. 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

  19. 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)). 
  20. 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). 
  21. 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).
  22. 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). 
  23. 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). 
  24. 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; R v Franklin (2001) 3 VR 9). 
  25. 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)).
  26. 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) 14 VR 125).

    Relevant types of lies

  27. 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: 
  28. 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).
  29. 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). 
  30. 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)). 
  31. 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)). 
  32. 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]).
  33. 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). 
  34. 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). 
  35. 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) 12 VR 249). 
  36. 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).

    Other post-offence behaviour

  37. Although lies have generally been given special treatment in the case law, they are just one instance of potentially incriminating conduct. Evidence of other post-offence behaviour, such as fleeing from the police or concealing evidence, is equally capable of being regarded as an implied admission (R v Gionfriddo and Faure (1989) 50 A Crim R 327 (Vic FC); R v Boros [2002] VSCA 181; R v McCullagh (No 2) [2005] VSCA 109).
  38. Some examples of other post-offence behaviour which have been used as evidence probative of guilt include:
  39. Where a person is alleged to have committed an offence as part of a group, conduct such as concealing evidence may be directly relevant to the accused’s participation in the group, without any obligation to use the evidence as an implied admission. The prosecution, the defence and the judge will need to consider whether the evidence is relevant as circumstantial evidence or as an implied admission and, if the prosecution does not seek to use the evidence as an implied admission, whether a direction is necessary under s23 about the risk of misuse (Lowe v R (2015) 48 VR 351 at [176] – [181]).
  40. As with lies, there is a distinction between cases where post-offence conduct such as flight has no probative value, and those where it is used as an implied admission (R v Chang (2003) 7 VR 236). 
  41. The principles that apply to the treatment of other forms of post-offence behaviour are generally the same as those that apply to lies (R v Renzella [1997] 2 VR 88 (CA); R v Nguyen (2001) 118 A Crim R 479; R v McCullagh (No 2) [2005] VSCA 109).

    Pretext conversation and incriminating conduct

  42. The “pretext conversation” has become a common technique for the investigation of certain offences, especially sexual offences. A “pretext conversation” occurs where the complainant confronts the accused with an allegation of the offending. The conversation is recorded by police, and the recording may be played in the trial.
  43. Where a pretext conversation produce evidence that meets the definition of incriminating conduct, the prosecution must give notice under Jury Directions Act 2015 s19 if it wishes to rely on the evidence for that purpose.
  44. Whether a pretext call meets the definition of incriminating conduct (“an implied admission by the accused of having committed an offence charged or an element of an offence charged…”) will often depend on the degree of specificity in the conversation. The evidence will most likely meet the definition where the accused demonstrates an awareness of the offences alleged, fails to deny the offending or makes a generalised admission in respect of multiple allegations (see, e.g. WA v McBride [2015] WASC 275; R v LAF [2015] QCA 130; R v MBV [2013] QCA 17; Christian v R [2012] NSWCCA 34).
  45. In contrast, where the call involves a specific allegation and a specific admission, it is more likely that statements in the pretext call will be treated as express admissions, rather than implied admissions (see, e.g. R v Cavalli [2010] QCA 343).
  46. Further, in some cases, the statements made in a pretext conversation will be non-specific and a jury cannot link those statements to any particular alleged offence. In those circumstances, the conversation may instead be relevant to support other circumstantial evidence, such as to prove a sexual interest in an individual complainant, or as context evidence. In those circumstances, the evidence will not be “incriminating conduct”, as defined in the Jury Directions Act 2015 (see, e.g., PDI v R [2011] VSCA 446; JWM v R [2014] NSWCCA 248; R v GVV (2008) 20 VR 395).
  47. The fact that the accused went to see a solicitor after a pretext conversation cannot be used as a piece of incriminating conduct, as that would involve impermissible speculation (Meyer v R [2018] VSCA 140 at [211]-[212]).
  48. In determining the status of statements made during pretext calls, the principles of silence in response to equal parties and inferring guilt from demeanour (discussed below) will often be relevant.

