1155. This reflects the accumulated wisdom and experience of the common law that witnesses may lie about some things and yet tell the truth about others, and the tribunal hearing the evidence is best placed to fix upon the truth. …
138 Another Full Court (Wigney, Wheelahan and Abraham JJ) in Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 recently made the same point (at [272]) as follows:
… People sometimes tell lies when giving evidence. What is significant is not the mere fact of the untruthfulness, but its relevance to the issues in dispute. A finding that a witness has lied about a matter need not lead to the rejection of all of the evidence of that witness, but may affect the degree of satisfaction of the existence or otherwise of a fact in issue to which the witness's evidence was directed. …
E.9Implied Admissions and "Consciousness of Guilt"
139 Given, as I will explain, the two principal witnesses in the justification case told lies during their evidence and in the making of out-of-court representations, the final matter to which I wish to draw attention is how these lies can be used in the fact-finding process.
140 Ms Higgins is not a party, and although any lies told by her will be central to my assessment of her creditworthiness (and hence reliability), the position of Mr Lehrmann, as a party and as someone who gave evidence contrary to the evidence adduced by the onus-bearing party, needs separate examination.
141 Recently, as part of the Full Court in Kim v Wang [2023] FCAFC 115; (2023) 411 ALR 402, I referred (at 428 [150]) to the decision of the High Court in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2010) 243 CLR 361 (at 384–385 [63]), where Heydon, Crennan and Bell JJ relevantly explained that when a party calls testimony known to be false, this conduct can amount to an implied admission or circumstantial evidence permitting an adverse inference, and I then (at 428–429 [151]) observed as follows:
Recently, in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555, Besanko J addressed the circumstances in which lies can give rise to a finding of a consciousness of guilt or the making of an implied admission and described them as "complex and highly contentious" (at [197]). In summarising the authorities, his Honour observed (at [205]) that a court must "be cautious before treating a lie as an implied admission or evidence of a consciousness of guilt" and, among other things, should bear in mind there may be reasons for the telling of a lie apart from a realisation of guilt: Edwards v The Queen (1993) 178 CLR 193 (at 211 per Deane, Dawson and Gaudron JJ).
142 The concept derives from the criminal law and forms part of the more general principle that the Crown can rely upon an accused's post-offence conduct as evidence of a consciousness of guilt: this could be a lie told in or out-of-court or by other conduct, including suborning
