The university of queensland legal research series

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‘Hoist with his own petard’? Guilty lies and ironic inferences in criminal proof

(Published in Michael Freeman (ed) (2001) 54 Current Legal Problems 377-413)

David Hamer*

Introduction 2

1. Complexity and fragility 4

2. Ironical allure 9

3. Circularities 15

3.1 Infinite regression 16

3.2 Corroboration circularity 17

3.3 The presumption of guilt? 17

3.4 The simple denial 19

3.5 Lies on the central issue 23

Conclusion 28

‘Hoist with his own petard’? Guilty lies and ironic inferences in criminal proof

David Hamer

The prosecution turns, as it nowadays so often does, to the theory that the accused manifested consciousness of her guilt by telling lies about what happened. In practical terms, what this seems to mean in a case like this is that, having examined the accused’s statements once in search of damaging admissions, it is necessary to examine them a second time with the idea in mind that any exculpatory matter they contain may really be evidence not of her innocence but of carefully concealed guilt.

− Justice McPherson of the Queensland Court of Criminal Appeal1


The criminal trial is adversarial. The prosecution necessarily advances a different position to the defendant. The defendant may for example say, ‘I was at home with my wife at the time the robbery was committed.’2 At a minimum, the prosecution will argue that this statement is a lie. The prosecution may go further, claiming that the lie discredits other of the defendant’s statements – the ‘credibility lie’ argument. Or the prosecution may go further still and argue that the lie was told in order to conceal the defendant’s guilt. The defendant’s ‘guilty lie’ is proof of their guilt. This article is concerned with the logical limits of the guilty-lie inference.
The early High Court of Australia decision, Eade,3 provides a good illustration of the guilty-lie inference. The defendant had been convicted of indecently assaulting a five-year-old girl.4 The prosecution primarily relied on complainant’s testimony, unsworn on account of her age. She told the Court that, at the defendant’s request, she had bought two pies for him.5 When she delivered the pies to the defendant he pulled her into the house, pushed her on to the couch, and indecently assaulted her. According the law of the time, the defendant could not be convicted on the basis of the complainant’s unsworn testimony unless it was corroborated.6 Ironically, the defendant was the source of the necessary corroboration. When confronted with the child, the defendant had denied all knowledge of her visit to his house with the pies. However, pies purchased by the child were found in the defendant’s home, strongly suggesting that the visit had taken place.7 The High Court held that it was open to the jury to find that the defendant had lied about the child’s visit because he was ‘unable to account for [it] in any way consistent with his innocence’.8 Had the defendant admitted the child’s visit he would have been immune from prosecution. He was ‘hoist with his own petard’.
Over the last decade, the criminal appeal courts in England, Victoria and other common law jurisdictions have faced an avalanche of appeals concerning the guilty-lie inference. That the inference is the source of many puzzles should not be surprising. The inference has a complex ironical structure: the defendant’s exculpatory statement is given inculpatory effect. In this article I draw upon ironical concepts to explore the conditions governing its valid operation.
In the first part of the article, I break the guilty-lie inference down into its several logical steps, revealing its complexity and fragility. However, these aspects appear not to be appreciated by juries. On the contrary, many authorities comment on the need to direct carefully the jury as to the possible pitfalls of the inference. In Part 2 of the article I suggest that this may be due to the allure of irony.9 By drawing the inference, the juror appreciates an irony, and enjoys the associated feelings of superiority and cleverness,.
As in all irony, the inference involves a ‘confrontation or juxtaposition of incompatibles’.10 Where an irony is clear, the literal interpretation can readily be rejected in favour of its unspoken opposite. However, such resolution is not always available. Some ironies ‘take the form of paradoxes, dilemmas, or what we call “impossible situations”’.11 In Part 3 I seek to lay down some guidelines to deal with the logical doubts that have recently been raised with the guilty-lie inference.

1. Complexity and fragility

It is regrettable that a mystique seems to be developing in New Zealand about lies in criminal cases. The matter is not really complicated.

− Justice Cooke of the New Zealand Court of Appeal12

In recent years the appeal courts in England and other jurisdictions have bemoaned the ‘epidemic’13 of appeals concerning the guilty-lie inference. In response to this, in Victoria, prosecutors have developed a ‘reluctance … to treat material lies as evidence of guilt.’14 Ironically this development may benefit both sides.15 It is to the defendant’s advantage, since ‘it deprives the prosecution of a potent weapon in its armoury’,16 but the prosecution also benefits, because ‘the jury is likely to attribute [to the inference] the evidential impact which they think it deserves and, in the absence of adequate direction, the accused is at risk of being disadvantaged’.17 However, the Victorian Court of Criminal Appeal describes it as ‘an unfortunate trend’.18
Courts have expressed frustration with the number of appeals generated by the inference, pleading its ‘essential simplicity’.19 However appeal courts should take some of the blame. In Chan20 Brooking JA made ironic reference to the Court’s earlier decision in Renzella:21

[T]he Court, while deploring that a mystique seemed to be developing about lies in criminal cases, nonetheless found it necessary to proceed to lay down what have in later cases been called twelve propositions but are in fact twelve paragraphs containing many more propositions than that.22

But declarations as to the simplicity of the inference verge on the disingenuous. While Brooking JA has suggested that the inference is a ‘very old and simple one, founded on common sense’,23 the earlier authorities are in fact difficult to reconcile and ambiguous.24 In 1949, the Privy Council in Tumahole Bereng25 appeared to be hedging its bets, indicating

[The accused’s] failure to give evidence or the giving of false evidence … may bear against an accused and assist in his conviction if there is other material sufficient to sustain a verdict against him. But if the other material is insufficient either in its quality or extent they cannot be used as a makeweight.

This seems to place the prosecution in a catch-22. The defendant’s lies may be used to support an inference of guilt only if there is sufficient other evidence to secure a conviction. But if the prosecution had sufficient other evidence, the inference ‘would not be needed at all’.26
The guilty-lie inference is a complex one27 involving, on the most basic analysis, two steps.28 First, the defendant must be found to have lied, and secondly, the lie must be found to have been motivated by the defendant’s consciousness of guilt. These two steps can be broken down further.29 The conclusion that the defendant told a lie involves findings that (1) the defendant made the statement; (2) the statement was false; and (3) the falsity was deliberate. Moreover, it is one thing to conclude (4) that the lie had no innocent explanation, and was motivated by a consciousness of guilt. But the further question arises (5) whether the was defendant conscious of guilt of the charged offence or some other misdeed. And then, (6) consciousness of guilt can be distinguished from actual guilt.
The inference is like a chain.30 If any of these six links is broken, the entire inference fails. In fact, focusing for the moment on the second link, ‘if not met with entire disbelief, [the defendant’s exculpatory statement may be] capable of raising sufficient doubt … to deprive the Crown of proof’. If there is a reasonable possibility that the defendant’s alibi is genuine then the defendant should be acquitted. This may explain the requirement, accepted by the English Court of Appeal that ‘the lie must be admitted or proved beyond reasonable doubt.’31
In Kerim32 doubt was expressed as to whether the telling of a lie was sufficiently proved. The defendant had been convicted of the rape of his 15-year-old stepdaughter in a hotel room while the two were travelling together. In corroboration of the complainant’s evidence, the prosecution relied on a number of matters, including a guilty lie. The defendant had said the complainant had slept ‘in’ her own single bed that night and not in the double bed with him. But there was prosecution evidence that the single bed appeared not to have been slept in. At trial the defendant explained the appearance of the single bed by suggesting that she had slept ‘on’ the bed, however, the trial judge directed the jury that the defendant’s statement could be used to corroborate the complainant’s evidence. The Court held that the trial judge was in error. ‘To be used as corroboration the statement in question must, among other things, be “clearly” shown to be a lie’.33 The Court indicated that, in this context, the terms ‘in’ and ‘on’ were interchangable, and consequently, ‘[t]here was no basis upon which a reasonable jury could conclude … that a clear lie had been told by the appellant’.34
Recently in Canada and Australia it has been doubted whether the criminal standard applies to the inference. The High Court of Australia in Edwards35 held:

Although guilt must ultimately be proved beyond 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.36

In addition to the requirement of falsity, the defendant’s statement should be found to be deliberately false for the guilty-lie inference to operate. In Ali Ahmed37 the defendant had been convicted of rape. In a police interview he denied even knowing the complainant, but at trial he admitted intercourse and argued that she had consented on this as on previous occasions. The trial judge warned the jury that ‘[i]t would not be corroboration if it was a lie uttered in your view because of panic, or because of misunderstanding of the question, or for a dozen other reasons.’ The Court of Appeal held that this caution was insufficient. There was strong evidence that the false statement was the result of confusion by the defendant. He was being interviewed through an interpreter and prior to the interview he had instructed his solicitor that he did know the complainant. ‘That factor alone should have alerted this very experienced judge to give a particularly careful direction.’
Most guilty-lie appeals have been concerned, not with the lie, but with the question whether the lie was motivated by the defendant’s guilt of the charged offence.38 In many cases the court should consider the possibility that the defendant lied to ‘bolster a true defence’.39 These explanations will have greater plausibility where the lie was told after the defendant had knowledge of being a suspect.

