New South Wales Supreme Court CITATION : R v Keli LANE [No 18] [2010] NSWSC 1545 HEARING DATE(S) : 09/08/2010 - 13/12/2010 JUDGMENT DATE : 17 November 2010 JUDGMENT OF : Whealy J LEGISLATION CITED : Criminal Appeal Act 1912 CATEGORY : Procedural and other rulings R v PL (2009) NSWCCA 256 Doney v R (1990) 171 CLR 207; (1990) 50 A Crim R 157 at 162 CASES CITED : R v JMR (1991) 57 A Crim R 39 Plomp v The Queen (1967) 110 CLR 234 Keir v the Queen [2007] NSWCCA 149 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 - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J WEDNESDAY 17 NOVEMBER 2010 2009/256171 REGINA v Keli LANE JUDGMENT: Re No Case application – see page 2883 of transcript 1 HIS HONOUR: The accused Keli Lane stands charged for the murder of her daughter Tegan. She is also charged with three counts of perjury. Mr Chapple of senior counsel on behalf of the accused has submitted that, in relation to the murder charge, there is "no case" for his client to answer. He seeks a directed verdict of not guilty on the murder charge. 2 The principles in relation to the correct approach to be taken by a trial court where such an application is made are not in doubt. They were recently stated in R v PL (2009) NSWCCA 256 by Spigelman CJ with whom the other members of the Court agreed. Those principles draw in turn upon the well known statements in Doney v R (1990) 171 CLR 207; (1990) 50 A Crim R 157 at 162 and other established authorities which I need not cite for the purposes of this judgment. 3 The relevant principles may be shortly summarised as follows: (a) The Crown case must be taken at its highest and it is for the jury, not for the judge, to resolve conflicts of evidence. (b) Where there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberation, and that evidence is capable of affording a verdict of guilty, the matter must be left for the jury for its decision. (c) It is not the task of the Court to form any view as to whether a conviction would be unreasonable having regard to the evidence. That is a matter for the Court of Criminal Appeal under the appeals system in the Criminal Appeal Act 1912 . It is not a matter for the trial judge, whatever may be his views. (d) It is not sufficient in a circumstantial case for a judge to conclude that there may be a reasonable hypothesis consistent with innocence (see R v JMR (1991) 57 A Crim R 39). Indeed, the presence of competing hypotheses, a not unusual situation in a criminal trial, and the question whether they have been excluded by the Crown, is a matter for the jury to resolve. It is not a matter that is determinative, or even relevant, to the application with which I am dealing. 4 I turn now to the evidence in the present trial. In both a practical and legal sense, to determine the present application, the Crown case must be taken at its highest. As the Crown case is a circumstantial case, it is agreed between the parties that the Court's task is to review the evidence, accepting however the inferences favourable to the Crown that are reasonably open on the evidence. It is not, I repeat, a matter for me as the trial judge to select the inference that I prefer or to reject the inference that I think is unlikely. The issue is whether there are inferences favourable to the Crown that are reasonably open on the evidence and, it is in that light, that I need to examine the evidence. 5 Mr Chapple submits there is no evidence from which the jury could find that it was the deliberate act of the accused that caused the death of Tegan. Further, he submits there is no evidence from which the jury might find that the act causing death, assuming Tegan be dead, was carried out by the accused with the intention to kill the child. These two ingredients of the charge are those set out by me in the document MFI 78 and were particularised as ingredients, 1(b) and 1(c). 6 In support of his submission, Mr Chapple has argued that there is in fact a complete absence of direct evidence as to either of the two matters identified. Nor is there any evidence, Mr Chapple suggested, as to the manner or place of death and there was no scientific evidence of any relevant type in relation to the body or remains of the alleged victim. Indeed, the body of the alleged victim has, of course, never been located. While Mr Chapple did not concede that there was direct evidence to show the death of Tegan, he nevertheless structured his arguments around ingredients 1(b) and 1(c) rather than 1(a). 7 Mr Chapple's submissions focussed critically on the evidence of the accused's movements and presentation on 14 September 1996, that being the day when the Crown alleges the child was murdered. In relation to those movements and presentation, Mr Chapple said there was absolutely nothing to support the Crown case in relation to its obligation to prove the two essential ingredients of the charge. It was essentially the absence of any direct evidence in relation to those essential ingredients that formed the basis of senior counsel's argument. Consequently, Mr Chapple argued the Court should direct a verdict of not guilty on the murder charge. 8 I turn now to the Crown submissions. The Crown submits that in deciding the present application the court must look at the evidence in the Crown case as a whole. The Crown case is essentially a circumstantial case and for that reason it is not appropriate to scrutinise the evidence in a piecemeal fashion. Of course, in examining the evidence as a whole, the court must not lose sight of the individual pieces of evidence. 