9 The adoption of the criterion that the inference of a consciousness of guilt must be a compelling and prominent one will not unfairly confine the prosecution case. I am mindful of the observations made in both R v Chang[9] and R v Camilleri[10] and by other appellate courts, that trial judges should not be unduly reluctant to permit the prosecution to rely on lies of this character.
Circularity of reasoning - the bootstrap argument
10 It was submitted by counsel for most of the accused that it was impermissible for the prosecution to use the alleged lies as supporting an inference of guilt as this would involve a boot straps argument as the prosecution would have to prove the very facts upon which the guilt of the accused depended.
11 Counsel for Cuong Lam argued that the prosecution would have to establish that the accused was at the river and performed the acts upon which the prosecution relied to establish guilt before the jury could be satisfied that the accused had told a lie borne from a consciousness of guilt. To reason in such a way was circular and impermissible. He further submitted that Cuong Lam's claim in the video interview, that he was not present at the river, amounted to a denial that he had committed the offence. Such a denial, it was said, could not be used to support an inference of a consciousness of guilt as it was also a boot straps' argument. Counsel invoked the admonition by Lowe J in Edmunds v Edmunds[11] that a denial that the accused did the act can never amount to evidence that he did the act.
12 Counsel for Hung Van also submitted that the prosecution argument involved an impermissible circularity of reasoning as the prosecution would have to establish the guilt of Hung Van before a jury could conclude that the alleged lies involved an implied admission. Mr Jackson submitted that the prosecution would have to establish that Hung Van was acting in concert before the falsity of the lies was established. It was submitted that this would require the jury to make findings on the same essential facts that the Crown depended upon to establish his guilt. It was argued that if those facts were insufficient to prove the guilt of the accused beyond reasonable doubt, then a circularity of reasoning would be employed if the jury utilised them for the purpose of finding, to some lesser standard, that the accused lied out of a consciousness of guilt and then used such an inference in conjunction with those facts to reach a conclusion of guilt.
13 Counsel for Linh Van (Johnny) Nguyen adopted the submissions made by counsel for Cuong Lam and Hung Van and submitted that proof that the false denials supported a consciousness of guilt required proof by the prosecution of his client's guilt. He submitted that a number of the utterances upon which the prosecution relied demonstrated a desire by Johnny Nguyen to distance himself from the conduct of Thanh Nha (David) Nguyen. He submitted that proof of the falsity of these denials and the inference that they were told because of a recognition that if he admitted his association with David Nguyen at the time of the offence he would reveal his own guilt, required the prosecution to establish Johnny Nguyen's guilt.
14 Counsel for Long Tran adopted the arguments of counsel for Cuong Lam and Hung Van and submitted that there must be a clear and demonstrable lie which involves something more than an assertion that they were not involved in the commission of the offence.
15 Counsel for Hong Bui submitted that the prosecution was engaged in a boot straps argument which relied upon proof of the ultimate guilt of the accused to establish that the utterance was a lie borne from a consciousness of guilt. He submitted that the decisions of the Victorian Court of Appeal in Camilleri[12] and Franklin[13] left open the right to argue, in the present circumstances, that the prosecution was seeking to employ a boot straps argument. Reliance was placed upon a passage in the judgment of Nettle JA in R v Russo[14].
Lies or facts establishing lies an Indispensable Link in a Chain of Reasoning Towards Guilt
16 A variation of the preceding argument was also advanced by Counsel for Cuong Lam and Hung Van who submitted that the alleged lies concerned facts which were an indispensable part of a chain of reasoning towards the guilt of the accused and the jury would have to engage in circular reasoning
17 It was submitted that to prove that the assertions made by the accused were lies, the prosecution would need to establish facts essential to the guilt of the accused and would have to disprove facts at the heart of the defence of each accused. Counsel for Hung Van submitted that the lies relied upon by the prosecution required proof of indispensable links in a chain of reasoning towards guilt. He submitted that to establish the lies and the inference for which the Crown contended it would be necessary for the prosecution to establish the guilt of the accused.
18 Thus it was submitted on behalf of Cuong Lam and Hung Van, that alleged lies in relation to their conduct in Daly Street and Chapel Street or at the scene of the murder were essential facts upon which the Crown relied to establish that they were acting in concert to commit the offences with which they were charged. Counsel for Johnny Nguyen, made a similar submission. He argued that proof of the alleged lies as to the attendance of Johnny Nguyen's vehicle and its movements at or near the murder scene were essential matters which the Crown was required to establish in proof of guilt. Counsel for Hong Bui further developed the submission made by other counsel that to establish the lie, the Crown would be required to prove essential links in the chain of reasoning towards a conclusion of guilt. He submitted that in accordance with Shepherd v The Queen[15] such facts would have to be proved beyond reasonable doubt. He contended that such a reasoning process was so complex that the alleged lies should not be left to the jury as supporting a consciousness of guilt.
19 The reference to evidence being "an indispensable link in the chain of evidence necessary to prove guilt" is drawn from the passage in the joint judgment in Edwards[16] and appears to be a reference to the method of reasoning discussed by the High Court in Shepherd v R[17] where guilt rests upon a conclusion of fact which in turn depends upon a previous conclusion of fact.[18] Where the evidence can be so described each fact must be proved beyond reasonable doubt.
20 It is necessary to consider these submissions from the standpoint of legal principle. Reference should again be made to the joint judgment of Deane, Dawson and Gaudron JJ in Edwards v The Queen in which the following observations were made: