witnesses or absconding to avoid arrest: McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227 (at 233 [26] per Latham J, Hislop J and Whealy JA agreeing). A good example is seen in Pollard v R [2011] VSCA 95; (2011) 31 VR 416, where the evidence of the accused hiding a mobile phone was properly admitted as part of the Crown's circumstantial case.
143 When it comes to "Edwards lies" as post-offence conduct, as is usefully explained by the Judicial College of Victoria in Pt 4.6 of its Victorian Criminal Charge Book (which deals with "Incriminating Conduct (Post Offence Lies and Conduct)") (at [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 and the jury was required to consider the following matters before using such lies as evidence of an implied admission:
- (1) the lie was deliberate;
- (2) the lie related to a material issue;
- (3) the telling of the lie showed knowledge of the offence and was told because the truth would implicate the accused; and
- (4) there was no other explanation for the telling of the lie consistent with innocence (see R v Edwards (1993) 178 CLR 193; R v Renzella [1997] 2 VR 88).
144 But there is a need for adaption of the principles explained in these criminal law authorities in a civil case. In the appeal in Australia's longest running defamation case, Beazley, Giles and Santow JJA in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 comprehensively dealt with admissions by conduct (at [78]–[88]). In doing so, the Court of Appeal referred to the fourth of the matters noted above and observed the concept that no other rational inference may be drawn is a concept of the criminal law, necessitated by the standard of proof of beyond reasonable doubt. The Court of Appeal went on to explain that in a civil case, it is sufficient for "a lie to be accepted as an admission of guilt, if that is the more probable inference to be drawn" (at [88]). I respectfully agree that such an approach is not only appropriate, but necessary to accommodate the differing standard of proof.
145 How a lie can be used in assessing the reliability of the accounts given by Mr Lehrmann or Ms Higgins is straightforward. What I am presently concerned with is how an identified lie of Mr Lehrmann can and should be used to lend weight to the other evidence said to support the satisfaction of the onus of proof by the respondents. I will return below in Section H.2 to implied admissions and simply note for present purposes that the identification and use of