9 The Crown case resolved itself upon examination into a number of general strands. It is a lengthy and complex case but in my view it may be stated briefly in the following manner: First, there is the evidence relating to the birth and "disappearance" of Tegan. There is no doubt that the child was last publicly observed with her mother at the hospital on 14 September 1996. The accused arrived at her parents' home later that day without Tegan. She attended a wedding with her boyfriend that evening although the evidence suggests that she was "quiet" and that she went home early after the wedding while others, including her boyfriend, continued to enjoy the revelry. It seems, generally speaking, that there was no mention about Tegan for a number of years after that time, until the involvement of the Department of Community Services and also the police in 1999/2000. 10 Secondly, there is the evidence relating to the issue of lies. This has been a major element in the Crown case. There is a continued and extensive reference to a number of lies told by the accused or allegedly told by the accused over a considerable period of time. These encompass the birth of Tegan and the birth and adoption of two other children, born in 1995 and 1999 respectively. The Crown relies on the circumstances surrounding the births of the children for a number of purposes: Partly, to support one aspect of its motive argument but principally to reject the likelihood of the explanation to be given later by the accused to the police. This was, albeit in different versions, that she had given the child to its natural father, a man named Andrew Norris or Morris. Further, this tendency evidence is sought to be used to suggest the accused invented a fictitious parent and that the personage of "Andrew Norris" was so remarkably similar to that of "Aaron Williams" that the jury might reason that both were inventions. Overall the evidence is to be used in relation to the issues in the murder charge as a stepping-stone to exclude the possibility that Tegan was given away or simply abandoned. 11 Thirdly, there is the evidence the Crown relies upon to establish that three of the alleged lies told by the accused were told in consciousness of guilt. These lies were essentially the explanations to persons in authority that she had given the child to its natural father, or to other persons in Western Australia. 12 Fourthly, there is a general body of evidence going to motive and opportunity to murder the child. I agree with Mr Chapple that the evidence in some of these areas is rather weak, but it needs to be recalled that I am not the trier of fact nor is the present exercise one that involves weighing up or evaluating the probative force of individual pieces of evidence. 13 Fifthly, there is the very extensive evidence of the searches for Andrew Morris/Norris, the Wisbeach Street inquiries and the search for Tegan. 14 In general response to Mr Chapple's submissions the Crown has argued that there is a considerable body of circumstantial evidence from which the jury could conclude, (a) that the child is dead, and (b) that the death, far from being accidental, was caused by the accused and intentionally so. Secondly, the Crown says that the accused's movements and presentation on 14 September 1996 are not inconsistent with its case and that the evidence would allow the drawing of inferences favourable to the Crown position in that regard. Further, the Crown readily concedes that there is no direct evidence of a violent death perpetrated by the accused upon Tegan. Indeed, the Crown accepts that there is no direct evidence of death at all. The Crown argues that this is not a novel situation and referred to the Burrell trials and other cases as well. I should say that the circumstantial case in the first Burrell trial was markedly different from the present case. 15 The Crown, in further submissions, referred the Court to propositions in Plomp v The Queen (1967) 110 CLR 234 and Keir v the Queen [2007] NSWCCA 149 to suggest that motive evidence in an appropriate case could be regarded as part of the proof of an act of murder, and proof of the presence of the necessary accompanying intention to kill or cause really serious physical injury. 16 Finally, the Crown referred to the overall thrust of the evidence. It emphasised the fact that the accused had been solely responsible for the care of the child at about the time she left the hospital and the child has not been seen since. The Crown maintains that there is evidence that taken at its highest would be capable of satisfying a jury that all other reasonable hypotheses had been excluded. 17 Having examined the evidence as a whole and having listened to and read the submissions of counsel, I am satisfied that, taken at its highest and allowing, as I must do, for a wide range of inferences to be drawn in favour of the Crown, it would be open to a jury to convict in relation to the murder charge, notwithstanding that there is no direct evidence of elements 1(b) and 1(c). I agree, however, with Mr Chapple that many of the inferences sought to be drawn by the Crown are not strong, and that some are in many respects quite weak. But I repeat that I am not the tribunal of fact and these will be matters for the jury, properly instructed, to determine. 18 My strong view is that justice does require that this matter to be left before the jury. I agree with the Crown that any reservations I may have about the Crown case should not result in the matter being withdrawn from the jury, but should form the basis of directions to be given to the jury which, with counsel's assistance, I trust I will be able to do. The jury then, armed with those directions and benefiting from the submissions of counsel and my general summing-up, will be the appropriate tribunal to determine the complex range of issues in this difficult and unusual trial. For these reasons I decline to direct a verdict. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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