R v Keli LANE

PARTIES : Regina (Crown) Keli LANE (Accused)

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)

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

JUDGMENT - Re application by the Crown to use evidence as tendency evidence

1 HIS HONOUR: In June and July 2010, the Crown gave Tendency Notices to the defence indicating that it proposed to rely upon tendency evidence at trial. The nature of the first two aspects of the Tendency Notices were dealt with during argument. The Crown had sought to place reliance upon this tendency evidence in the following ways:

First, to prove that in each of the three cases where the accused had a live birth at the end of an unplanned pregnancy, she adopted a solution which resulted in her permanently being rid of the responsibility for the custody and care of a child, as opposed to a method which only temporarily relieved her of that obligation, thereby avoiding any risk that family, friends or colleagues would ever find out about these babies. Secondly, to prove that in each of the three cases where she gave birth to a baby, she deliberately fabricated material relating to the paternity of the child, so as to prevent any contact by the authorities with the real father and to keep the pregnancy and birth a secret from her family, friends and colleagues. 2 Following argument, I indicated I had come to the conclusion in relation to these two aspects of the tendency evidence that the evidence could properly be classified as tendency evidence and that, either by itself or having regard to other evidence to be adduced by the Crown, the evidence was significantly probative in relation to the issue as to whether the accused handed her baby Tegan to a man named either Andrew Morris or Andrew Norris, the natural father of the child. I also indicated my view that the provision of a suitable direction would eliminate any possibility of unfair use of the material. 3 I reserved my decision in relation to a third category of evidence which I will deal with later in these reasons. In that section of the decision, I will set out the statutory tests and principles in more detail. In relation to the first two aspects of the Tendency Notices mentioned above, my reasons were as follows:

