R v Keli LANE [No 24] [2011] NSWSC 72

Supreme Court New South Wales

Medium Neutral Citation: R v Keli LANE [No 24] [2011] NSWSC 72 Hearing dates: 1 December 2010 Decision date: 24 February 2011 Jurisdiction: Common Law - Criminal Before: Whealy J Decision: (1) Lies may not be left as evidence of guilt (2) Evidence is to be limited (s 136 Evidence Act 1995) Cases Cited: Edwards v R (1993) 178 CLR 193 at 210 Category: Procedural and other rulings Parties: Crown Keli LANE (Accused) Representation: 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) File Number(s): 2009/256171

REASONS FOR DECISION

The "reason" for the lies - consciousness of guilt 1HIS HONOUR: On 1 st December 2010, immediately after the conclusion of the final addresses by counsel, it became necessary to decide a particular issue as a matter of urgency. It was urgent for three reasons. First, because my summing-up to the jury was scheduled to commence the following day, the 2 nd December 2010 (counsels' addresses had run over seven days, and it was clearly undesirable to delay the commencement of the summing-up). Secondly, the issue was an important one, and the decision had the capacity to effect a core part of the directions to the jury. Thirdly, the Crown had, in a subtle manner, indicated it might wish to test the ruling, if it proved to be unfavourable to the Crown (see transcript page 3256). 2Later that day, I notified the parties by email that, with some serious misgivings, I had ultimately determined to accept the Crown argument. 3The point at issue was a simple one. To understand its significance, however, it is necessary to give a brief history. During the trial, the Crown had indicated that it wished to rely on three lies as evidence of consciousness of guilt. These "lies" may be summarised as follows:- (a)The accused sent a fax to Virginia Fung - an Anglicare worker - on 25 th October 1999, in which the accused stated that she had handed her baby Tegan "to a couple from Perth". (b)In an interview with Detective Kehoe in 2001, the accused stated that Tegan had been handed over to Andrew Morris, the natural father. (c)In recorded interviews with Detective Richard Gaut in 2002, the accused stated that she handed the child over to its natural father, and that his name was Andrew Norris. 4The Crown also wished to rely on the fact that the Morris/Norris lies were repeated, in one form or another, on several later occasions. 5In a decision given on 3 rd November 2010, I determined, in the exercise of my discretion, that the Crown should not be permitted to leave these lies as evidence of consciousness of guilt, and I foreshadowed making an order under the Evidence Act limiting their use to the issue of credibility. Before that order was made, however, the Crown brought an interlocutory appeal against my decision. The Court of Criminal Appeal (McClellan CJ at CL, Simpson J and Howie AJ) heard the appeal as a matter of urgency. On 16 th November 2010, the Court allowed the appeal, and vacated the ruling made on 3 rd November 2010. The Court did not give full reasons at that stage, but issued a document which contained a "brief statement" in relation to the issue. This "statement" confirmed a number of matters, including the proposition that it would be necessary for the Crown to establish each of the three lies beyond reasonable doubt. There had been no dispute before me that this was the case. The reason why each of the lies had to be proved beyond reasonable doubt, as I understood it, was that, if there were a reasonable possibility that any of the lies was true, the accused would have been entitled to be acquitted in relation to the murder charge. 6In addition, the Court indicated that in relation to each lie, or to its repetition, the jury would have to be directed to consider whether there was a reason for telling the lie, other than because it revealed a consciousness of guilt of murder (see paragraph 3 of the "brief statement"). 7So far as I am aware, the Court of Criminal Appeal has not, as at this date, delivered its reasons. 8In its final address to the jury, the Crown relied on the three lies as evidence of consciousness of guilt. It also relied upon the repetition of the Morris/Norris lies as evidence of consciousness of guilt. The Crown bluntly submitted to the jury that the reason the lie was told, in each case, was that the accused wished to conceal the fact that she had murdered her daughter Tegan. This was consistent with the Crown opening, which had suggested that the same lies had been told "because the truth is too dreadful to admit, that is the accused got rid of her baby daughter, Tegan, by killing her and disposing of her body." 9These submissions by the Crown led to the argument which required the giving of an urgent decision on the