R v Keli LANE [No 23] [2010] NSWSC 1553

New South Wales Supreme Court

CITATION : R v Keli LANE [No 23] [2010] NSWSC 1553

HEARING DATE(S) : 09/08/2010 - 13/12/2010

JUDGMENT DATE : 17 December 2010

JUDGMENT OF : Whealy J

LEGISLATION CITED : Jury Act 1977 ss 55(2)(a), 55F

CATEGORY : Procedural and other rulings

PARTIES : Regina (Crown) Keli LANE (Accused)

FILE NUMBER(S) : SC 2009/256171

COUNSEL : M Tedeschi QC / H Baker (Crown) K Chapple / S Sloane (Accused)

SOLICITORS : Director of Public Prosecutions (Crown) K Laurie, Archbold Legal Solutions (Accused)

LOWER COURT JURISDICTION : Supreme Court

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

WHEALY J

FRIDAY 17 DECEMBER 2010

2009/256171 REGINA v Keli LANE

REASONS: Decision that circumstances exist for a majority verdict to be taken in the trial

1 HIS HONOUR: On Monday 13th of December 2010, I stated that I was satisfied, for the purposes of section 55F of the Jury Act 1977, that circumstances then existed for a majority verdict to be taken in the trial. These are my reasons for being so satisfied. 2 The jury retired to consider verdicts in the trial on Monday 6th of December 2010, at approximately 11:15am. The jury continued deliberations for the remainder of that day and, generally speaking, deliberated between the hours of 9:30am and 3:30pm on each of 14th, 15th and 16th of December 2010. On Friday 17th of December 2010, the jury deliberated between 9:30am and 12:45pm. In all, according to my calculations, the jury had been considering their verdicts for approximately 21 hours. In making those calculations, I have omitted meal times, and breaks, etc. 3 The question as to whether the court is satisfied that a verdict may be taken, which is not a unanimous verdict, requires an examination of a number of differing circumstances. Regard must be had to the circumstances of the trial, the issues in the trial, and, of course, the period of time which has passed. The present trial involved one count of murder and three counts of perjury/making a false statement on oath. The trial has extended over 4 months. It is a circumstantial evidence case. The issues are relatively straightforward and simple, but the position is complicated by the very large amount of evidence that has been placed before the jury. 4 In addition to these considerations, on Monday 13th of December 2010, I received two notes. One note was from an individual juror, and the second was from the foreman of the jury. It was not appropriate for me to reveal the contents of these notes publicly. I was able to indicate, however, that the essence of the notes was that the jury may have reached a unanimous position on some counts, but had not been able to reach a unanimous position on all of the counts. 5 Because of the circumstances which had arisen, I asked the jury to answer a series of questions. Those questions, and the answers given to them, made it apparent that the jury had, in fact, reached a unanimous position on a number of counts in the indictment. It was also apparent that they had been unable to reach an agreement, that is, a unanimous agreement, on all the counts in the indictment. Further, the answers made it clear that it was unlikely that the jurors would reach a unanimous verdict after further deliberation. 6 The subsequent course of events brought about a situation where the jury announced its verdict on each of the perjury/false swearing charges. These were unanimous verdicts. Those verdicts having been taken, it became clear that the count on which the jury were unable to agree was count one in the indictment, the murder charge. It seemed unlikely that the jury would be able to reach a unanimous verdict in relation to the murder charge, even if allowed the time for further deliberation. 7 The consideration of all of these circumstances led me to these conclusions: first, I was satisfied that a reasonable period, being not less than eight hours, had passed, having regard to the nature and complexity of the criminal proceedings in the trial. Accordingly, I was satisfied that the requirements of section 55(2)(a) of the Jury Act 1977 had been met. Secondly, I was satisfied, in terms of section 55F(2)(b), that is was unlikely that the jurors would reach a unanimous verdict after further deliberation. The foreman of the jury had been required to give evidence on oath as to this matter. His evidence fully supported the written answer given by the jury response to which I have earlier made reference. 8 It is clear from a reading of the relevant section of the Jury Act 1977 that the court cannot open the pathway to a verdict which is not a unanimous verdict, unless it is fully satisfied as to each of the preconditions to which I have made reference. I was satisfied that each of those preconditions had been met. Consequently, I informed the parties and the jury that the point had now been reached in the trial where it was open to the court to take a verdict which was not a unanimous verdict in the trial. 9 It remains only to state that, shortly after 2:15pm on 13th of December 2010, I received a note from the jury indicating that a verdict of count one had been reached. The jury were assembled and, in the presence of the accused, the foreman of the jury announced that the verdict of the jury was that the accused was guilty of murder.