Johnstone v R

The case of Johnstone v R concerns the conviction of the applicant, who was found guilty of murder. The applicant appealed against his conviction, arguing that an omission in his record of interview was a deliberate lie, which was improperly left as evidence of consciousness of guilt. The issue was whether the omission was 'intractably neutral' and whether the judge failed to properly identify the lie in his directions to the jury. Additionally, the applicant argued that the prejudicial effect of the evidence led to the establishment of the nature of the relationship outweighed the probative value.

The Court of Appeal found that the omission in the applicant's record of interview was a deliberate lie. The Court applied R v Ciantar (2006) 16 VR 26, which established that an omission in a record of interview can be a deliberate lie if it is shown to be false and material. The Court distinguished Ellis v The Queen [2010] VSCA 302, which held that the judge's directions on consciousness of guilt were unbalanced. The Court found that the judge's directions on consciousness of guilt were not unbalanced, and the evidence was properly admitted as it was relevant to the applicant's state of mind and consciousness of guilt. However, the Court found that the prejudicial effect of the evidence led to the establishment of the nature of the relationship outweighed the probative value. The Court found that the verdict was not unsafe and unsatisfactory.

The Court granted the application for leave to appeal and allowed the appeal. The Court found that the prejudicial effect of the evidence led to the establishment of the nature of the relationship outweighed the probative value, and the verdict was not unsafe and unsatisfactory. The Court ordered that the conviction be quashed and a new trial be ordered.