Supreme Court New South Wales Medium Neutral Citation: Keli LANE v Regina [2013] NSWSC 146 Hearing dates: Thursday 28 February 2013 Decision date: 01 March 2013 Jurisdiction: Common Law - Criminal Before: Hoeben CJ at CL Decision: Bail refused Catchwords: BAIL - conviction for murder - appeal pending in Court of Criminal Appeal - s30AA Bail Act 1978 - bail refused. Legislation Cited: Bail Act 1978 (NSW) Cases Cited: Carney v R; Cambey v R [2011] NSWCCA 223 R v Antoun [2005] NSWCCA 270 R v Rugari [2001] NSWCCA 64; 122 A Crim R 1 R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 R v Wilson (1994) 34 NSWLR 1 United Mexican States v Cabal & Ors [2001] HCA 61; 209 CLR 165 Wood v R [2012] NSWCCA 21 Category: Principal judgment Parties: Keli Lane - Applicant Regina - Respondent Crown Representation: Counsel: Mr W Terracini SC/Mr J Trevallion - Applicant Ms JA Girdham SC/Mr H Baker - Respondent Crown Solicitors: Archbold Legal - Applicant Director of Public Prosecutions - Respondent Crown File Number(s): 2009/256171 JUDGMENT 1HIS HONOUR: Background The applicant was tried before Whealy J and a jury on an indictment containing four counts: the murder of her newborn daughter Tegan, and three counts of perjury relating to false statements in affidavits, filed in the Equity Division of the Supreme Court in adoption proceedings for two of her children. The trial commenced on 9 August 2010 and concluded on 13 December 2010 with verdicts of guilty on each count except that in relation to the perjury counts, the applicant was found guilty of the alternate count of "false swearing". The applicant was sentenced on 15 April 2011 as follows: For each of the "false swearing" counts - a fixed term of imprisonment for 9 months, to date from 13 December 2010. For the count of murder, imprisonment with a non-parole period of 13 years and 5 months, to date from 13 December 2010 and to expire on 12 May 2024, with a balance of term of 4 years and 7 months, to expire 11 December 2028. 2The total effective sentence was that imposed for the murder charge, since the other sentences were entirely subsumed in that sentence. The earliest date on which the applicant can be released to parole is 12 May 2024. 3By Notice of Appeal and Notice of Application for Leave to Appeal (Conviction only) dated 20 December 2012 the applicant has notified eight grounds of appeal. Written submissions have been filed on behalf of the applicant in support of her appeal and in support of her application for bail. It is anticipated that the appeal will be listed for hearing in July of this year. Application for Bail 4The applicant has applied for bail, pending the outcome of her appeal. That application was heard by the Court on 28 February 2013. Bail was refused, with reasons to be handed down at 12pm 1 March 2013. These are the reasons for the refusal of bail. 5In its written submissions, the Crown acknowledged that the applicant was granted bail following being charged with the offences and remained on conditional bail during the criminal proceedings up to the date when the jury returned its verdicts. Affidavit material before the Court indicated that were bail to be granted, there were sureties available who would be able to provide substantial sums of money to ensure that the applicant complied with any bail conditions imposed on her. 6The difficulty for the applicant was not satisfying s32 of the Bail Act 1978 (NSW), which sets out the usual requirements to be met by a person applying for bail, but satisfying the requirement in s 30AA of that Act. 7Section 30AA relevantly provides: "30AA Notwithstanding anything in this Act, if: (a) an appeal is pending in the Court of Criminal Appeal against: (i) a conviction on indictment, or (ii) a sentence passed on conviction on indictment, or (b) ... bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail..." 8The meaning of that section was considered in R v Wilson (1994) 34 NSWLR 1. The parties agreed that this decision accurately stated the applicable law as to what constituted "special or exceptional circumstances" after an applicant had been convicted. In that case Kirby P (as his Honour then was) with whom Sheller JA agreed said at p6: "However, it is enough to say that I think it falls short of the special or exceptional circumstances that are required. In R v Waters (1990) 9 Petty SR 4016 Badgery-Parker J expressed the opinion that in an application for bail, where a person after conviction stands for sentence, it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed. The applicant must be most likely to succeed. This is because of the obstacle which the legislature has put in the way of the grant of bail by requiring the demonstration of special or exceptional circumstances." 9In the same case, Hunt CJ at CL said at p 7: "In R v Smith (Court of Criminal Appeal, 18 May 1993, unreported) I said (at 2) that, bearing in mind what was said in R v Southgate, it has to have an extraordinarily high prospect of success before a grant of bail could even be considered on a bail application. Where the prospects of success on the appeal are put forward as a special circumstance, I said (at 2-3), what must be established is a grant of appeal which is certain to succeed - and one which can be seen without detailed argument to be certain to succeed. It is not sufficient to show a merely arguable ground of appeal, or even one which has a reasonable prospect of success. Agreement was expressed with my views in R v Olivier (Court of Criminal Appeal, 15 September 1993, unreported) at 60 by Finlay J (with whom Handley JA and Sheller JA agreed)." 10While some doubt was expressed in R v Antoun [2005] NSWCCA 270 at [14] as to the correctness of the interpretation by Hunt CJ at CL, the approach of Kirby P has not been subject to such criticism. His approach is in line with that of the High Court as expressed by the plurality (Gleeson CJ; McHugh and Gummow JJ) in United Mexican States v Cabal & Ors [2001] HCA 61; 209 CLR 165 at [42] where their Honours said: "However, a very strong case is required for the grant of bail in a criminal case before the Court has granted special leave to appeal." Accordingly, I have approached the bail application in this matter by reference to the test proposed by Kirby P, i.e. an applicant must show that he or she is "most likely to succeed" in the appeal before bail can be granted pursuant to s30AA of the Bail Act. 11Although the applicant will be relying upon eight grounds in her appeal, in her application for bail she relied on only two grounds which she submitted had high prospects of success. Ground 1 - That the trial judge erred in failing to leave the alternative count of manslaughter to the jury. 12In order to establish that this ground of appeal was most likely to succeed, the applicant relied upon the following propositions which were set out by the Court of Criminal Appeal in R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 at [75] where the Court (Hunt AJA, Buddin and Hoeben JJ) said: "(1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is "viable"). (3) If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury -notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury. (4) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law. ..." 13The applicant also relied upon that which the Court of Criminal Appeal said in Carney v R; Cambey v R [2011] NSWCCA 223 (Whealy JA; James and Hoeben JJ) at [25]: "25 The expression "a viable case of manslaughter to be left to the jury" (as stated by Gleeson CJ and Callinan J) is a useful shorthand expression expressing the correct approach to be taken. Similarly, the question is often asked "was manslaughter open to be left". That too is a useful shorthand manner of approaching the issue. While we consider that the correct position is more akin to that urged by the Crown on the present appeal, namely whether a verdict of manslaughter was "reasonably open" on the evidence, we would prefer to state the proper approach (based on Hayne J's statement) in the following terms:- "A viable case of manslaughter means that it was open on the evidence led at trial for the jury to conclude that the appellant was not guilty of murder but was guilty of the alternative charge of manslaughter."" 14The applicant submitted that it should have been appreciated by the trial judge that as well as the submission by the Crown that the child was deliberately killed and that put forward by the defence, that the child was handed over to another person, there was another available scenario. This was that, if the child were dead, her death could have been occasioned by an unlawful and dangerous act, such as accidental suffocation by concealment, dropping the child, shaking the child, smacking the child, slipping and falling on the child, or something of that kind. As a result, an error of law had occurred because the applicant had lost a real chance of manslaughter being found against her, rather than of murder. 15The difficulty I have with the submission is that the possibility of accidental death was put to the jury by the defence, as well as the primary case that the child had been handed over to another person. There was simply no evidence in the trial of any dangerous or unlawful act such as would amount to manslaughter. R v Kanaan and R v Carney on which the applicant relied, require that there be some evidence to support a verdict of manslaughter before there is an obligation to leave that issue to the jury. 16The applicant's riposte was that in the absence of a body and any evidence as to how the child met her death, there was in fact no real evidence of murder, and in that regard there was just as much evidence to justify a verdict of manslaughter as there was of murder. This is a novel proposition, which has not to my knowledge been previously raised in such a context. It is certainly not a matter upon which I can or should make a decision in a bail application. This is clearly a matter for detailed argument and submission in the appeal. 17Accordingly, I am unable to find that this ground of appeal is "most likely to succeed". Ground 2 - The trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor, in particular that he reversed the onus of proof in his closing address by positing a series of questions that he stated the defence had to answer. 18In support of this ground the applicant relied upon the conduct of the Crown Prosecutor at trial in putting to the jury ten questions in his closing address, which he said were "particularly pertinent issues to the resolution of the case". The ten questions posited were: "Firstly, why did the accused give eight different versions of what happened to Tegan? Secondly, why did the accused add Tegan to her Medicare membership at the Auburn Hospital if she was about to hand over Tegan to anyone else? Thirdly, why did it take the accused four hours to get home from the Auburn Hospital to Fairlight, either directly or via Venus Street? Fourthly, why did the accused tell Detective Kehoe and initially Detective Gaut that she would not be able to find Andrew Norris/Morris' unit in Balmain when she so easily found it in May 2003? Fifthly, why did the accused wait until May 2003 to look for Andrew Norris/Morris' unit in Balmain? Sixthly, why did Keli Lane lie to Detective Gaut about Lisa Andreatta of Brisbane knowing Andrew Norris and about the Tegan birth? Seventhly, why did the accused lie to Detective Gaut about looking for Andrew Norris/Morris' mobile phone number of Venus Street? Eighthly, why did the accused lie to Detective Gaut that her circle of friends had changed since the time she had known Andrew Norris/Morris? Ninthly, is it just a coincidence that there are so many similarities between Andrew Norris/Morris and AW? Tenthly, why would a natural father of a child not lodge the child's birth registration forms?" 