    Silence as incriminating conduct 

  49. When considering whether the accused’s silence in response to questioning can be used as an implied admission, a distinction is drawn between silence in response to people in authority and silence in response to equal parties.
  50. In addition to the principles discussed below, there may be cases where, in the ordinary course of human affairs, it would be reasonable to expect that a person would inform others about an exceptional event. In such circumstances, a failure to inform others may be treated as an incriminating conduct, even if the person is not asked about the event. For example, in Xypolitos v R (2014) 44 VR 423 the accused killed his stepson, destroyed the body and failed to inform his partner or the police. This was treated as incriminating conduct in relation to whether he killed his stepson in self-defence.

    Silence in response to people in authority 

  51. The jury may not use the accused’s silence in response to a person in authority as an implied admission (Evidence Act 2008 s89; R v Cuenco (2007) 16 VR 118; R v Barrett (2007) 16 VR 240; R v Russo (2004) 11 VR 1; R v Bruce [1998] VR 579; Petty v R (1991) 173 CLR 95). 
  52. It is therefore not open to a jury to infer that the accused had implicitly admitted his/her guilt from the fact that s/he selectively exercised his/her right to answer questions (R v Barrett (2007) 16 VR 240; R v Russo (2004) 11 VR 1). 
  53. However, where the accused gives a detailed account of events to the police, the jury may be able to infer from the conscious omission of certain details that the accused had implicitly admitted his/her guilt (R v Cuenco (2007) 16 VR 118; R v Russo (2004) 11 VR 1; De Marco 26/6/1997 CA Vic; Johnstone v R (2011) 31 VR 320).[1]
  54. Whether omissions of this nature can be used as incriminating conduct will depend on the other evidence in the case (R v Cuenco (2007) 16 VR 118; R v De Marco 26/6/1997 CA Vic CA; Johnstone v R (2011) 31 VR 320). 
  55. If evidence of an implied admission comes from a record of interview in which the accused has selectively answered questions, the judge should clearly direct the jury that while they may have regard to the answers given by the accused which have been identified as supporting the inference, they may not draw an inference from his or her “no comment” responses (see, e.g., R v Barrett (2007) 16 VR 240). 
  56. See Silence in Response to People in Authority for further information.

    Silence in response to equal parties

  57. There may be circumstances in which the jury can infer from the accused’s silence in response to a statement made by an equal party that s/he had implicitly admitted his/her guilt (Woon v R (1964) 109 CLR 529; R v Thomas [1970] VR 674; R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501). 
  58. The focus here is upon whether the accused’s silence, although not amounting to an admission by him or her of the specific facts stated in his or her presence, nevertheless demonstrated his or her guilt in some way (R v MMJ (2006) 166 A Crim R 501). 
  59. To infer that by remaining silent, the accused had implicitly admitted his/her guilt, the jury must find that: 
  60. See Silence in Response to Equal Parties for further information concerning the requirement that the statement called for a response, as well as a discussion of possible reasons for a person remaining silent in response to a statement made by an equal party.

    Inferring Guilt from Demeanour

  61. Although evidence of the accused’s demeanour or reactions to a certain event is theoretically capable of constituting an implied admission, it will be rare for a judge to leave such evidence before the jury on this basis. This type of evidence is very imprecise and unreliable, and subject to misinterpretation. It will also generally be equivocal and incapable of supporting an inference that the accused had implicitly admitted their guilt (R v Favata [2006] VSCA 44; R v Barrett (2007) 16 VR 240).
  62. If the accused’s demeanour is relied upon as evidence of an implied admission, additional directions about the dangers of drawing such an inference from demeanour may be necessary, including warning the jury: 

    Need for warnings

  63. There are three different types of directions that may be given in relation to post-offence conduct:
    1. a section 21 direction, telling the jury the conditions that must be satisfied before post-offence conduct can be treated as an implied admission;
    2. a section 22 direction, warning the jury about the dangers of using evidence as incriminating conduct;
    3. a section 23 direction, warning the jury to avoid improper use of post-offence conduct evidence which cannot be used as an implied admission (Jury Directions Act 2015 ss21-23).

