Lies and videotapes

For several years, consciousness of guilt has posed serious problems for Victorian trial judges. While the theory behind consciousness of guilt is arguably just common sense (a person who lies about important matters or engages in other incriminating conduct, like attempting to flee the State after an alleged offence may be more likely to be guilty of that offence) the reasons for the problems numerous and arguably a predictable result of the current state of the law:

• The directions required are long and complex, requiring precise identification of each separate piece of evidence and requires the judge to suggest other explanations for the lie or other evidence.
• The Court of Appeal has been incredibly vigilant for the slightest slip
• Prosecutors, concerned about the directions leaving the jury confused or considering the issue too hard and just setting the evidence to one side, may eschew reliance on consciousness of guilt reasoning
• Defendants, concerned that extensive directions on the topic would give it unwarranted prominence, encourage prosecutors and judges to eschew reliance on full consciousness of guilt directions

Johnstone v R [2011] VSCA 60 is then merely the latest in the long line of cases where consciousness of guilt evidence has brought a trial undone.