201 In Edwards, Deane, Dawson and Gaudron JJ, in addressing a submission that the second and third elements of the test in Reg v Lucas (Ruth) involved reasoning which is circular, said the following (at 210):
There is, however, a difficulty with the bare requirements in R v Lucas (Ruth) that a lie must be material and that it must be told from a consciousness of guilt. Again it is convenient to confine ourselves to that last requirement. A bare direction that consciousness of guilt is required does not provide sufficient guidance as to what matters indicate its presence. Unexplained, such a direction allows the jury to decide, in the light of all the evidence, that a lie was told with a consciousness of guilt and then to use that finding to corroborate some part of the evidence that led to the finding of a consciousness of guilt.
The plurality went on to say that in court, as well as out of court, lies may amount to an admission against interest so as to constitute corroborative evidence or independent evidence tending to establish guilt (at 208–209; see also R v Watt (1905) 20 Cox CC 852 at 853; R v Liddy [2002] SASC 19; (2002) 81 SASR 22 at [243] per Mulligan J).
202 The decision of the Court of Appeal of New South Wales in Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 is instructive in terms of the use of lies as evidence of a consciousness of guilt in civil cases. After reviewing a number of authorities, the Court said (at [87]–[88]):
87 The authorities to which we have just referred are criminal ones. In R v Liddy, Mullighan J said at para 242-243:
It is unnecessary to set out the circumstances in which a deliberate lie told by an accused person may amount to positive evidence of guilt as opposed to adversely reflecting upon the accused's credibility. The telling of relevant lies is a piece of circumstantial evidence from which an adverse inference of guilt may be drawn if the lie is told out of a consciousness of guilt and no other rational inference may be drawn.
88 The concept that "no other rational inference may be drawn" is a concept of the criminal law, necessitated by the standard of proof beyond reasonable doubt. In a civil case, it is sufficient in our view for a lie to be accepted as an admission of guilt, if that is the more probable inference to be drawn. In this regard we adopt the like approach taken by the trial judge to the adoption of the knowledge test in Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 (to which we come later in these reasons) to the civil sphere. That adoption is not only appropriate but necessary to accommodate the differing standard of proof.
203 In R v Boscaino [2020] QCA 275, Sofronoff P (with whom Morrison JA and Brown J agreed) addressed the way in which lies may be used beyond credit and said (at [30]):
The circumstantial evidence in this case was constituted by so-called "post-offence conduct" from which the jury was invited to draw an inference of guilt of murder. Sometimes this evidence is called evidence of "consciousness of guilt" and sometimes