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

  64. A section 21 direction must be given if the prosecution relies on evidence as “incriminating conduct” (Jury Directions Act 2015 s21).
  65. This direction is not subject to a request process. The judge must give the direction in any case where the prosecution relies on evidence as incriminating conduct (Jury Directions Act 2015 s21).
  66. As described above, the prosecution may only rely on evidence as “incriminating conduct” if it has given notice at least 28 days before the trial and the judge ruled that the evidence is reasonably capable of being used as “incriminating conduct” (Jury Directions Act 2015 s20).
  67. The prosecution must precisely identify the alleged lie(s) or conduct in the notice, and that the prosecution arguments conform to the bounds set out in the notice (Maeda v DPP (Cth) [2015] VSCA 367 at [78]).
  68. Where there is a gap or deficiency in the notice, the prosecution may seek leave to extend time for filing a notice under Jury Directions Act 2015 s8, and seek to file over a new incriminating conduct notice under section 19.
  69. If the evidence is not capable of being used as an implied admission, but there is a real risk that the jury might treat the evidence in that way, defence counsel may seek a section 23 warning (see below).

    If the prosecution does not seek to use evidence as ‘incriminating conduct’

  70. Section 21 of the Jury Directions Act 2015 is only engaged when the prosecution explicitly or expressly relies on the evidence as an implied admission. There is no scope for a judge to find that the prosecution has relied on evidence as incriminating conduct implicitly, despite the absence of a Notice (Lowe v R (2015) 48 VR 351)
  71. The judge must determine, at the time it is necessary to give directions, whether the prosecution has relied on evidence as incriminating conduct giving rise to implied admissions (Lowe v R (2015) 48 VR 351 at [144]).
  72. If the prosecution does not contend that post-offence conduct is evidence of an implied admission, a section 21 direction must not be given (Lowe v R (2015) 48 VR 351 at [142]).
  73. In determining whether the prosecution has relied on evidence as ‘incriminating conduct’ it is not important whether the term “consciousness of guilt” or “incriminating conduct” has been used by counsel in the trial. What is important is whether the process of reasoning towards guilt which the jury has been invited to adopt involves the use of post-offence lies or conduct as implied admissions (see R v Lees [2006] VSCA 115; Rossi v R [2012] VSCA 228; Lowe v R (2015) 48 VR 351).
  74. At common law, in some cases the judge was required to direct the jury on the use of evidence as an implied admission even if the prosecution did not rely on it for this purpose (R v Russo (2004) 11 VR 1). The Jury Directions Act 2015 has abolished this obligation (Jury Directions Act 2015 s24). There is no residual discretion to give a section 21 direction where the evidence has not been led as incriminating conduct. 
  75. If the judge is concerned about the risk of the jury using evidence as evidence of incriminating conduct even though the prosecution has not relied on the evidence for that purpose, a section 23 direction may be necessary (see R v Cuenco (2007) 16 VR 118; Zoneff v R (2000) 200 CLR 234; Dhanhoa v R (2003) 217 CLR 1).
  76. In some cases, the judge may need to intervene where the prosecution invites the jury to use evidence in a way that amounts to treating the evidence as incriminating conduct, even though it has not obtained leave to rely on evidence for that purpose (see R v Lees [2006] VSCA 115; R v Chang (2003) 7 VR 236). A judge may also need to consider giving a section 27 direction to neutralise the prosecution’s argument or otherwise discharge the jury.

    Content of a section 21 direction

  77. There are two limbs to a section 21 direction. Under the first limb, the judge must tell the jury that they can use the evidence to find that the accused believed that he or she:
    1. committed the offence charged;
    2. committed an element of the offence charged; or
    3. negated a defence to the offence charged;