The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt.40

It might be argued that ‘[m]en who are conscious of right have nothing to fear … [T]he jury will protect them.’41 But this view ‘has more to do with some idealised vision of universal faith in the perfect administration of justice together with uniform levels of personal fortitude and resolution among those accused of crime, than with reality’.42 The defendant in Sharp43 may have lacked such levels of faith and fortitude. He had been charged with fraud in connection with the complainant’s investment of £10,000 in his business. Initially the defendant denied ever receiving a cheque for that amount from the complainant. At trial, however, the defendant admitted receiving the money but denied that it had been obtained by false representations. His counsel’s explanation for the initial lie was that the defendant had been ‘over-egging his defence’.44
On other occasions, the defendant may have lied to protect someone else. The defendant in Samuels,45 on being questioned in connection with drug offences, initially lied about the identity of another suspect and the link between that person and a briefcase full of drugs. The Court acknowledged that these lies could have been a ‘smokescreen … for the purpose of hiding [the defendant’s] guilt’.46 However, the lies ‘could just as well’ have been for the purpose of protecting the other person. The lies ‘were certainly relevant to his credibility but they were not capable of adding anything to the Crown evidence against him’.47
Even where the defendant’s lies display a consciousness of guilt, this may have no connection with the charges. In Holman48 the defendant, charged with blackmail and fraud offences, was shown to have given the police a false name. However, as the Court noted, ‘there were before the jury competing explanations for her use of a false name at that time and thereafter’ including her possible status as an illegal immigrant. These lies, therefore, ‘could have no possible bearing upon any issue arising’.
And where the consciousness of guilt has arisen out of the charged offences, this does not always equate with actual guilt. As the Court in Middleton49 noted,

[A] married man who has had consensual sexual intercourse with a woman and is then faced with an allegation of raping her will sometimes untruthfully deny the act of sexual intercourse at all, in order selfishly to avoid embarrassment to him of his wife’s discovery of his infidelity or, less selfishly perhaps, the consequent anguish that the knowledge may cause to her and their children.

In Dale50 the defendant had all the more reason to deny intercourse. The lie was told while he was being questioned in the presence of his wife.
It may be inappropriate to describe this kind of explanation for the lie as ‘innocent’. It has clear application to a murder case where the defendant presents the partial defence of provocation. In Richens,51 Taylor LCJ pointed out:

[A] man who has killed by reason of loss of self-control and therefore faces arrest, trial and possibly lengthy imprisonment, may have almost as strong a reason for attempting to conceal his deed and lie about his involvement as a man who has killed deliberately.52

As a generalisation, if the defendant admits some involvement in the events, and the issue is confined to the precise level of involvement or the mens rea, the operation of the guilty inference will be questionable.53 In Gionfriddo and Faure54 the Court held that the guilty-lie inference was open even though the defendant’s only defence was directed to intent, however, the Court’s reasoning is puzzling. The defendant had been convicted with his co-defendants of a number of offences in connection with a robbery. He initially denied knowing his co-defendants. At trial he conceded that he did know these men and his involvement in the robbery, but claimed that he had thought it was a fake robbery to support a fraudulent insurance claim. The Court held ‘it is not to the point that at the trial an accused chooses to contest guilt on issues to which an earlier told lie had no, or might not have had any, relevance.’55 But if the lie had no relevance to the issues at trial, then how could the inference be open?
Above, I considered the requirement that the falsity of the defendant’s statement be clearly established or proved beyond reasonable doubt, in order for the inference to operate. A number of authorities have also applied a higher standard of proof to the latter part of the inference: ‘only if the jury is sure that the defendant did not lie for an innocent reason can a lie support the prosecution case’.56 As noted above, in Canada and Australia, the highest courts have held that the criminal standard has application only to the ultimate question of guilt.57 Strictly speaking, if it is certain that the defendant has told a lie, the only requirement should be that the ‘lie is more consistent with guilt than with innocence’.58 Perhaps, however, a higher standard should be applied as a safeguard, in recognition of the complexity and fragility of the inference. ‘The possibilities of error at all points must be combined and assessed together.’59

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