Public Defender II Junior
In T&T, it is possible for the guilt of an accused person to be inferred from their conduct after the alleged crime. That conduct in law is known as “post-offence conduct”.
What is post-offence conduct?
Some examples of conduct whereby an accused person’s guilt can be inferred are if the accused: fled the scene of the crime, escaped when confronted by the police to avoid being arrested, left the country, changed his/her appearance, threatened the prosecution’s witnesses or plotted to have the main witness or other witnesses killed.
During a criminal trial before a judge alone or a judge and jury (“fact finder”), this type of evidence is usually admitted to show that the accused acted in a manner which, based on human experience and logic, was consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.
To elaborate further, evidence of post-offence conduct can be considered indirect evidence and can sometimes be highly incriminating based on the interpretation of the conduct. It is therefore important for the fact finder to be directed that the post-offence conduct must be considered in light of all the other evidence presented during the trial to determine whether it is consistent with any other conclusion.
Admissibility of
post-offence conduct
Before evidence of post-offence conduct is led from a witness or otherwise admitted into evidence, the prosecution must make an application to the judge.
This type of evidence can only be allowed if permission is granted by the judge. The defence has the right to challenge the application and again during the cross examination of the witness. The defence also has the option, through the testimony of the accused or his/her witnesses, to put forward an alternative explanation for the actions.
In deciding whether to allow the evidence of what an accused person did after an alleged crime, the judge must follow certain steps.
First, the judge must be satisfied that the evidence is post-offence conduct, as the examples highlighted above.
Secondly, the judge must decide if the evidence is relevant to the case. Simply put, the judge considers whether that conduct is actually connected to the case and helps the court to understand what happened.
Finally, the judge must decide whether admitting this evidence is fair and in the interests of justice. This third consideration is critical because quite often, there is a danger when evidence of post-offence conduct is introduced to infer guilt.
There is a danger that the judge or jury may overlook other reasonable explanations for the accused’s behaviour and jump to the conclusion that he/she is guilty.
Is it in the interest of justice?
In deciding whether it is in the interest of justice to allow the post-offence conduct, there are several factors the court must consider. The judge must engage in a balancing exercise which involves weighing up the benefits and the risks. The judge looks at how strong and reliable the evidence is, and whether the witness is credible.
The judge also considers whether the evidence might be unfair to either side, difficult to present, or likely to mislead or unfairly influence the outcome of the case.
In jury trials, the judge also considers whether proper instructions to the jury can reduce any unfair prejudice. After balancing all these factors, the judge decides whether the evidence should be heard by the judge or jury.
In one case, an accused made a cut-throat gesture towards the arresting officer who was a prosecution witness. The judge conducting the trial allowed this as post-offence conduct. However, the Appeal Court said that the judge should not have allowed this evidence, as it unfairly made the jury see the accused as a brazen criminal and wrongly assumed he was guilty.
This balancing exercise underpins the judge’s discretion to exclude or admit evidence, which is a powerful tool for the maintenance of fairness in criminal proceedings.
At the appropriate time of the trial, usually during closing address to the judge or jury, the prosecution may ask for the post-offence conduct to be treated as evidence of guilt. However, the defence may urge the judge or jury to be cautious. Where the accused has offered an explanation for their behaviour or where the evidence can be interpreted in more than one way, the defence will argue that the conduct should not automatically be taken as proof of guilt.
Conclusion
While certain actions after a crime may suggest guilt, they can also have innocent explanations.
Ultimately, a person should not be judged by how they behaved after an incident alone, but by all the evidence taken together. The law’s careful approach is meant to protect fairness and reduce the risk of wrongful convictions.
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port-of-Spain.
Contact: 638-5222
Email: pdd@laaa.gov.tt
Website: laaa.org.tt