      only if they find that:
      1. the conduct occurred; and
      2. the only reasonable explanation of the conduct is that the accused held that belief (Jury Directions Act 2015 s21(1)(a)).
  78. When deciding whether the conduct occurred and whether the only reasonable explanation is that the accused believed that s/he committed the offence charged or part of the offence charged, the jury must consider all of the evidence in the case (R v Ciantar (2006) 16 VR 26).
  79. The second limb of the direction warns the jury that even if they find that the accused believed that he or she committed the offence charged, 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).
  80. The second limb of the direction recognises that the accused may hold a mistaken belief in his or her own guilt, and that the role of the jury is to determine the accused’s guilt, and not merely the accused’s belief in his or her guilt.
  81. It is not necessary to use any particular form of words when giving the two limbs of the section 21 direction (Jury Directions Act 2015 s6).
  82. However, in Maeda v DPP (Cth), the Court of Appeal noted the need for care when departing from the statutory language, due to the risk that any factual questions posed may not satisfy the requirements of section 21 (Maeda v DPP (Cth) [2015] VSCA 367 at [85]).
  83. For example, in Saddik v The Queen, the judge had directed the jury, for the purpose of s 21(1)(a)(ii) that they must be satisfied that the only reasonable explanation for the conduct was that the accused thought it would tend to show that nothing improper had happened. The Court of Appeal held that this did not comply with s 21(1)(a)(ii). The judge should have told the jury to decide whether the accused believed he had indecently assaulted the complainant and performed the conduct to create an innocent explanation for his offending acts (Saddik v The Queen [2018] VSCA 249 at [154]).
  84. In addition, it is not appropriate for the judge to direct the jury that they can use the evidence in proof that the accused admitted guilt of some other offence. The direction must relate the evidence to an offence charged, the particular acts alleged and the way the prosecution seeks to use the evidence (Di Giorgio v R [2016] VSCA 335 at [38], [40], [56]).
  85. Section 21 removes the common law obligation to refer to each act or omission as part of the direction (Jury Directions Act 2015 s21; c.f. Edwards v R (1993) 178 CLR 193; R v McCullagh (No 2) [2005] VSCA 109; R v Ciantar (2006) 16 VR 26). However, it remains necessary for the prosecution to precisely identify the alleged lie(s) or conduct in the notice, and that the prosecution arguments conform to the bounds set out in the notice (Maeda v DPP (Cth) [2015] VSCA 367 at [78]).
  86. If the post-offence conduct includes both lies and other post-offence behaviour, the judge should make the jury aware that the direction applies to both (see R v Nguyen (2001) 118 A Crim R 479).
  87. If the post-offence conduct could be used as an implied admission in relation to a number of different counts, the judge should relate each item of conduct to the appropriate charge or charges, and the jury should be told to examine the evidence in support of each charge separately (R v Kalajdic [2005] VSCA 160; R v Finnan [2005] VSCA 151; R v Ciantar (2006) 16 VR 26).
  88. If a lie is to be used as corroboration, confirmation or support of another witness’s evidence, the jury must also be told that the accused’s statement must clearly be shown to be a lie by evidence other than that of the witness who is to be corroborated – i.e. by admission or by evidence from an independent witness (Edwards v R (1993) 178 CLR 193).
  89. Where the defence case involves a simple denial of all the conduct alleged, it may not be necessary to explain to the jury how the incriminating conduct evidence relates to any particular element or a particular charge (Davis v R [2016] VSCA 272 at [119]).

    Conduct motivated by consciousness of other offences

  90. In some cases, an issue may arise as to whether the accused committed the post-offence conduct due to a fear of being implicated in the offence for which the prosecution wishes to use the evidence of that conduct, or because s/he feared being implicated in a lesser included offence, a different offence on a multiple count presentment, or another offence disclosed by the evidence (“other offences”).
  91. Under the Jury Directions Act 2015, the definition of “incriminating conduct” refers to conduct that amounts to an implied admission of an “offence charged”, an element of an “offence charged” or which negates a defence to an “offence charged”. The term “offence charged” is defined as including alternative offences (Jury Directions Act 2015 s18).
  92. The judge must determine whether it is open for the jury to use an item of post-offence conduct to prove an element of a principal offence or any available alternative offence (see also R v Ciantar (2006) 16 VR 26).
  93. At common law, evidence which was equally consistent with two or more available offences, or was otherwise “intractably neutral”, could not be used as post-offence conduct. This requirement likely continues to apply under the Jury Directions Act 2015 (see R v Ciantar (2006) 16 VR 26; R v Jakimov [2007] VSCA 9; R v Cuenco (2007) 16 VR 118; R v Dickinson [2007] VSCA 111; Pollard v R (2011) 31 VR 416).
  94. Such cases will, however, be rare. In most cases, although the post-offence conduct may not be enough in itself to sustain an inference that the accused has impliedly admitted guilt of a particular offence rather than some other offence, when considered in the context of the evidence as a whole (e.g. evidence of the accused’s words and conduct before and during the offence, and other forensic evidence), it will be open to the jury to infer that the accused’s conduct was related to a particular offence (R v Ciantar (2006) 16 VR 26; R v Jakimov [2007] VSCA 9; Johnstone v R (2011) 31 VR 320; Brooks v R (2012) 36 VR 84).
  95. In determining whether the post-offence conduct is equally consistent with two or more possible offences, or otherwise intractably neutral, the judge must consider the conduct in the context of the evidence as a whole (R v Jakimov [2007] VSCA 9; R v Cuenco (2007) 16 VR 118; R v Dickinson [2007] VSCA 111; Pollard v R (2011) 31 VR 416).
  96. It will often be helpful to explain to the jury that reference to “the offence charged” is a convenient way of saying that the accused made an implied admission of the alleged wrongful conduct which constituted the offence charged, rather than an admission of a specific crime as it is known to the law (R v Ciantar (2006) 16 VR 26).

    Other explanations for the post-offence conduct

  97. Unlike at common law, a judge is not required to identify other reasons for having committed the conduct (compare Edwards v R (1993) 178 CLR 193; R v Ciantar (2006) 16 VR 26). 
  98. The judge is also not required to identify possible motivations, other than a consciousness of guilt, for committing the post-offence conduct (compare R v Nguyen [2005] VSCA 120).
  99. Other explanations may form part of a section 22 direction (see below).

    Identifying the post-offence conduct

  100. In charging the jury, the judge should take each offence left to the jury in turn, and by reference to that offence identify:
  101. When directing the jury about incriminating conduct, it is not necessary to refer to each act or omission (Jury Directions Act 2015 s21(2). Instead, the conduct may be described in general terms (c.f. R v Dang [2004] VSCA 38; R v Nguyen [2005] VSCA 120; Johnstone v R (2011) 31 VR 320. But see Ellis v R (2010) 30 VR 428). 
  102. A judge should not invite the jury to look for other post-offence conduct that could possibly be used as an implied admission (R v TY (2006) 12 VR 557; R v Cuenco (2007) 16 VR 118).
  103. The judge must clearly identify for the jury which evidence of post-offence conduct can be used as an implied admission, and which can only be used in relation to the accused’s credibility (R v Ray (2003) 57 NSWLR 616).
  104. If there are multiple charges, the trial judge must relate the relevant lies or other acts to the appropriate count or counts (R v Kalajdic [2005] VSCA 160; R v Redmond [2006] VSCA 75; R v Ciantar (2006) 16 VR 26).
  105. In such cases, the jury must be directed to consider the post-offence conduct in relation to each charge separately (R v Woolley (1989) 42 A Crim R 418 (Vic FC); R v Ciantar (2006) 16 VR 26).

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

  106. Where the judge gives or proposes to give a section 21 direction, the defence may seek a direction under Jury Directions Act 2015 s22 (a ‘section 22 direction’).
  107. . A section 22 direction tells the jury:
  108. This direction must be given if sought by the accused (unless there are good reasons for not giving the direction) or if there are substantial and compelling reasons to give the direction in the absence of a request (Jury Directions Act 2015 ss14, 16).
  109. To determine whether there are substantial and compelling reasons to give a direction in the absence of a request, the judge should consider the significance of the post-offence conduct evidence and the degree of risk posed by not giving a section 22 direction. See Directions Under the Jury Directions Act 2015 for more information on when directions are necessary. 
  110. . At common law, a trial judge was required to identify possible reasons why a person might behave in a way that makes the person look guilty, and should include any explanations raised by defence counsel in the list of possible alternatives (R v Kalajdic [2005] VSCA 160; R v Spero (2006) 13 VR 225; R v Ciantar (2006) 16 VR 26). It would be prudent to continue providing such information when giving a section 22 direction.
  111. If the explanations advanced by the defence are the most cogent possible alternatives, there is no need to advance additional explanations (R v Finnan [2005] VSCA 151). 
  112. In cases where it is possible that the accused committed the post-offence conduct to distance him or herself from a different offence than that which the jury is considering (the “offence charged”)[2], the jury should be alerted to this possibility. They should be told that before they can use the post-offence conduct as evidence of guilt of the offence charged, they must be satisfied, having regard to all the evidence, that the desire not to be implicated in a different offence does not provide a possible reasonable explanation for the conduct. The judge must make it clear to the jury that the implied admission must be of the offence charged, rather than some other wrongdoing or unlawful behaviour (R v Ciantar (2006) 16 VR 26; R v Barrett (2007) 16 VR 240; R v Smart [2010] VSCA 33; Johnstone v R (2011) 31 VR 320. But see Al-Assadi v R [2011] VSCA 111; Brooks v R (2012) 36 VR 84).
  113. It is not necessary for the judge to refer to lesser included offences which have not been left to the jury as providing a possible alternative explanation. The directions to be given must depend on the issues in the case, and a lesser included offence is not in issue unless it is left to the jury (R v Ciantar (2006) 16 VR 26. See also R v Martin [2006] VSCA 299).

