The Principles in Browne v Dunn
195 The principles in Browne v Dunn (1893) 6 R 67 (HL) (Browne v Dunn) are discussed in my reasons in Roberts-Smith v Fairfax Media Publications Pty Limited (No 36) [2022] FCA 578 (Roberts-Smith (No 36)) in connection with certain evidence given by Person 5. I will not repeat that discussion. It is sufficient to note that the most significant example of a failure to comply with the principles in Browne v Dunn occurred in the case of Person 38 and his evidence in relation to events on the mission to W108. That failure is discussed in Section 2 of this Part which deals with the mission to W108.
Lies as Evidence of a Consciousness of Guilt
196 Lies are clearly relevant to credit, but in some circumstances may also be evidence of a consciousness of guilt. The respondents identified a number of lies by the applicant which they contend are not only relevant to credit, but also are evidence of a consciousness of guilt. Those lies mainly related to the missions to W108, Darwan and Chinartu respectively. At this point, I will simply identify the relevant principles.
197 The circumstances in which lies by a party give rise to a finding of a consciousness of guilt or the making of an implied admission can be complex and highly contentious. The principles applied in a civil case are similar to those applied in a criminal case (FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1 at [92] per Crennan and Bell JJ).
198 The circumstances in which a lie may be capable of providing corroboration or independent proof of guilt were considered in Reg v Lucas (Ruth) [1981] QB 720 (Reg v Lucas (Ruth)) at 724 per Lord Lane CJ and Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 (Edwards).
199 The matters that must be satisfied before a lie can be considered to constitute corroboration in accordance with Reg v Lucas (Ruth) are that the lie must: (1) be deliberate; (2) relate to a material issue; (3) spring from "a realisation of guilt and a fear of the truth"; and (4) be clearly shown to be lies by evidence other than that to be corroborated.
200 In the context of a discussion which includes references to corroboration, it should be noted that s 164 of the Evidence Act abolishes all pre-existing corroboration requirements. In other words, it is not necessary as a matter of law that evidence on which a party relies be corroborated.