First, the evidence relied on by the Crown in the Tendency Notices is already before the jury without objection. Secondly, the jury themselves, unless directed otherwise, will be likely to reflect upon the evidence in an inferential manner, that is to employ tendency reasoning. Thirdly, as will appear, both parties wish to make submissions to the jury about the utility of this evidence. The Crown wishes to submit to the jury, in relation to this evidence, that it demonstrates a way of thinking and acting that was likely to have influenced the accused's behaviour when Tegan was born. Unlike the other children, no arrangement, however, had been made for the adoption of Tegan. The Crown will argue in that circumstance that it is likely the accused would not have chosen to hand the baby over to the natural father as the defence case asserts. In other words, the Crown wishes to use the tendency evidence to rebut the defence case. That, in my view, is an appropriate use of tendency evidence. 4 On the other hand, Mr Chapple SC, for the accused, has indicated throughout the trial, and especially in his opening, that he will argue that the manner of the accused's handling of the birth of her three other children demonstrates that she is a person who has always acted in the best interests of her children and, far from taking any steps to harm any of her children, has acted benevolently in their interests in arranging their upbringing. This is likely to have been the situation in the case of Tegan. Thus, the tendency evidence is said to support the defence case. 5 It will be seen that each party will wish to rely on tendency reasoning. Consequently it is quite unrealistic to suggest that the evidence lacks significant probative value. Each party takes a very different view of the tendency displayed by the relevant evidence, and that is a perfectly natural situation in a trial which has complex circumstantial issues. The evidence may well be capable of suggesting different inferences, depending upon whether the argument proceeds from the Crown or the accused. 6 Finally, I was of the view that the prejudice which Mr Chapple fears will simply not eventuate, provided a firm direction is given to the jury to make it clear to them that the evidence does not suggest any criminal or unlawful propensity. The jury will be told they cannot reason that if either of the tendencies is established that it follows that the accused must have murdered her child. The jury must be plainly told that they cannot reason that because, in the situation she found herself, the accused could not adopt out Tegan, therefore she must have murdered her. The evidence is not capable of supporting such an inference, and it is not tendered for that purpose. It is simply a stepping-stone in the Crown's circumstantial case. Whether it has any value or not will be a matter for the jury. No doubt a suitable direction will have other safeguards in it as well, to prevent the evidence being used in a manner that is unfairly prejudicial and to preclude impermissible reasoning. I have asked senior counsel for the accused to provide me with a draft direction to address the issue. 7 As the authorities stand, matters of tendency have to be proved beyond reasonable doubt and I have raised this situation with the parties as well. It seems likely, however, that the basic facts relied on by the Crown will not be seriously in contest. A third tendency? 8 The tendency notices raised, however, a third matter. This is the further proposition that the Crown sought to rely upon certain aspects of the evidence as "tendency evidence": To draw attention to the remarkable similarities between the two paternal identities nominated by the accused as the fathers of Tegan and Aaron Ji, namely Andrew Morris/Norris and Aaron Williams, with a view to proving that they are both completely fictitious persons. 9 The tendency notices outlined, firstly, evidence relating to statements by the accused as to the natural father of Aaron Ji. Originally, the accused had stated that Duncan Gillies was the father of this child. However, she later admitted that this was not so. She then had said that the father was a person named Aaron Williams who worked at Barclay's Bank in London. She fell pregnant to him in London. She described him as having a university degree. She said she had met him "maybe six times". She was unable to provide contact details for him. She maintained that when she told Aaron she was pregnant, he did not have any further contact with her. 10 This evidence is sought to be relied on by the Crown as tendency evidence to establish that Andrew Morris/Norris is "a complete fiction". The Crown will submit that the accused had "invented" Aaron Williams and that the story about him can be shown to be untrue because the accused was not, herself, living in London at the time of conception. Furthermore, the father of Aaron Ji has been shown to be a man whose name is [NAME RESTRICTED]. He was a local boy from Manly who was a friend of the accused's younger brother. He has given evidence that he had a 4 to 6 month relationship with the accused in Sydney around the time she conceived Aaron. He was unaware that she became pregnant and later gave birth. Crown arguments 11 The Crown argues that the "invention" of Aaron Williams "as the father of the third child" may be relied upon as tendency evidence to prove a fact in issue, namely that the person the accused has nominated as the father of Tegan is "a complete and utter fabrication". The Crown argues that the accused has a tendency to invent a completely fictional person as the natural father of her child when pressed for answers about the child's paternity by those in authority. Further, the Crown argues that the evidence of the invention of "Aaron Williams" establishes that the accused has a particular method of operation, namely to invent completely fictional fathers to those in authority when pressed for answers about paternity. Finally, the Crown argues there are a number of parallels between the stories the accused told Anglicare about "Aaron Williams" and the story she told the police about "Andrew Norris". It is not necessary to detail these similarities at this stage. There are, it might be said, both similarities and dissimilarities. 12 The Crown argued that the relevant evidence has significant probative value given the importance, in the Crown case, of proving that Andrew Norris is a fictional person. The defence case is that the accused handed Tegan over to the natural father, a person called Andrew Norris/Morris. Moreover, the Crown proposes to rely upon the assertions by the accused relating to Andrew Norris as showing consciousness of guilt on her part. The Crown argues that the jury may use the evidence concerning "the lie" about Aaron Williams to conclude that Andrew Norris is not a real person. The Crown next would argue that it would then be open to the jury to reject the accused's version that she gave Tegan away to a person in the carpark at Auburn Hospital. The clear inference, the Crown says, would be open that nobody had taken the baby from her, and consequently something adverse to the baby must have happened between 11am and 3pm on the 14th of September when Tegan was in the sole custody of her mother. The jury will be asked to infer that the accused was solely responsible for the child's disappearance. 13 Finally, the Crown argues that the probative value of the evidence substantially outweighs any prejudicial effect. The Crown submitted that there was no improper prejudicial effect this evidence might generate, and there was no way in which the jury could misuse the evidence. Defence arguments 14 Mr Chapple SC on behalf of the accused made a general submission that, as all the evidence in question is already before the jury as context or background evidence, there is no purpose in its being classified or used as tendency evidence. He argued that the evidence would not have significant probative value (as opposed to its normal value as evidence placing the birth and post-birth arrangements of all three children into context). In relation to s 101 Evidence Act 1995, the defence argues that, even if the jury were to decide that Andrew Norris/Morris does not exist, that does not, or would not, establish the murder of Tegan, because there are a number of reasonable hypotheses otherwise available. The defence is concerned as to the prejudicial effect on the accused's fair trial because the jury might wrongly reason that if Andrew Morris does not exist, and if they were to find that the accused's evidence in this regard was to be disbelieved, they would, as I say, wrongly reason from that situation that the accused had murdered Tegan. The defence will contest the Crown's right to leave the Andrew Norris explanation as a lie evidencing consciousness of guilt. The way in which the defence submissions addressed the tendency issue was to suggest that the prejudice which has to be considered is the possibility, or probability, that the jury would treat an intermediate fact in issue - the existence of Andrew Norris/Morris - as the ultimate issue, that is whether the accused murdered her daughter. Mr Chapple argued that the prejudicial effect of such tendency evidence would be extremely high and could not be cured by directions. 15 At a less generalised level, Mr Chapple SC also examined the Crown arguments concerning "two fictitious fathers". Once again, senior counsel made the point that the evidence is already before the jury and that there is nothing to stop the Crown, as I understand it, from pointing out the similarities in the events, even if they were not to be characterised as tendency evidence. Secondly, Mr Chapple argued that the similarities suggested between Aaron Williams and Andrew Morris/Norris are sufficiently generic that it would be quite likely that the description might fit two different men. The accused herself had had relationships with other men of similar background to each other, men who grew up in the Manly area and who, for example, played rugby union for the Manly club. Thirdly, he pointed out, once again, that the "lie" involving Aaron Williams was in the context of providing for the safe upbringing of her third child. This was to be done by the lawful means of the adoption process. Any "tendency" might properly be viewed as a benevolent one, and unlikely to support a criminal intent or propensity in relation to Tegan. 16 The principal argument advanced by Mr Chapple was this: he submitted that the significance of the proposed tendency evidence sought to be relied on by the Crown is that, even if the Crown were to establish that there were two fictitious fathers on the basis of tendency, the probative value of the evidence would be outweighed because the jury would be likely to adopt impermissible reasoning. He said in their reasoning, in a case which is notable for its absence of evidence of the alleged murder, they would mistakenly come to the view that the reality of the existence of Andrew Morris/Norris ought to be treated as the ultimate fact in issue in the trial. It would be likely to determine, without more, the issues at trial. Tendency evidence: the statutory provisions and general principles 17 The admission of tendency evidence is governed by the Evidence Act ss 97 and 101. Those sections provide, relevantly:

97 (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. … 101 (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. 18 There is little, if any, dispute between the parties as to the correct principles to be applied in evaluating the admissibility of evidence as tendency evidence. It needs to be borne in mind, however, that the relevant evidence is already before the jury in this case. The tasks confronting the Court therefore are, first, whether the evidence may be classified as tendency evidence; secondly, whether it ought to be excluded from use in that way because of the provisions of s 101; thirdly, if the evidence is to be allowed as tendency evidence and its use in that way confirmed, what, if any, directions should be given to the jury to prevent any impermissible reasoning or improper prejudicial use of the material? 19 It is clear law that evidence that a person has or had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, the person acted in a particular way or had a particular state of mind. The section proceeds on the basis of inferential reasoning that people behave consistently in similar situations. The evidence is used to provide a foundation for an inference to that effect. As Simpson J (with whom McClellan CJ at CL agreed) in R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 stated: - Tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind). 20 It is also common ground between the parties here that, as a general rule, tendency evidence is placed before a jury as evidence tending to prove the guilt of the accused. Evidence, however, may be offered simply to show a tendency to act in a particular way. It is not necessary that the tendency be to commit a particular crime or, for that matter, to commit a crime at all. Section 97 applies to both civil and criminal proceedings. It represents a fresh start in relation to the issues involved in the categories of evidence known historically as propensity evidence and similar fact evidence. To assess whether evidence is capable of being admitted as tendency evidence, it is first necessary to consider the issues at trial and the likely probative force of the evidence, having regard to those issues (Pfennig v R (1995) 182 CLR 461). Probative value is defined in the Evidence Act in the following terms: - Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Tendency evidence is itself defined in the Dictionary but the definition is of little assistance. 21 The questions which arise under s 97 are these: could the jury infer that the particular evidence, either by itself or having regard to other evidence to be adduced by the Crown, shows a tendency to act or think in a particular way in a given situation? Would such an inference be open for the jury to draw? Secondly, having regard to the issues at trial, would the inferences available from the evidence be of importance or of consequence in assessing the probability or otherwise of the issues or any of them? (Facts in issue, in the context of this discussion, mean more than the ultimate facts in issue - that is, they can extend beyond the ingredients of the offence with which the accused is charged (Cornwell v R (2007) 231 CLR 260). Evidence can be of significant probative value even where the available inferences are capable of pulling in opposite directions. Indeed, its significance may be enhanced by that very possibility. 22 In R v Ford [2009] NSWCCA 306, Campbell JA (with whom Howie and Rothman JJ agreed) said at [125]:- In my view there is no need for there to be a "striking pattern of similarity between the incidents". All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged. In my view, it meets that test.

I would simply add that tendency evidence that is capable of suggesting that it is unlikely, to a significant extent, that the accused committed the offence would also plainly meet the statutory test. 23 If evidence has been properly classified as tendency evidence and has passed the hurdle in s 97, it is next necessary in a criminal trial to assess whether the evidence should be excluded, having regard to the provisions of s 101 Evidence Act. The test is whether the admission of the evidence involves a risk of an unfair trial (R v RM [2005] NSWCCA 413; R v Ford at [58]). As McHugh J stated in Pfennig (1995) 182 CLR 461 at [40] 528-9:- The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. 24 In HML v R; SB v R; OAE v R (2008) 235 CLR 334, a case of relationship evidence, Gleeson CJ remarked that the reason for exclusion of propensity evidence was not related principally to its relevance or irrelevance, but rather because of its prejudicial effect, that is the danger of improper use of the evidence. Gleeson CJ stated:- "It is the risk that evidence of propensity will be taken by a jury to prove too much that the law seeks to guard against." 25 The statutory test is that the evidence must be excluded unless its probative value substantially outweighs any prejudicial effect it may have on the accused. Resolution of the issues 26 It is necessary to repeat once more that the relevant evidence is already before the jury. The Crown will wish to argue that the accused has a tendency to invent a completely fictional person as the natural father of one of her children when pressed for answers about paternity by those in authority. Secondly, the Crown will wish to argue that the evidence of the "invention" of a man called Aaron Williams suggests that the accused had a particular method of operation which she used when it became necessary to tell the police the name of the person she had given Tegan to after she had left the hospital. These two arguments are very similar and one adds little to the other. The third limb of the Crown's argument is to suggest that there are remarkably similar parallels between the characteristics of "Aaron Williams" and "Andrew Norris". The Crown is really saying that they are each the same person under a different guise, but that both are fictional characters. 27 Mr Chapple, I apprehend, will question whether such a line of reasoning can seriously be adopted. He will no doubt point to the fact that, if it be a lie, the invention of Aaron Williams occurred in an unusual situation where the accused was urgently endeavouring to finalise the adoption of her third child. She had originally claimed that the father was Duncan Gillies and it is clear that she had in mind that the authorities would be unlikely to make contact with him. When that version of paternity was "exploded", she was placed in a difficult position of determining who to identify as the father. If she had nominated the true father, [NAME RESTRICTED], this would have prompted the authorities to contact that man. This would have meant that the birth of the third child would be likely to move into the public arena so far as her family and friends were concerned. After all, [NAME RESTRICTED] was a very close friend of her younger brother. It is understandable, in that urgent situation, that the accused would endeavour to "invent" a person who could not be contacted for the two obvious reasons related to her predicament at the time. First, there was the need to keep the birth from her family and friends. Secondly, and no doubt importantly, there was the pressing need for the adoption to proceed to its conclusion. 28 As I say, Mr Chapple will no doubt contrast this situation with the very different situation that faced the accused when she was asked by the police, many years after the birth of Tegan, what she had done with the child. Of course, Mr Chapple has not outlined all the arguments that he will advance before the jury in relation to contesting the suggested inferential reasoning sought to be adopted by the Crown. The observations I have made probably do little justice to the extent of the arguments that he will undoubtedly make. 29 There is really very little difference between the parties in relation to the first point to be decided. Both parties accept that the evidence is of quite important significance in relation to the issue as to whether Andrew Norris is a fictitious person. In those circumstances, there can be little doubt that the evidence may be used as tendency evidence and that it has significant probative value. It has value both for the prosecution and the defence, each of whom, I suggest, will be likely to treat it as tendency evidence that is capable of supporting inferences. The difference between the parties is that the Crown will argue that the inferences support the Crown case, whereas Mr Chapple will argue that they support the defence position. 30 The real matter for determination is whether there is any likelihood that the jury will apply impermissible reasoning to the evidence and use it in a way that is unfairly prejudicial to the accused. In my view, that situation can be satisfactorily addressed by the giving of directions which are structured to achieve the following situation:-

(a) Directions that fairly place before the jury the respective submissions of the parties in relation to the inferential reasoning.

(b) Directions which reinforce the onus of proof and remind the jury that the defence carries no onus in the trial. (c) Directions to remind the jury that they must not reason that the evidence relating to the identity and status of "Aaron Williams" (of itself) must lead to the conclusion that Andrew Norris is a fictional person. They would be told that such reasoning is completely impermissible and unfair.

(d) Directions that reinforce in the jury's mind that they must not reason that if Andrew Norris is not a real person, it must follow that the accused is guilty of murder. The jury should be reminded that facts relating to Andrew Norris are merely circumstantial facts in the overall Crown circumstantial case, and their strength or weakness is a matter for their evaluation. (e) Directions to the jury to remind them of the need to exercise caution in relation to drawing inferences. Particularly in the area of tendency evidence, they should be reminded that people do not always act in the same way in a similar situation. Differences between the situations of the first and third births, when compared to the birth of Tegan, should also be identified. 31 There may be other matters that, upon reflection, require incorporation in such a direction. I had asked Mr Chapple SC (in relation to the first two issues mentioned earlier in this decision) to fashion an appropriate direction for consideration by the Court. I made some suggestions during argument which, in shorthand fashion, reflect my preliminary views about such a direction. I would ask Mr Chapple to undertake the same task in relation to the present issue. 32 In short, I am satisfied that the evidence passes the statutory hurdles and may be relied upon by the Crown as tendency evidence, provided that carefully crafted directions are given to the jury to make sure that the evidence is not used in an impermissible way and is not used to support impermissible reasoning.

I direct that each of the relevant categories of evidence outlined in the tendency notices may be relied upon by both Crown and defence as tendency evidence in the trial.

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