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

  114. If the prosecution does not use evidence of post-offence conduct as an implied admission, defence counsel can seek a direction under Jury Directions Act 2015 s23 (a ‘section 23 direction’).
  115. This direction tells the jury that:
  116. This direction replaces the common law Zoneff warning and is designed to address the risk of the jury misusing evidence as incriminating conduct.
  117. A section 23 direction is only necessary if sought by the accused, or if the judge considers there are substantial and compelling reasons to give the direction in the absence of a request (Jury Directions Act 2015 ss14, 16).
  118. The judge should ask defence counsel whether he or she seeks a section 23 direction where the prosecution leads evidence of post-offence conduct and does not seek to use that evidence as incriminating conduct.
  119. To determine whether there are substantial and compelling reasons to give a direction in the absence of a request, the judge should consider the significance of the post-offence conduct evidence and the degree of risk posed by not giving a section 23 direction. See Directions Under the Jury Directions Act 2015 for more information on when directions are necessary.
  120. At common law, the need for a direction about the misuse of evidence as incriminating conduct depended on factors such as the nature of the evidence which is said to require the direction, the purpose for which it is tendered, the use the prosecution makes of it, the existence of rational explanations for the conduct other than a consciousness of guilt, and the nature of counsel’s addresses on the issue (see, e.g., R v Dupas [2001] VSCA 109; R v GJ [2008] VSCA 222; AE v R [2011] VSCA 168). Similar factors will inform the decision of whether there is a need for a section 23 direction (see Lowe v R (2015) 48 VR 351).
  121. Even if the content of a particular lie is not highly probative, a section 23 direction may be required if there is little other evidence that supports the prosecution case. In such circumstances the mere fact that the accused told a lie may be treated as significant by the jury (AE v R [2011] VSCA 168).
  122. It may be prudent to give a section 23 direction even if there is only a small risk that the jury will use the accused’s lies or conduct as an implied admission, as this will remove all danger of the jury engaging in an impermissible reasoning process (see, e.g., R v Brdarovksi [2006] VSCA 231). However, in Dhanhoa v R (2003) 217 CLR 1, Gleeson CJ and Hayne J warned against giving this kind of direction too readily. This warning should be taken into consideration when deciding whether or not to give such a direction (R v Mitchell [2006] VSCA 289. See also Lowe v R (2015) 48 VR 351).
  123. A section 23 direction is not required simply because there is a risk that a jury may treat the accused as a liar and thereby conclude that s/he is guilty. This will happen in most cases – juries will assess the evidence, and conclude that the accused is a liar at the same time as determining that s/he is guilty beyond reasonable doubt. A section 23 direction is only required if the jury is likely first to resolve that the accused is a liar, and then to conclude that, because s/he is a liar, s/he has committed the offence (R v Erdei [1998] 2 VR 606 (CA)).
  124. If it is alleged that the accused told a number of lies, it may be inadvisable to give a section 23 direction in relation to only one of those lies. Such a direction would likely invite the jury to improperly consider what use should be made of the accused’s other lies. Depending on the circumstances, the judge should either give a section 23 direction in relation to lies in general, or not give such a direction at all (see, e.g., R v Mitchell [2006] VSCA 289).

