Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/43

 1155. This reflects the accumulated wisdom and experience of the common law that witnesses may lie about some things and yet tell the truth about others, and the tribunal hearing the evidence is best placed to fix upon the truth. …

138 Another Full Court (Wigney, Wheelahan and Abraham JJ) in Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 recently made the same point (at [272]) as follows:

E.9Implied Admissions and "Consciousness of Guilt"

139 Given, as I will explain, the two principal witnesses in the justification case told lies during their evidence and in the making of out-of-court representations, the final matter to which I wish to draw attention is how these lies can be used in the fact-finding process.

140 Ms Higgins is not a party, and although any lies told by her will be central to my assessment of her creditworthiness (and hence reliability), the position of Mr Lehrmann, as a party and as someone who gave evidence contrary to the evidence adduced by the onus-bearing party, needs separate examination.

141 Recently, as part of the Full Court in Kim v Wang [2023] FCAFC 115; (2023) 411 ALR 402, I referred (at 428 [150]) to the decision of the High Court in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2010) 243 CLR 361 (at 384–385 [63]), where Heydon, Crennan and Bell JJ relevantly explained that when a party calls testimony known to be false, this conduct can amount to an implied admission or circumstantial evidence permitting an adverse inference, and I then (at 428–429 [151]) observed as follows:

142 The concept derives from the criminal law and forms part of the more general principle that the Crown can rely upon an accused's post-offence conduct as evidence of a consciousness of guilt: this could be a lie told in or out-of-court or by other conduct, including suborning Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369