19The applicant also relied upon the introductory comment by the Crown Prosecutor when passing these questions to the jury. "I have said to you that I don't know exactly what my friend is going to say in his address, but what I would ask you to do is to bear in mind certain questions while you are listening to Mr Chapple's address and see what he says about these particular issues which we would submit to you are particularly pertinent issues to the resolution of the case." 20The applicant submitted that this approach by the Crown Prosecutor gave rise to the error identified in R v Rugari [2001] NSWCCA 64; 122 A Crim R 1 at [35] and [57]. The applicant submitted that asking rhetorical questions of this kind reversed the onus of proof and it was not appropriate for these matters to be put to the jury in that way. 21The applicant also relied upon the observations of McClellan CJ at CL in Wood v R [2012] NSWCCA 21 when commenting on similar conduct where fifty questions had been put to the jury in the Crown Prosecutor's closing address. There his Honour said: "605 The fundamental problem with the course taken by the prosecutor was that both generally and with respect to particular questions the prosecutor reversed the onus of proof. Asking questions, even in a rhetorical manner, and inviting the jury when considering its verdict to consider whether the applicant had provided satisfactory answers to the questions was an impermissible course for the prosecutor to follow." 22The applicant accepted that the trial judge had in his summing up, made reference to this list of questions and had warned the jury that they should be careful not to reverse the onus of proof. The applicant submitted that this direction by the trial judge was not sufficient to cure the damage brought about by the conduct of the prosecutor, particularly since these ten questions had been raised towards the conclusion of his closing address. 23There is a significant difference between the conduct of the Crown Prosecutor in Rugari and that which occurred here. In Rugari the closing address to the jury was replete with disparaging comments about the conduct of the trial by defence counsel and sarcastic remarks concerning the evidence of defence witnesses. No such conduct occurred here. 24The comparison with the questions posed to the jury in Wood is also not apposite. In Wood the complaint on appeal was that the fifty questions, or series of questions, incorporated matters which were not founded in the evidence and that the answers might be decisive as to the appellant's guilt in circumstances where the issues to which the questions were directed were speculative and/or irrelevant to the issues of trial. A number of the questions related to the presence of a third person, whose presence and identification was contentious. 25In this case the questions were firmly grounded in the evidence and were relevant to issues properly raised in the trial. The real objection to the questions was that, of themselves, they reversed the onus of proof. If that proposition is made out (and it should not be thought that I am necessarily of that opinion), it would be necessary to have regard to the whole of the Crown's final address and much other evidence led at trial. This is because no objection was taken at trial to this part of the Crown's address. If no objection was taken, an appellate court might well infer that in the context of the trial it was not prejudicial to the appellant's right to a fair trial. It would usually be expected that if part of the Crown's address were thought to give rise to a risk of a miscarriage of justice, defence counsel would say so and seek a direction from the trial judge to the prosecutor to correct the comments. 26There is a further distinction between this case and Wood in that here the trial judge gave clear and emphatic directions about the questions and the onus of proof. His Honour did this of his own motion. His Honour's direction was in the following terms: "The Crown then concluded its submissions by asking you to bear in mind a number of questions when you were considering the defence argument. I will not go through them all but quickly, they were to this effect: Why did the accused give eight versions? Why add Tegan's name to the Medicare card? Why take a number of hours to get home? Why tell Kehoe that she could not locate the unit when later it was found relatively easily? Why were lies told about Lisa Andreatta, the search for Andrew's mobile, the circle of friends changing? I will not go through them all but, as I say, in a sense these questions do touch upon the central issues I have identified for you. They, of course, are not the central issues, but in turn they may be matters that you are perfectly entitled to consider. I think you should be careful to remember that they do not impose some type of onus on the defence to answer them all. The defence does not have an onus of proof. They are more matters for your consideration in the light of all of the evidence. Of course, as I will point out to you when we come to the defence submissions, a number of them were the subject of answer or response or submission, and it will be a matter for you what you make of them. The point I am making is that the Crown does not, by asking the question, alter or change the onus of proof which remains always on the Crown." (SU 104) 27It is not appropriate for a judge hearing a bail application to carry out the sort of detailed analysis of the transcript and evidence necessary to properly evaluate this ground of appeal. That is for the Court of Criminal Appeal when this matter comes before it. 28On the limited material before me, I am not satisfied that this ground of appeal is "most likely to succeed". 29It follows that the applicant has not met the requirement imposed by s 30AA of the Bail Act. Bail is therefore refused. ********** 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. Decision last updated: 01 March 2013