A tendency to lie direction is a judicial instruction that tells a jury how to treat evidence that a witness, including the accused, has lied on a prior occasion. Courts give the direction to prevent a jury from reasoning: "this person lied before, so they probably committed the offence." That reasoning is impermissible. But evidence of prior lies can still carry legitimate weight if the jury uses it correctly, and the direction spells out exactly how.
The distinction that matters
Australian criminal courts draw a sharp line between two types of reasoning. The first is propensity reasoning: concluding that because someone lied once, they have a dishonest character and therefore must be guilty of the charge. Courts treat this as unfair and unreliable. The second type is credibility reasoning: accepting that because a witness told a demonstrable lie on a specific, identifiable occasion, the jury should weigh that witness's current testimony with care.
The tendency to lie direction permits the second and forbids the first. It's a fine distinction, but it matters enormously in practice. Without the direction, a jury might use the evidence in either way, or both at once, without realising the difference.
When does a judge give the direction?
A judge gives the direction when evidence of prior lying has been admitted and the jury needs guidance on its proper use. This typically arises in three situations.
- A prosecution witness is shown to have told an identifiable lie to police or in an earlier proceeding.
- The accused has made a prior statement that is contradicted by another statement or by objective evidence.
- Cross-examination has exposed an inconsistency significant enough to amount to a deliberate untruth rather than a lapse of memory.
The request for the direction can come from either the defence or the prosecution. Defence counsel often seeks it to limit how far the jury takes evidence of the accused's prior inconsistencies. The prosecution sometimes seeks it where a key witness has been caught in a lie and the Crown wants to confine the jury's response to that specific credibility question rather than letting it colour the entire case.
How does the direction work in practice?
The judge identifies the specific lie in question. The direction then instructs the jury that the evidence of the prior lie is relevant only to the credibility of that witness on the matters the witness addressed. It cannot be used as independent proof that the accused committed the offence.
This is similar in structure to the way a tendency direction constrains the use of tendency evidence generally. In both cases, the jury receives the evidence but is told to confine its reasoning to a defined purpose. The difference is that a tendency direction applies to conduct evidence, whereas a tendency to lie direction targets statements and credibility.
In some cases the direction is accompanied by a warning that convicting on the basis of a lie alone would be unsafe. That warning becomes particularly important where the lie is the strongest piece of evidence connecting the accused to the offence.
What happens if the direction is not given?
If a judge fails to give the direction when the circumstances clearly call for it, the accused may have grounds for appeal. The question on appeal is whether the misdirection caused a substantial miscarriage of justice. Courts do not automatically order a retrial; they assess whether the outcome would have been different if the jury had been properly directed.
Defence lawyers routinely raise the absence of a tendency to lie direction in post-conviction appeals, particularly in cases where a central issue at trial was whether the jury believed the accused's account. Ann Valos Criminal Law has seen this issue arise in contested hearing matters across a range of charge types, where the Crown's case rested heavily on the inconsistency between what the accused said to police and what the accused said in evidence.
Connection to other directions
A tendency to lie direction does not exist in isolation. Judges often give it alongside other credibility warnings. Where the evidence of prior lying comes from police, it may intersect with a McKinney direction, which cautions the jury about relying on police evidence that lacks independent corroboration.
Where an accused has stayed silent at an earlier point and the prosecution argues that silence was itself a form of deception, the direction may also interact with questions about the right to silence and what inferences the jury can draw. These overlapping directions require careful coordination. A trial judge who gives one without adequately explaining its relationship to another risks confusing the jury about the correct framework for their reasoning.
Practical implications for the accused
If you are facing a criminal trial and there is evidence that you said something inconsistent on an earlier occasion, you need a criminal lawyer who understands how tendency to lie directions work and when to seek one. The direction does not eliminate the damage of a prior inconsistency, but it limits how far that damage can travel in the jury's deliberations.
Ann Valos Criminal Law handles criminal matters across New South Wales and works with clients to identify where judicial directions are needed and how to frame the request. The firm is accredited in criminal law and has over 15 years of direct trial experience, with the Ann Valos practice focused on ensuring every available procedural protection is used effectively.
If you're uncertain whether a tendency to lie direction applies to your matter, take advice early. Decisions about how to run a trial, including which directions to seek, need to be made well before the jury retires.