2014年3月7日 星期五

Flight as Consciousness of Guilt

Evidence that the accused fled from a place to avoid arrest or trial can be admitted as evidence of consciousness of guilt in a similar way to the use of a lie. The suggested directions  concerning the use of lies can be adapted. The most significant direction is that the jury must be satisfied that the accused fled because of a consciousness of guilt of the offence for which he or she stands charged and not for some other unrelated reason.

HK SAR v Mo Shiu Shing   CACC6/1998 
 Court quoted with approval
In R v Chan Kwok-keung and Another, (1990) 1 HKLR 359, where the evidence of flight and concealment was used as potential corroboration of accomplice evidence, the Privy Council, in the opinion delivered by Lord Ackner, said at page 363:

"In order for flight to be capable of amounting to an admission of guilt there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question. In this case the prosecution produced no evidence to establish that either of the appellants had been hiding away or otherwise behaving in an unusual manner in this period of nearly ten months. There was therefore no material which could have justified the jury inferring that the only reasonable explanation for the appellants stowing away on the ship from Hong Kong to Macau was that they were on the run, because they knew they might be arrested and charged with this murder. There could have been a variety of other reasons for their having stowed away nearly ten months after the murder."
 The directions which the jury were given are to be found at page 19F in the summing up:

"In relation to his absconding - not turning up - I say to you much the same as I have just told you about lies. There are many possible motives, are there not, for human conduct? People might flee because they suddenly panic, or because they fear that, even though they are innocent, things just look very bad for them and they can't bear the thought of imprisonment. Or, people might flee because they just can't face things as they are; they can't see a trial through; pressures have become too much; for the waiting for a trial can, I am sure you will appreciate, bear enormous pressure on people day after day. Or, of course, it may be that some people flee because there is, in fact, a consciousness of guilt.

            If that sort of innocent reason that I have referred to is the reason which may have prevailed in this case, then just put aside this fact that this defendant absconded. Just ignore it when you are coming to consider whether he is guilty of these matters and concentrate on the rest of the evidence that you find proved. And, as with lies, the mere fact that somebody has absconded cannot, on its own, prove his guilt. It can, if you exclude all the innocent motives to which I have referred, it can be part of the list of primary facts from which inferences may, together with all the other inferences, be drawn, but only if you are sure that the only reason he was fleeing was because he was conscious of his guilt of the offence you are considering...." (Emphasis added.)

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