New South Wales Supreme Court CITATION : R v Keli LANE [No 5] [2010] NSWSC 1532 HEARING DATE(S) : 09/08/2010 - 13/12/2010 JUDGMENT DATE : 23 August 2010 JUDGMENT OF : Whealy J CATEGORY : Procedural and other rulings R v Edwards (1993) 178 CLR 193 R v Spathis [2001] NSWCCA 476 R v Ray (2003) 57 NSWLR 616 CASES CITED : R v Adam (1999) 106 A Crim R 510 R v Cook [2004] NSWCCA 52 R v Lam (2008) 185 A Crim R 453 Healey v R [2008] NSWCCA 229 PARTIES : Regina (Crown) Keli LANE (Accused) FILE NUMBER(S) : SC 2009/256171 COUNSEL : M Tedeschi QC / H Baker (Crown) K Chapple SC / S Sloane (Accused) SOLICITORS : Director of Public Prosecutions (Crown) K Laurie, Archbold Legal Solutions (Accused) LOWER COURT JURISDICTION : Supreme Court - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J MONDAY 23 AUGUST 2010 2009/256171 REGINA v Keli LANE JUDGMENT – Re admissibility of evidence – see p 552 of transcript 1 HIS HONOUR: I trust I do no injustice to the Crown submission by the following summary. The Crown, conscious of the fact that MFI 3 contained introductory directions to the jury, suggested nevertheless that the terms of the direction, particularly in paragraphs 1, 2 and 3, which were directions in connection with the birth of Tegan, and the identity of her male parent, the jury may have got the impression that lies could never be used as evidence in a Crown case of an accused person's guilt. It was for that reason the Crown suggested an addendum. 2 The addendum is in the following terms. It appears after point 4: "In certain circumstances a lie can amount to evidence in the Crown case of the accused's guilt. Whether or not those circumstances may have arisen in this case is relevant to what the Crown says are lies are told after Tegan's birth about the handing over of Tegan". 3 CROWN PROSECUTOR: It should be "in relation to what the Crown says." It should be, "in relation to what the Crown says are lies told after Tegan's birth." 4 HIS HONOUR: There is an error in your draft. I will read it out again just as I think it should be. You correct me if I'm wrong. 5 CROWN PROSECUTOR: Yes, your Honour. 6 HIS HONOUR: "In certain circumstances a lie can amount to evidence in the Crown case of the accused's guilt. Whether or not those circumstances may have arisen in this case in relation to what the Crown says are lies told after Tegan's birth about the handing over of Tegan remains to be decided by me later in the trial." 7 CROWN PROSECUTOR: That's correct. 8 HIS HONOUR: Mr Chapple has submitted that it is premature to give this direction at the present time. Secondly, he argued that the absence of detail, an absence of reference to specific lies will tend to be confusing to the jury and- 9 CHAPPLE: If I may interrupt, it was also the evidence hadn't been given. 10 HIS HONOUR: Thirdly, as is perhaps indicated by the second point, as the evidence had not yet been given, it would be puzzling for the jury to work out really what was being said. Now, I suppose there are three points I would make: First, the direction I gave originally to the jury was given after the Crown opened. It was given virtually before any evidence had been led in the trial, certainly any evidence on this point. 11 Secondly, given the timing of the earlier direction, it was to be no more than a preparatory or introductory direction to the jury in the absence of the actual evidence. It was given so as to prevent the jury at an early stage from misunderstanding the position of lies in a criminal trial. This is a trial in which the Crown will rely on a considerable number of lies. Some of those revolve around the birth of Tahlia Rose, and perhaps the termination of pregnancies, at least one of them, and also there will be lies suggested surrounding the birth and adoption of Aaron. These are essentially lies going to credibility and background in the murder charge. 12 Importantly for the Crown case in the way it wishes to lead matters to the jury, there will be a need to consider whether any lies told in connection with the birth of Tegan and, critically, what happened to Tegan after her birth may be relied upon by the Crown as evidence of consciousness of guilt. 13 This is a difficult subject and one where the court needs to proceed with a considerable degree of circumspection and caution. Indeed, the Crown has echoed those sentiments but nevertheless firmly intends to ask the court to ultimately leave the case to the jury on the basis that certain lies that were identified in his opening can be relied upon by the jury in all the circumstances as evidence persuasive of guilt. 14 I say "in all the circumstances" because I do not understand it to be the Crown position that it will simply say that a lie has been told, that that lie is an admission of guilt in itself and that the jury could therefore reason from any one of those lies, without more, that guilt has been established. Of course, if that were to be the case, the question of onus of proof in relation to the matter, that is proof beyond reasonable doubt, would arise. But as I say, I do not understand that to be the Crown position; rather, the Crown intends to point to a series of alleged lies and argue that, in the circumstances of the case, those lies may be used by the jury as pointing towards guilt. 15 This leads me then to the third point: we are at a stage in the case where the evidence relating to this category of lies has not yet emerged. It was for that reason earlier today, when evidence pointing to lies concerning the birth and adoption of Tahlia was introduced by the Crown, it seemed to me to be appropriate, at that point, to remind the jury of the directions that I had given. There was no contest between the Crown and myself that the part of the directions dealing with Tahlia's adoption and birth did not require any amendment at this point in time, bearing in mind, of course, that they are preparatory directions only, and more fulsome directions will need to be given in due course. 16 The question now is, however, whether anything should be said to the jury at this point to, as it were, move towards a perfection of the direction already given. The Crown does not suggest that the additional paragraph it has put forward is by any means the final direction that will be given to the jury. The Crown's concern really is that the jury may have been left with a notion that lies could never amount to evidence in a Crown case of an accused person's guilt. 17 In the end I have come to the conclusion that I ought not say anything to the jury at this stage on the subject. There are essentially for three reasons: First, I repeat that the direction I have already given to the jury is merely a preparatory direction designed to prevent misuse of lies unfairly against the accused. It is not designed to state with any degree of precision the Crown position, or the position it will ultimately wish to argue. 18 Secondly, since the evidence has not already been given it is not appropriate at this stage to say anything much at all to the jury on the issue of consciousness of guilt. Even when it is given, the need for caution will remain until full argument has been made on the critical point. 19 The principal authority in this area is the case of R v Edwards (1993) 178 CLR 193. There have been many cases since Edwards where the position has been commented upon, reviewed, applied and occasionally qualified in relation to a difficult question. (See R v Spathis [2001] NSWCCA 476; R v Ray (2003) 57 NSWLR 616; R v Adam (1999) 106 A Crim R 510, R v Cook [2004] NSWCCA 52; R v Lam (2008) 185 A Crim R 453; Healey v R [2008] NSWCCA 229). Overall, the decisions of the High Court and the New South Wales Court of Criminal Appeal in this area demonstrates that great care must be taken when giving a direction to a jury regarding lies to be used as evidence of consciousness of guilt. It is essentially for that reason that I think it is apt to be confusing and distracting for the jury if they were given a piece by piece direction on the subject, particularly before any evidence has been led. 20 Finally, I would say that, with every due respect to the Crown's arguments forcefully put though they were, I do not consider that the original direction was apt to mislead the jury. It was a direction given after consultation, and with the agreement of the parties. It is true that it did not tell the jury very much at all about the likely Crown position, or very much about the position the prosecution may be entitled to take where lies are relied upon as evidence of consciousness of guilt. That much I accept. It was not intended to do that. It was designed to prevent misuse of lies, and to provide a cautionary note on the topic. The jury were specifically told this: "You must not fall into the error of thinking that if a person has told a lie then that lie in itself can prove guilt." The words "in itself" seem to me to provide the qualification that is sufficient and specific enough for present purposes, even though it does not go on to delineate the position the Crown will wish to address. 21 For all those reasons I conclude that it is not necessary at this stage to give the amended direction sought to be relied upon by the Crown and which is set out in the document which I should mark for identification, I think, as MFI 10. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.