Can what a person does after an alleged offence be used against them?

PUBLISHED ON September 10, 2025

Introduction

Evidence of what a person does or says after an alleged offence was committed may be used in deciding whether the person committed the offence in question. This is a type of circumstantial evidence and is called post-offence conduct or after-the-fact conduct evidence. Examples include flight from the police/country, evidence of concealment/cleaning up the crime scene, demeanour evidence, post-offence association with a co-accused, and failure to render assistance. There are many more.

Not long ago, this type of evidence was called consciousness of guilt evidence. When admissible – that is, when the evidence allows a judge to draw inferences that are relevant to a material issue in the case – the judge can use the evidence along with all the other evidence in the case, in deciding whether the prosecutor has proven guilt beyond a reasonable doubt.

There must be no other explanation for the words or conduct

Importantly, the judge must not infer guilt from the after-the-fact conduct unless, when considered with the rest of the evidence in the case, the judge is satisfied beyond a reasonable doubt that guilt is the only rational inference that can be drawn from all the evidence. This is because there are often other explanations for the conduct that have nothing to do with the accused’s participation in the alleged offence. Because of this, the law holds that a judge may only use the after-the-fact conduct evidence to support an inference of guilt when the judge has rejected any other explanation for the conduct.  Thus, there are two steps:

• The judge must determine whether the person actually did or said what the person is alleged to have done or said, and
• The judge must determine whether what was done or said was related to the offence charged or to something else.

Evidence of after-the-fact conduct is often at issue in murder cases. Take, for example, a case where an accused is charged with murder, the victim having been killed with a firearm, and after the shooting, the accused hides the firearm in the woods and cleans up the scene where the shooting occurred. While this evidence could support an inference that a person had the state of mind to commit murder (an intentional killing) at the time of the shooting, the accused might also have accidentally discharged the firearm (an unintentional killing). In either scenario, the accused may have been terrified of the consequences and sought to avoid apprehension. It would be improper to suggest that because the accused disposed of the firearm and cleaned up the scene, it proves an intentional murder.

How will a jury know what to do with the evidence?

In a jury trial, the jury must be instructed by the trial judge about the relevant risks associated with after-the-fact conduct evidence. Jurors receive cautionary instructions alerting them to the reasoning dangers associated with this type of circumstantial evidence. Limiting instructions – directions to limit the use to which they put the evidence – typically include three elements:

1. Identification of the evidence to which the instruction applies
2. An instruction on the permitted use of the evidence
3. An instruction on the prohibited use of the evidence.

As an example, in a case where the defence is one of “intoxication”, after-the-fact conduct evidence may be admissible to show that an accused’s conduct and demeanour are inconsistent with a heavily intoxicated person. The jury may be instructed that they can use the evidence in assessing intoxication, but cannot use the evidence to assess the accused’s intent or general state of mind, for example.  Of course, the trial judge has a duty to ensure that jurors are aware of, and consider, alternate explanations for the words/conduct.

This article provides a brief and general explanation of the law surrounding after-the-fact conduct evidence. This is not legal advice and is not intended to be so. Should you require legal advice about your case, you should consult with an experienced criminal defence lawyer. Should you be charged with a criminal offence and need to speak with a lawyer, contact Brian Ross at (416) 658-5855.