afternoon of 1 st December 2010. There were two issues. The first was to determine what should be said to the jury as to the possible reasons for the telling of each lie (apart from a realisation of guilt). In the end, there was substantial agreement between the parties on this point, and their respective positions are, I believe, reflected in the directions which appear in the summing-up. The second issue, however, could not be agreed. This was the question as to whether the jury should be instructed that it was necessary for the Crown to prove beyond reasonable doubt that the reason for the telling of each lie was because the accused realised her guilt of the murder charge, and could not otherwise innocently explain what had happened to the baby. The Crown argued that it was not necessary to establish the reason for the telling of each lie beyond reasonable doubt. The defence took the opposite stance. 10The Crown argued that each lie, or, for that matter, all of the lies taken together, did not prove guilt of the murder charge. The Crown argued that the "brief statement" issued by the Court of Criminal Appeal reinforced that this was so. Finally, the Crown argued that the decision of the High Court in Edwards v R (1993) 178 CLR 193, made it clear that the Crown did not, in this trial, have to prove the consciousness of guilt aspect beyond a reasonable doubt. The Crown argued vehemently that the jury should not be told that they could not use each lie for the purpose relied on by the Crown, unless they were satisfied beyond a reasonable doubt that it was a consciousness of guilt lie. 11In Edwards v R (in the joint judgment of Deane, Dawson and Gaudron JJ), their Honours had said at p 210:- "Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt." 12In the end, I accepted the three arguments advanced by the Crown. However, I did so, as I have said, with some serious misgivings. It is appropriate for me to briefly state why I was troubled by the conclusion I felt impelled to reach. 13The Crown had been content for me to tell the jury (as I later did) that the telling of any of these three lies, or, for that matter, a repetition of any of them, could not, of itself, prove guilt of the murder charge. The Crown was content that I should tell the jury that the lie in each case could simply be relied upon as part of the Crown's overall circumstantial case. However, it seemed to me that this direction was effectively diluted, if not entirely dissipated, by the way in which the Crown had suggested to the jury that they might use each lie. In other words, the Crown had not merely put each lie before the jury as a fact in its circumstantial case that might or might not strengthen the prosecution submissions. It had effectively put to the jury that they would conclude that the lie was told deliberately and intentionally to conceal the fact that the accused had murdered her daughter and disposed of the body. While, on the one hand, the jury were told that each lie was no more than part of the body of evidence to be considered by the jury in reaching their conclusion, the forceful manner in which the Crown had put its submission was likely, it seemed to me, to satisfy the jury that, if each lie implicated the accused in the murder of her child, it did so precisely because she realised that she had, in fact, murdered the child. If that were so, the jury might convict on basis of the lies alone. Moreover, it seemed to me that there was a possible element of circular reasoning involved in looking at all the evidence to determine whether the lie was told because of a realisation of guilt, and then using the lie as a circumstantial piece of evidence in proof of guilt. The Court of Criminal Appeal's decision put paid, however, to this view of the situation. 14Because of these misgivings, it seemed to me that little, if any, damage would be done to the Crown case if it were required to prove beyond reasonable doubt that each lie was told from a consciousness of guilt. If there were a reasonable possibility that the lie was told for some other reason, then the jury might have been instructed that the lie could not be used in the way the Crown sought to do. 15The Crown, however, would not agree. It adhered to its view of the situation, and would not countenance the giving of a direction in the form I favoured. As these reasons indicate, I ultimately accepted the correctness of the Crown arguments, having regard especially to the decision of the Court of Criminal Appeal, and the observations made in Edward's case . I thought it appropriate, however, to express the serious misgivings I had in relation to the matter and my reasons for the misgivings. 16These then are my reasons for the decision communicated by email to the parties on the 1 st December 2010.