Lies as consciousness of guilt

A consciousness of guilt direction is given when the prosecution argues that the defendant's conduct suggests that he or she knew himself to be guilty and conduct himself accordingly.

A consciousness of guilt direction is given when the prosecution argues that the defendant's conduct suggests that he or she knew himself to be guilty and conduct himself accordingly.

The simplest example is lies told by the accused. In order to be a lie in respect to which a direction should be given, “the accused must be lying because he is conscious that "if he tells the truth, the truth will convict him” (Edwards v R [1993] HCA 63). The lie in question “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”.

Other examples include setting up a false alibi (R v Smit & Ors [2004] NSWCCA 409) and illegal acts to permit the accused to stay on the run (Steer v R [2008] NSWCCA 295).

The jury needs to be directed “the accused should not be convicted merely because he has told a lie” and further that the jury “were required to exclude any alternative inference that was inconsistent with guilt”.

Edwards

Edwards v R [1993] HCA 63

“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"