    Post-offence lies as corroboration

  125. A lie can provide corroboration of the evidence of another witness if it is capable of supporting an inference that the evidence of the witness is probably correct. This can occur only if the jury can infer that the telling of the lie was an implied admission (R v Heyde (1990) 20 NSWLR 234 (CCA)).
  126. Great care must be taken in using lies as corroboration – it is fraught with the risk of a miscarriage of justice (R v Sutton (1986) 5 NSWLR 697; R v Heyde (1990) 20 NSWLR 234 (CCA); R v De Lam (1999) 108 A Crim R 440).
  127. If the prosecution seeks to rely on a lie to provide corroboration, the usual criteria for using a lie as an implied admission (see above) must be established. The trial judge must also determine whether the lie is capable of providing corroboration. If so, the question of whether it does corroborate the evidence of a witness is to be left to the jury (R v Heyde (1990) 20 NSWLR 234 (CCA)).
  128. In determining whether a lie is capable of providing corroboration, the trial judge must (R v Heyde (1990) 20 NSWLR 234 (CCA); Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410):
    1. decide whether it could be held to be a deliberate lie; and
    2. decide whether there is evidence of conduct by the accused from which an inference can be drawn, which supports the evidence of the witness whom it is sought to corroborate in a material particular. A deliberate lie will be capable of doing this if it is rationally open to the jury to draw an inference that it was told because the accused perceived that the truth was inconsistent with his or her innocence.
  129. Lies cannot be treated as corroborative of the evidence of a witness if it is necessary to rely on the evidence of that witness to establish the falsity of what the accused has said. In such circumstances the witness would be corroborating him or herself (Edwards v R (1993) 178 CLR 193; Green v R (1999) 161 ALR 648; R v Ciantar (2006) 16 VR 26).
  130. There are three ways in which a lie can be sufficiently proven so that it is capable of amounting to corroboration (R v Heyde (1990) 20 NSWLR 234 (CCA); R v Russo (2004) 11 VR 1):
    1. if conflicting evidence is given by a witness other than the one whose evidence is to be corroborated;
    2. if conflicting evidence is given by the accused (either directly, or due to internal inconsistencies in his or her evidence); or
    3. if the lie is seen to be inherently improbable.
  131. It will only be in rare cases that a lie is capable of affording corroboration. In many cases it will not be so capable, due to factors such as it not being possible to infer that a deliberate lie was told; the lie not relating to a material issue; or the inference not being open that the lie was an implied admission (R v Heyde (1990) 20 NSWLR 234 (CCA)).
  132. When discussing the issue of corroboration with the jury, use of the language of “confirmation” or “support” rather than “corroboration” may be appropriate, depending on the use to which the evidence is being put (R v Miletic [1997] 1 VR 593; R v Benfield [1997] 2 VR 491 (CA)).

    Standard of proof

  133. Jury Directions Act 2015 s61 specifies that unless there is an enactment to the contrary, the only matters that need to be proved beyond reasonable doubt are the elements of the offence and the absence of any relevant defences. The common law obligation to direct the jury not to use incriminating conduct evidence unless satisfied that the evidence is "incriminating conduct" beyond reasonable doubt has been abolished (see also Jury Directions Act 2015 s62).
  134. In rare cases, where evidence of post-offence conduct is the only evidence of guilt, the judge may refer to the evidence of incriminating conduct and direct the jury that it must be satisfied that the evidence proves the elements of the offence beyond reasonable doubt (see Jury Directions Act 2015 s61 Examples).

    Notes

[1] As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s89.

[2] I.e. Trials involving a one count indictment with lesser included offences; trials involving multiple count indictment; or cases where the evidence adduced to prove a particular charge discloses the possible commission of other offences.

 

Last updated: 23 October 2019

In This Section

4.6.1 - Charge: Lies as Incriminating Conduct (Section 21 direction)

4.6.2 - Charge: Other Conduct as Incriminating Conduct (Section 21 direction)

4.6.3 - Charge: Additional Direction on Incriminating Conduct (Section 22 direction)

4.6.4 - Charge: Avoiding Risk of Improper Use of Conduct Evidence (Section 23 direction)

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings