R v Keli LANE

R v Keli LANE - [2010] NSWSC 1540 - NSWSC 2010 case summary — Zoe

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JUDGMENT: On application to leave lies and conduct as consciousness of guilt An overview 1 HIS HONOUR: In its opening to the jury, the Crown submitted that, in the period between approximately 1995 and 2004, the accused told a considerable number of lies concerning events surrounding the circumstances of the birth of three of her four children. A number of these lies, it was said, related to the circumstances surrounding the birth of her second child, Tegan. The Crown case is that Tegan was murdered by her mother very shortly after her birth. In particular, the Crown opening asserted the "perpetuation" by the accused of a version (or versions) she had given to the police in explanation, as she had claimed, for the handing over of Tegan to another person shortly after the birth of the child. These are sought to be relied upon by the Crown in the trial as affording significant evidence of her guilt. In addition, the Crown, during the trial, has adduced evidence of a number of instances of conduct, or lack of conduct, that it wishes to argue point toward the accused's guilt. 2 According to the Crown argument, all these matters are important and probative as tending to prove the accused's guilt in relation to the murder charge. The principal issue that arises in the present application is whether any or all of these matters may be left before the jury as evidence constituting an awareness or consciousness of guilt. If so, issues will then arise as to the nature of directions to be given to the jury in that regard. There will be subsidiary issues that I will outline later in these reasons. The Crown case 3 It will be convenient to refer, at the outset, to the general nature of the Crown case. The accused was indicted before the jury on one charge of murder and three perjury charges. The perjury charges relate to false statements made in affidavits filed in connection with two sets of adoption proceedings in the Equity Court. The first two perjury counts relate to statements made in two affidavits concerning the adoption of her first child, Tahlia. The third perjury count relates to statements made in an affidavit dealing with the adoption of her third child, Aaron. 4 Between the circumstances of each of these two adoptions, there stand the circumstances of the birth of her second child, Tegan. As I have indicated above, the Crown alleges that the accused murdered Tegan on or about 14th September 1996. 5 One complicating circumstance in relation to the murder charge is that the Crown has sought to rely upon matters arising out of the birth of the other two children as providing motive evidence, background evidence, and indeed tendency evidence to support the murder charge. The complication of this situation is further exacerbated by the fact that, in this regard, the Crown relies upon a number of lies allegedly told by the accused concerning the circumstances of the birth of the first and third children. Those lies, of course, relating to the parentage and related matters concerning children other than Tegan, could have no part to play in any argument based on conduct pointing towards consciousness of guilt in relation to the murder charge. 6 In relation to the murder charge, I will set out briefly some of the material that forms part of the Crown case. The accused gave birth to Tegan at Auburn Hospital shortly before 8pm on 12th September 1996. In fact, the accused had attended Ryde Hospital on three occasions in the week preceding the birth. The Crown opened to the jury on the basis that these attendances were brought about by the accused's desire to arrange for the birth of her daughter well before an important social obligation on 14th September 1996. The Crown case is that the accused deliberately kept secret her pregnancy with Tegan. That she was pregnant and ready to give birth was not known to any of her family or friends or, for that matter, her boyfriend at the time, Duncan Gillies. There is a lively dispute between the Crown and the defence as to the reason for these visits to Ryde Hospital, but there is no need for me to detail those matters at this stage. 7 In any event, the accused provided medical and other staff at Ryde Hospital with certain details concerning her background and family situation. The Crown case is that these lies were designed to prevent her family and friends learning her true situation. The Crown case is that these lies were continued when she went to Auburn Hospital on 11th and 12th September 1996. They included false statements about her address, the existence of a midwife and other background matters. Once again, the Crown case is that the accused did not want the hospital staff to be in a position where they might contact her family and friends, and so reveal the very matters she was keen to keep secret. 8 After Tegan's birth, both mother and child were transferred to the maternity ward. This happened at about 10:30pm on 12th September 1996. The accused remained in the hospital until some time in the late morning or early afternoon of 14th September 1996, when she and the child left the maternity ward. Both had been checked by medical staff and were deemed free to go. The Crown case points to a number of lies told by the accused to a social worker, Ms Baltra-Vasquez, and to nursing staff before she left the hospital. Once again, the Crown case is that the accused did not want hospital staff to have information that would enable her to be contacted after she left the hospital, because of the risk that this might reveal to family and friends that she had been pregnant and had given birth. 9 The Crown opened to the jury on the basis that the accused had left the hospital secretly, and possibly by a fire escape so as to avoid detection. There is considerable dispute between the prosecution and defence about this suggested circumstance. There is no direct evidence that she left by the fire escape, and there is evidence to enable the jury to find that she left the hospital by a conventional method of exit.

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10 The Crown case is that the accused murdered her child after she had left the hospital. There is, however, no evidence in the Crown case to show what happened after the accused left the hospital, and, indeed, there is no direct evidence that would suggest the death of Tegan on that day or, for that matter, at all. The next strand of evidence is that the accused arrived at her parents' home at about 3pm, presumably by car. She arrived on her own. Her boyfriend, Duncan Gillies, arrived following a morning at the golf course. The couple then changed to go to a wedding which was to be held at a church and reception venue in Manly, commencing at about 4 o'clock that afternoon. 11 The Crown case is that the accused had a motive to murder her child and, as well, that she had the opportunity to do so on 14th September 1996. The motivation for the crime is said to be a strong desire to continue her sporting life, coupled with a desire to keep her social life at its optimum. She was also concerned to pursue her educational and Olympic ambitions. Moreover, she had an overwhelming fear of rejection by her family and friends. All these circumstances, it is said, combined to place the accused in a position where the only way in which she could find a solution to achieve these ends, and to keep the birth secret, was to take Tegan's life and dispose of her body. The Crown suggested in its opening that the opportunity to dispose of the child arose between the time she left the hospital and the time she arrived at her parents' home at 3pm on 14th September 1996. There is, of course, no direct evidence to support any inference that the child was killed or, if she is deceased, that she was killed by her mother. 12 An unusual feature of the case is the fact that the accused had had two other "secret" births, one in 1995 and one in 1999. Each of these children, as I have mentioned, was adopted. In each case, the pregnancy, the birth and adoption occurred without the knowledge of her family and friends. The Crown suggests that the evidence of circumstances surrounding these events may be used by the jury, not merely as background, but as providing evidence of a tendency or a state of mind on the part of the accused to adopt "long-term solutions" in circumstances where she was unwilling to undertake the care and custody of a child. The Crown will argue that the tendency or state of mind thus revealed would be inconsistent with any short-term arrangement such as handing the child over to its natural father, thereby facilitating some type of informal adoption process. The Crown will also rely upon aspects of this evidence, including lies told by the accused in connection with the birth and adoption of these two children, to suggest that there was a tendency to either hide the identity of the natural father, or to create a fictional person as the natural father when pressed for details by those in authority. 13 (In an earlier decision, I have determined that the Crown may rely on this type of evidence as tendency evidence, although I have indicated that its use should be substantially circumscribed by the giving of careful and thorough directions to the jury to dispel any possibility of impermissible or unfairly prejudicial reasoning). 14 A police investigation into the circumstance of Tegan's birth and possible disappearance did not commence until some years later. The first investigation was conducted by Detective Kehoe of Manly Police in late 1999. The accused told this police officer, on 14th February 2001, that the natural father of the child had been given the baby on the day the accused had left the hospital. The Crown case is that the accused advanced eight "different" versions about what happened to Tegan. The Crown wishes to rely on three of these versions as consciousness of guilt lies. In relation to the other "versions", the Crown simply relies upon these as going to the credibility of the accused, that is, making it less likely that the principal explanation given by the accused is true. 15 In addition to relying upon certain lies as evidence of consciousness of guilt, the Crown also intends to rely on certain conduct of the accused as also pointing to her guilt. The first aspect of this conduct is said to be her reluctance to return a telephone call to Detective Gaut on 6th January 2004, and her general disinterest in the police investigation. The Crown wishes to argue that her conduct in this regard is such that the jury could conclude that it is explicable only on the basis that the accused knew that the natural father (that is, Andrew Morris/Norris) would never be found and that she knew that Tegan would never be found. The Crown will argue that this is so because she knew that Morris/Norris did not exist and that Tegan was dead. Once again, the argument appears to be based on the accused's consciousness of guilt that she had murdered Tegan, and that this was the only explanation for her conduct. 16 The next "strand" in the Crown case relates to the contents of a number of intercepted conversations. I will not pause to detail them at this point. The Crown suggests that certain individual comments or statements made during the conversations are capable of indicating a state of mind on the part of the accused that suggests she knew that Morris/Norris and Tegan would never be found. Finally, the Crown wishes to suggest that the accused's perpetuation of the Morris/Norris story may also be used as proof that the accused had no other version to provide the authorities in connection with what had happened to Tegan (other than murder). 17 On this final basis, the Crown wishes to argue that the fact that the accused has "refused" to put forward an explanation beyond that of giving the child to its named natural father, will enable the jury to more readily conclude that there is no other available hypothesis consistent with innocence and that the Crown, in that regard, will have discharged the onus of proof it bears. In its opening, in a variant of this proposition, the Crown referred to the accused as "perpetuating" the lie she had told. The Crown stated:- The Crown case in essence is this in relation to the murder charge. That the accused had a number of motives to kill her baby Tegan. That she had the opportunity to kill Tegan between noon and 3pm on 14 September, and that otherwise the period of three hours is unexplained, unaccounted for. The Crown case is that the Andrew Morris/Norris account is a complete lie and that he is a totally fictitious person invented by the accused in the course of the police investigation and either added to or modified from time to time as the occasion arose.

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The proposition in the last paragraph, it will be seen, highlights the fact that the "perpetuation of lies" argument is also sought to be relied on by the Crown as consciousness of guilt conduct. The Defence case 18 As might be expected, the essential nature of the defence case is that the Crown is simply unable to prove the essential ingredients of the murder charge. The defence argues that there is no direct evidence that Tegan is dead. The highest the evidence goes is to show that Tegan has not been located. There is no evidence, even if she be no longer alive, as to how she died, or the circumstances in which that may have happened. The defence case is that there is not a shred of evidence to suggest that, if Tegan be dead, she was deliberately and intentionally murdered by the accused. The defence case is that Tegan was handed over by the accused to her natural father. In relation to the tendency evidence, the defence case is that, whatever the evidence may show as to the state of mind or behaviour of the accused in relation to the children who were adopted, it shows, above all else, that she was concerned for the welfare of each of her children and would have been unlikely to have caused any harm to Tegan. The defence case is that the accused's behaviour in relation to the adopted children is entirely consistent with, and supports, the defence position. Finally, the defence asserts that the accused has always maintained that she gave the child to the natural father, but argues that no adverse inference can or should be drawn against the accused on that account. The accused has given an explanation and is not obliged, nor required, to say anything further on the matter. The Crown is not entitled, the defence argue, to suggest that an adverse inference should be drawn against the accused on the basis that she has not advanced a further or different explanation. Lies as consciousness of guilt 19 The Crown argues that three of the statements made by the accused as to her conduct in giving Tegan away are lies that it may rely upon as evidence of consciousness of guilt. I shall detail each of them separately.

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The Crown has further argued, as I have said, that the maintenance of these two lies (regarding Andrew Morris/Norris) is consistent only with the desire to hide the real truth, which was that she had murdered Tegan. To this extent, the "maintenance" of the alleged lies is relied on as evidence of conduct in consciousness of guilt or, perhaps more accurately, a lack of conduct in that no further or different explanation was proffered. In that latter regard, the Crown, as I mentioned, also relied upon the "perpetuation" of the Morris/Norris lies as probative to disprove that the accused informally adopted Tegan out to some other unknown person or persons. I shall leave the resolution of the "conduct by perpetuation" issue to a later stage in this decision. I turn now to consider the resolution of the issue concerning lies as consciousness of guilt. Resolution of issues - lies 20 The circumstance in which a court may admit evidence capable of demonstrating a consciousness of guilt has been compendiously described in a decision of the Court of Criminal Appeal of New South Wales. In R v Cook [2004] NSWCCA 52, Simpson J (with whom Ipp JA and Adams agreed) said: 21. Evidence from which a jury may be asked to infer that an accused person has acted out of a consciousness of guilt is tendered in the prosecution case most commonly in relation to lies, either in or out of court, alleged to have been told by the accused person. A considerable body of law with respect to the circumstances in which such evidence may be admitted, and the way it may be treated, has developed: See for example, Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen [2000] HCA 23; 200 CLR 234; R v Heyde (1990) 20 NSWLR 234; R v Sutton (1986) 5 NSWLR 697; R v Fowler [2000] NSWCCA 142. The principles were drawn together by Gleeson CJ in Heyde in the following terms: "If, by evidence or admission, it is proved that an accused person has told a lie, that is to say, made a deliberately false statement, in Court or out of Court, then, provided various conditions are fulfilled, the jury may regard the lie as demonstrating a consciousness of guilt and may treat the lie as corroboration... However, common sense and ordinary human experience indicate that a judgment as to whether a lie reveals a consciousness of guilt, although one which people not infrequently make, may, depending upon all the circumstances, be very difficult. People tell lies for many reasons other than a consciousness of guilt. For example, a person may tell lies to escape a false accusation, just as a person may be put to flight by the threat of unjust arrest." 22. The conditions to which his Honour referred were stated in R v Lucas, (Ruth) [1981] 1 QB 720 and adopted in the judgment of Clarke JA in Heyde . It is apposite to note that the conditions are directed to the determination of whether or not the lies upon which the Crown sought to rely are capable of amounting to corroboration. The four conditions laid down in Lucas are: (i) that the lie is deliberate; (ii) that it relates to a material issue; (iii) that the motive for the lie is a realisation of guilt and fear of the truth; (iv) (where relevant) that it is shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is, by admission or by evidence from an independent witness. 23. In addition, the lie must be capable of being seen as indicating consciousness of guilt of the specific offence with which the accused is charged. 24. Two separate issues arise when the Crown tenders such evidence. The first goes to the admission of the evidence. In order to admit the evidence tendered, the trial judge must be satisfied that it is capable of meeting the five conditions outlined. If it is not so capable then the evidence is inadmissible. If, however, it is so capable, then the evidence may nevertheless be rejected pursuant to one of the discretions available to a trial judge, for example, the discretion conferred by s135 of the Evidence Act 1995, or following the exercise required by s137 of that Act. The second issue, which arises only where the evidence has been admitted, concerns the directions to be given to the jury by the judge as to the use that may be made of the evidence. 25. The principles developed in relation to evidence of lies are readily adaptable to the circumstances where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt. Evidence of flight may be admitted where the jury may legitimately infer that the flight was occasioned by consciousness in the accused person of guilt - that is, of guilt of the offence with which he/she is charged. … 50. Where evidence of flight is relied upon as evidence of a consciousness of guilt, the principles of law applicable to directions which must be given to the jury are, in my view, identical to those which govern the directions to be given to a jury where lies are relied upon as such evidence. Those principles are stated in Edwards , Zoneff and Hyde ... In particular, it is necessary, in my opinion, to draw attention to the circumstance that an accused person may behave in a way suggestive of a recognition of guilt for reasons other than such recognition of guilt - for example, fear of being unjustly accused. It is also necessary to point out to the jury that the consciousness must be a consciousness of guilt of the specific offence charged, and not, for example, of some other offence or some other discreditable conduct. The flight (or lie) may only be used as evidence of a consciousness of guilt of the offence charged where the jury is satisfied that it points unequivocally to consciousness of guilt of that offence and not some other offence or discreditable conduct. 21 The statements were cited with approval by McClellan CJ at CL (with whom Tobias JA and Hoeben J agreed) in Quinlan v R (2006) 164 A Crim R 106 at [15], although the particular passage was inadvertently ascribed to Ipp JA. 22 In the seminal decision of Edwards v R, in the joint judgment of Deane, Dawson and Gaudron JJ, the following passage appears, dealing with the directions that should be given to a jury:- Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters.

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23 There is an important qualification to the approach described by Simpson J above. Where, for example, there is no immediate piece of independent evidence to demonstrate that a particular statement may be a lie, and it is necessary to assess the credibility of the accused and the impugned statement in the light of the entire circumstantial case presented by the Crown to determine whether or not he or she had told the truth, the position is by no means clear cut. The situation is even more critical where the suggested lie is, in truth, the central platform of the defence case, or, as here, it is the defence case itself. In that circumstance, it is important that lies in consciousness of guilt not be left before the jury where the jury would be obliged to engage in circuitous or "bootstrap" reasoning regarding those lies (R v Zheng (1995) 83 A Crim R 572; R v ST (1997) 92 A Crim R 390 at 394; Mercer v R (1993) 67 A Crim R 91 at 98; R v Middleton [2001] Crim LR 251; R v Harron [1996] Crim LR 581 at 583; R v Laz (1998) 1 VR 453; R v Russo [2004] VSCA 206; R v Sirillas [2006] VSCA 234). 24 A good example of this situation arose in R v Zheng. This was a decision of the Court of Criminal Appeal where the appellant had been charged with three counts of supplying a commercial quantity of heroin. The jury had been directed that it was essential to the Crown case that they accept that it was the appellant who, on two separate occasions in a carpark, received a plastic bag containing the heroin from another person and which he placed in the boot of a car parked there, as part of the chain of supply. The appellant denied these facts. The evidence that they were the facts came from various police officers who observed the appellant's conduct in the carpark. The appellant explained his presence in the carpark by saying that he had been engaged there in the innocent pursuit of cleaning cars, and that he had spoken but casually to the other person from whom he was alleged to have received the heroin. During the trial, the judge left to the jury lies as evidence in consciousness of guilt. The Crown Prosecutor had argued that, if the jury accepted the Crown's evidence that the appellant did what its witnesses had said that he did, they could be satisfied that he was telling lies when he said that he was in the carpark for an innocent purpose, and that the jury would be "entitled to take that into account and add it to the rest of the Crown case". 25 Hunt CJ at CL (with whom Smart and Studdert JJ agreed) said at 574:- So far as lies may indicate a consciousness of guilt… it is unnecessary for that purpose for the jury to be satisfied beyond reasonable doubt that what the appellant said amounted to lies. However, so far as the Crown relies upon a lie by the accused as supporting an inference of guilt, and if the lie is the only evidence of guilt or if it is an indispensable link in the chain of evidence to prove guilt, the fact that the accused lied must be established beyond reasonable doubt. 26 And at 576, His Honour said:-

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The argument put is this. A lie will be available for that purpose only if the jury is satisfied, amongst other things, that the statement in question was in fact false. In the present case, the only logical way in which the jury could have been satisfied that the appellant was Iying was if they accepted as true the evidence of the Crown's witnesses who observed his conduct… Once the jury had reached that conclusion concerning the appellant's conduct, there was nothing further which the Crown had to establish relating to that particular conduct of the appellant. For the jury to be invited to conclude that the appellant's lies concerning his conduct in the carpark was available as evidencing a consciousness of guilt, which could then in turn be taken into account in some way in determining whether the appellant had in fact conducted himself in that way, is a wholly circular argument. 27 Hunt CJ at CL concluded that the appellant's lies as to what he did in the carpark could not logically be established without first reasoning that the appellant had in fact done in the carpark what the Crown's witnesses said that he did. 28 In my opinion, the reasoning adopted by Hunt CJ at CL in Zheng's case is entirely appropriate to the situation in the present matter in relation to "lies" 2 and 3, namely the Andrew Morris/Norris explanation. The accused had been directly asked by Detective Gaut during a police interview, "Did you kill the child?" The accused answered, "No, I did not. I did not do anything like that." The accused told Detective Gaut (as she had told Detective Kehoe) that the natural father of the child had been given the baby. She was said to have told Detective Kehoe that his name was Andrew Morris, but she later told Detective Gaut that his name was, in fact, Andrew Norris. As was observed earlier, it may properly be said that the defence case is that the accused gave the baby to the natural father. This is not merely peripheral to, or simply a part of, the defence case. It is the defence case as it was opened to the jury. In my opinion, a jury could only determine that the Andrew Morris/Norris story was a lie if they were to accept the entirety of the Crown's circumstantial case. 29 In its written submissions, the Crown has set out the way in which it proposes to demonstrate that the Andrew Morris/Norris explanation should not be accepted. It is convenient to briefly record each of the arguments that is suggested to be available for this purpose, and to demonstrate from these matters why I have reached the conclusion I have.

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Firstly, the Crown says there are numerous pieces of evidence that "independently" prove the Andrew Morris/Norris account to be a lie, including the evidence that no one of that name had lived at Wisbeach St Balmain, or visited those premises at the relevant time. Secondly, the Crown points to the fact that the accused made a number of "changes or additions" to the Andrew Morris/Norris story. These included the numbers of times she had been visited by Andrew, Mel and his mother at the hospital; whether she had been driven home to Venus St by Andrew, or went there by taxi on her own; and the number of times she was subsequently visited at Venus St by Andrew with the baby. Thirdly, there is a suggestion that the accused, when interrogated by the police, showed a "disinterest" in genuinely looking for the place where she claimed she had had a relationship with Andrew Morris/Norris. The Crown developed this proposition to suggest that her behaviour was inconsistent with a genuine belief in the existence of a real person called Andrew Morris/Norris. Fourthly, there was a suggestion that the accused had lied about going to Venus St to endeavour to find a contact number for Andrew Norris. The Crown suggested that this lie, in itself, showed that she did not believe a person by the name of Andrew Morris/Norris existed. Finally, the Crown mentioned an intercepted telephone call which showed, once again, a "disinterest" in her hunting down Andrew Norris, the disinterest supporting the Crown's allegation that Andrew Norris was a complete fabrication. 30 The recitation of these suggested modes of proof clearly demonstrates that they by no means answer the description of immediate pieces of independent evidence capable of demonstrating, in a straightforward and simple manner, that the defence case is a lie. It is unnecessary for me to comment in any detail on each of the matters relied on by the Crown. It is sufficient to note that the first matter, whether Andrew Morris/Norris ever lived, stayed or visited the Wisbeach St premises, is hardly a matter that is conclusively proved in the Crown case. Of course, in the ultimate, the jury may accept that a person of that name did not reside or stay there, but there are inevitable gaps in the Crown's proof, as evidenced by the cross-examination of Detective Sanchez. Secondly, the Crown cannot with certainty prove, based on the charts and other evidence, that Andrew Morris/Norris did not exist. Nor can it prove from this evidence that the accused did not give the child to its natural father. It can perhaps prove that, after a diligent and thorough search, Andrew Morris/Norris has not been located. This may cast doubt upon the accused's explanation, perhaps considerable doubt. But it cannot, without the entirety of the Crown's circumstantial case, prove that it should be disbelieved as a reasonable explanation. 31 All the other matters relied on by the Crown are circumstantial matters, often arising out of a particular view that may or may not be taken of the accused's own behaviour and where, in the ultimate, the Crown will wish to argue that her conduct shows an awareness that Andrew Morris/Norris did not exist. Whether the jury will accept the Crown's views in this regard is a moot point. In my opinion, whatever the forensic strengths or weaknesses of these individual arguments, they may for present purposes properly be described, in each case, as bootstrap argument upon bootstrap argument. If, for example, the accused's conduct, or lack of conduct, is to be relied on to show that she never believed in the existence of an Andrew Morris/Norris (and the Crown's circumstantial case suggests this to be so), then it must be circular in the extreme to argue that those facts can be used to demonstrate that, when she claimed she handed the baby to Andrew Morris/Norris, she must have lied; and that this lie, in turn, may be taken to demonstrate her guilt of the crime of murder. There are many possible explanations available to explain the accused's behaviour, not the least of which is her oft-stated concern that she would lose her family, her boyfriend, her child XXXX and her job once it was disclosed she had given a child away. The defence will no doubt argue that the accused's behaviour may have been no more than an expression of the fact that she wanted the whole inquiry to simply go away. It was a part of her life that she did not wish to be brought into the public arena, and she wished to avoid the embarrassment - the inevitable consequence - of the topic becoming public. If the jury were to accept the reasonable possibility inherent in those submissions, then the probative value of the material on which the Crown wishes to place reliance to prove the lie would be absolutely minimal. 32 The fact is there is no independent evidence to demonstrate that the accused was telling a lie when she said that she gave the baby to the natural father. One would have to conclude, from the entirety of the circumstantial case generally, that this was a lie. Therein, it seems to me, lies the circularity. 33 The Crown has, of course, argued, that there is a considerable body of evidence that might make the accused's explanation otherwise unbelievable. All this may or may not be true, but this body of material is part of the general circumstantial case, as I see it. I agree that the jury may be entitled to disbelieve the accused, depending on the view they take of the Crown's overall circumstantial case. But there is no particular evidence which can be pointed to in order to demonstrate unequivocally that the accused's statement in this regard is capable of being regarded as a lie. In Heyde's case (1990) 20 NSWLR 234, Clarke JA said at page 245, line G:- What, I think, emerges from the authorities, and common sense, is that the importance of the subject matter of the allegedly false statement is critical to the drawing of an inference of consciousness of guilt. For instance, if the issue is whether the complainant consented to sexual intercourse a statement by the accused to the effect that immediately prior to the relevant time the complainant was wearing a red jumper, which is contradicted by the complainant and an independent witness, will, except in extraordinary circumstances, be quite incapable of supporting an inference that the accused lied because of a consciousness of guilt. On the other hand, a denial by the accused that he was any where near the scene of the crime, which is later retracted in the presentation of a defence of consent, is eminently capable of supporting the relevant inference. 34 In Zoneff v R (2000) 200 CLR 234 at page 258, paragraph [60], Kirby J gave a further telling example that is illustrative of the distinction. His Honour said:- Probabtive lies, on the other hand, are those which naturally indicate guilt… a hard test to satisfy." (R v Toia [1982] 1 NZLR 555 at 559). This is a "hard test" precisely because it is rare that a lie about a particular matter will be so crucial as, of itself, if proved, to establish directly guilt beyond reasonable doubt of a criminal offence. It could happen if, for example, the lie related to an object indisputably linked to the offence. Take a handkerchief with bloodstains proved by DNA evidence to be that of the victim but falsely attributed by the accused to a nosebleed. It is testimony of this kind that has been explained as evidencing a "consciousness of guilt. It is said to be such a lie because the accused tells it… knowing that telling the truth would necessarily, and without more, establish guilt of the offence charged. 35 At page 259, Kirby J drew attention to the defect in the consciousness of guilt theory in his own example, where he pointed out that evidence of the kind he mentioned may prove no more than that the accused had some connection with the wrongdoing, but one that fell short of a demonstration of guilt. He gave, as an instance, the situation that the bloodstained handkerchief might have been handed by a family member, or a lover, to the accused. 36 The critical point I am making here, though, is that it seems to me that there must be some evidence, whether it is described as independent or separate, by which one can say that the statement made by an accused either in the witness box or out of court is capable of being regarded as a lie. That is not the situation in the present matter, so far as the Andrew Morris/Norris explanations are concerned, although, as I have said, the jury may conclude, in the ultimate, having regard to the general body of evidence, that the explanation cannot be accepted and is to be disbelieved. That will be a matter for their judgment once they are instructed as to the proper approach to be taken to the evaluation of the evidence in a circumstantial case. But it is not a foregone conclusion. 37 This leads me to a further reason why I consider that these two lies, in particular, should not be left as lies evidencing consciousness of guilt. The jury will be directed that, if they disbelieve the accused's explanation, they are not to thereby find her guilty of murder. They will be directed, in that situation, simply to put the evidence of that explanation to one side altogether. They will next be required to examine the evidence remaining in the case, including such of the evidence that emerges from her interview with the police as they do accept. They will be then required, having regard to all that evidence, to determine whether the Crown has or has not proved each of the essential ingredients of the murder charge beyond reasonable doubt. If there is a reasonable possibility that any of those ingredients is absent, the Crown will have failed to prove its case and the jury will be bound to acquit. 38 It would be inconsistent with such a direction, and indeed contrary to it, to then say to a jury, "If you do not believe her explanation, you may regard that as a lie to be used as evidence of her consciousness of guilt." Indeed, the Crown's opening reveals that it wishes to go so far as to put to the jury that the lies were told because "the truth was too terrible to contemplate, namely that she had murdered Tegan." Such a submission, in this trial, would fly directly in the face of the Crown's obligation to prove the charge beyond reasonable doubt, and the direction to be given to reinforce that obligation. 39 Further, I consider that the confusion, indeed extreme puzzlement, likely to be foisted upon the jury by these conflicting directions will be compounded by the circumstances of this trial, where lie after lie is to be relied upon by the Crown as compromising the credibility of the accused. In my opinion, this is a powerful reason for confining the issue of lies to credibility in all situations. If the Crown be confined to this situation, where all lies are taken into account only on the issue of credibility, as I think they should be, then, in my view, the Crown nevertheless retains a forensic weapon of some force to use during its closing address. 40 In its written submissions, the Crown argued that the Morris/Norris lies did not involve circular reasoning. The Crown submitted that, in this trial, the jury can decide the falsity of the Morris/Norris accounts without deciding the ultimate issue of guilt. The Crown submitted that the Morris/Norris lies were simply part of the circumstantial case against the accused. There is, it must be said, a level of inconsistency in the Crown arguments in this regard. Prior to making this submission, the Crown had argued:- The only rational conclusion is that the maintenance of the Andrew Morris/Norris lies in the face of such overwhelming distress and dire consequences is out of a consciousness of her guilt for the murder of Tegan.

[22]

To this I would add the paragraph I have earlier quoted from the Crown opening. These statements demonstrate that the Crown wishes to proceed directly from the lies, and their perpetuation, to guilt: the Crown wants to treat the truth revealed by the lies as an implied admission of guilt. Secondly, at the end of its written submissions, the Crown conceded that the jury "would have to be warned that these assertions by the accused must be proven to be lies beyond a reasonable doubt". Thirdly, the Crown accepted that, if the jury thought there was a reasonable possibility that the accused did in fact hand Tegan over to the natural father, then they would have to acquit her. Fourthly, the Crown, in its final oral submissions, argued that the Morris/Norris lies could be seen as an implied admission of guilt, able to be used by the jury to disprove any other hypothesis inconsistent with guilt. This was particularly so because the lies had been maintained over a long period and in difficult circumstances. In all these respects, the Crown arguments are not consistent with the proposition that the Morris/Norris lies are simply to be treated as part of the overall circumstantial case against the accused. 41 While, on the one hand, the Crown maintains that the Morris/Norris lies are merely innocuous pieces of circumstantial evidence, it is clearly the Crown approach that these "lies" are to be used as an indispensable link in the chain of reasoning underpinning the Crown case. This is but another way of saying, as the Crown apparently wishes to do, that disbelief of the explanation given by the accused to the police may lead, more or less directly, to a finding of guilt of murder beyond reasonable doubt. (There is an inconsistency or duality of approach involved in this, which, quite apart from the consciousness of guilt argument, will require a separate comment in its own right. I will return to this aspect at a later stage in these reasons). 42 There can be no doubt, however, that, by one means or another, the Crown wants the jury to infer that, if the Andrew Morris/Norris explanation is to be disbelieved, the jury may comfortably find themselves within easy reach of a guilty verdict. It needs also to be recalled that the defence case is that Tegan was given to the natural father, and for the moment that possibility may embrace the fact that the natural father was a person named Morris or Norris. This highlights, at least at a practical level, the centrality of the topic as a major issue in the trial. Both parties accept, as I have said, that if there be a reasonable possibility that Tegan was handed over to the natural father, this will require the jury to acquit on the murder charge. 43 In its oral submissions, the Crown referred to an earlier decision of mine. In R v Lodhi [2006] NSWSC 672, I had held that an explanation for his conduct given by the accused in evidence could not, if disbelieved, be used as evidence pointing to consciousness of guilt of the charges in the indictment. Mr Tedeschi QC sought to draw a distinction between the situation in that case and the position here. I have said enough to indicate, I believe, that there is no real distinction between the two situations in terms of principle. In Lodhi, the accused had given an explanation in evidence for the fact that he was in possession of certain items, and that he had made certain enquiries for the purchase of equipment that might be used in a terrorist attack. This explanation was central to his case, namely that his possession of the items, and the enquiries he had made, did not reflect any criminal intent. 44 In the present trial, it is plainly central to the accused's case that she gave the child away to its natural father. Indeed, the Crown case recognises this. The major part of the Crown case, and indeed the reason that many months have been taken in the unfolding of the evidence, is the Crown's desire to expose the accused's explanation as a lie. A considerable amount of trial time has been taken in the endeavour by the Crown to show that Andrew Morris/Norris did not exist, that he did not live in Balmain and that he cannot be located. A considerable amount of time and effort has been put into demonstrating before the jury that a child named Tegan born on 12th September 1996 is not a child presently being reared, educated or cared for by a person named Andrew Morris/Norris. There is some force in Mr Chapple's observation that the evidence in this trial has, to a large degree, focussed on the existence or otherwise of Andrew Morris/Norris, whereas, by contrast, there is no direct evidence to show that Tegan is dead, or that she was murdered. 45 It is true, as the Crown argued, that the law in this field recognises a distinction between the accused's case and merely a part of it. Cook's case is a good example of a situation where that distinction was able to be made (see the remarks of Simpson J at [63]). This distinction is not always an easy one to make. The need for caution in this area, however, makes it essential for a trial judge to tread carefully before making the relevant distinction in favour of the Crown. In my view, the situation in the present trial falls clearly on the side of the line represented by cases such as Zheng and Lodhi. 46 Finally, it is necessary to say that the weight of authority and academic opinion favours a very cautious approach to the issue of whether lies evidencing consciousness of guilt should be left for a jury in a criminal trial (R v Sutton (1986) 5 NSWLR 697 at 701 per Street CJ, where His Honour said that reliance by the Crown on collateral conduct eloquent of guilt, such as flight or a lie, "is fraught with a risk of miscarriage"; see also R v Heyde at 236 per Gleeson CJ; R v Ray (2003) 57 NSWLR 616 at 632 per Wood CJ at CL; and see also Wood "Criminal Law Update: Court of Criminal Appeal" (1999) 4 Judicial Review 217 at page 238). 47 Indeed, Wood CJ at CL, writing extra-curially, in the Criminal Law Update to which I have referred, indicated that "often it is a weak Crown case that needs to rely on lies as consciousness of guilt." 48 I turn now to consider the "Perth couple" lie. I have earlier described briefly the nature of the situation which led to the accused sending a fax on 25th October 1999 to Virginia Fung. The precise sentences relied on by the Crown appear in the early part of the fax as follows:- There were three children, obviously I can't lie anymore as the paperwork is there. The middle child lives with a family in Perth although I have not have contact with them in a long time. They befriended me just before I had her and supported us. I am not able to give you many details as I am not sure of them myself… I am aware that this does not have anything to do with Tahlia's and Aaron's placement and really not your issue but I feel you should know and perhaps pass these details onto John. 49 The context of the fax is extremely complicated. It is sufficient for present purposes to say that it essentially arose, as I said earlier, in connection with the adoption of the accused's third child, Aaron. In the early phases of the adoption proceedings, the accused had said the father of this child was Duncan Gillies. Later, it became patently obvious to Virginia Fung, particularly after speaking to Duncan Gillies, that he was not the father. The accused then said the father was a man named Aaron Williams with whom she had had a brief relationship in London, and had fallen pregnant to him. The Crown case is that this was in fact a lie, principally because the accused had not been in London at the relevant time. Moreover, DNA testing, many years later, demonstrated that the true father of Aaron was a man named [NAME RESTRICTED]. He was a friend of the accused's younger brother, with whom she had had a brief relationship in the relevant year. He had no idea that the accused had fallen pregnant and had given birth to his child. Against the background of these extremely complex and multi-layered situations, it is likely that the accused, at the time of writing the fax, was principally concerned with two things. First, to ensure that the adoption of Aaron proceeded as efficaciously as possible, notwithstanding the fact that she had been "found out" in not telling the truth about the paternity of the child. Secondly, it is as clear as it could be that the accused was endeavouring, in a clumsy and ultimately ineffective way, to prevent her family and friends from finding out about Aaron's birth. 50 A third complication, however, had arisen. This was the fact, referred to earlier, that John Borovnik had learned unexpectedly that the accused had delivered a second child, who had been born at Auburn Hospital in 1996. It was in the context of that additional fact that the sentences I have quoted above appeared in the fax, Exhibit YY. The fax is a very lengthy document. There are many matters stated in it that are probably untrue. It would be open to the jury to conclude, however, that the overall thrust of the letter was an endeavour by the accused to regain the confidence of Virginia Fung so that Aaron's adoption could proceed and that, as a consequence, her family and friends would not find out about her recent pregnancy and Aaron's birth. In one part of the fax, analysing her own actions over the last six years, the accused said:- Why did I? I didn't have any support any time I was in this situation. I felt very isolated and alone. People dropped off me when they realised I was going to relinquish the babies. How could I do it? Society says that this is wrong, society says that people who do this must be mad, slutty or cruel. I just don't agree. Being able to have a beautiful, healthy child is a great gift. Being able to give someone else that opportunity when they can't is a gift as well. I don't think my behaviour itself is actually that bad, it's just the secrecy and dishonesty that comes with it… I live with these decisions and thoughts every day. I hurt mentally, emotionally and physically every day. I have to live with this for the rest of my life. I constantly feel sick, I sleep two to three hours a night, I'm always on edge. I wish the phone would never ring again. I'm sick of bad news and I'm tired of hiding things from people. I worry constantly that people who don't know me or the situation will find out and I will lose more people.

[23]

The Crown, in its submissions, described this fax as "very manipulative." It may well be, although it would be open to the jury to conclude that there are a number of statements made by the accused that are likely to be genuine. However, the principal observation for present purposes is that, in my opinion, its probative value, in the present context, is scarcely more than minimal. It seems to me that the real thrust of the "Perth couple lie" is that it was an attempt by the accused to fob off any inquiry relating to Tegan, because it was a further complication likely to hold up the adoption of Aaron. It is simply impossible to say that the motive for the lie, if it was a lie, was a realisation of guilt for the offence of murder and a fear that the truth would implicate the accused as the perpetrator of the murder of Tegan. The context of the statements was entirely removed from any consideration of the death of her second child. It is only by assuming that the death of the child by deliberate and violent means has been proved that one can begin to draw the inference suggested by the Crown. Put simply, the suggested lie does not have the capacity to do the work the Crown seeks to ascribe to it. In my opinion, to use the lie as consciousness of guilt of murder would fall foul of the conditions set out in Cook's case . In particular, the lie does not appear to me to be capable, in its context, as being seen as indicating an awareness of guilt of the offence of murder. Nor could it be seen as a lie that was told because the accused realised she was guilty of murdering her daughter. In my view, as I have said, it could not be seen as an implied admission in connection with the central charge in this trial. 51 Another problem facing the Crown argument is that it is not altogether easy, in the light of the Crown evidence, to demonstrate that the Perth couple story is a lie. The Crown argued, however, that it may be seen to be a lie because the accused herself effectively abandoned it in favour of the Morris/Norris explanation given during the later records of interview. The problem with this argument is that the Crown asserts, with considerable vigour, that the Andrew Morris/Norris story itself is a lie. If the Andrew Morris/Norris story is a lie, as the Crown asserts, does that not leave open the possibility that the Perth couple story may have been the true explanation? It is fair to observe that the Crown has not independently endeavoured to prove that the Perth couple explanation was deliberately false. It is true, of course, that the accused prevaricated in relation to the version given to Virginia Fung when she was later interviewed by the police. But that, of itself, would not prove that the Perth couple story was a lie. 52 There is, once again, the need for a high degree of caution before determining to leave lies as evidence of consciousness of guilt. If this lie were to be left, it would be the only one in that category. That situation alone would create an entirely prejudicial and unwarranted impression in the mind of the jury. It would be apt to confuse the jury. I consider that it is sufficient that the lie be used simply as evidence capable of demonstrating that, in certain circumstances, the accused has told lies, and that it may be used on the issue of her overall credibility. Conduct supporting inferences of guilt 53 This topic requires an examination of three separate matters raised in the Crown submissions. First, there is the allegation of the accused's "disinterest" in the outcome of the police investigation in early January 2004. Secondly, there is the "state of mind" relied on by the Crown as revealed in a number of intercepted conversations. Thirdly, there is the Crown proposition that the Morris/Norris lies have been "perpetuated" by the accused on a number of occasions, leading to the suggestion that the accused's maintenance of this explanation is itself conduct that spells out a consciousness of guilt on her part for the murder of Tegan. This last proposition is, of course, bound up with the issue I have already dealt with, namely the Crown's assertion that the Morris/Norris lies are capable of being matters reflecting consciousness of guilt. I have rejected that notion, but it remains to consider whether the "perpetuation" of those lies may be relied upon by the Crown in the way it has suggested in its submissions. 54 I shall now turn to examine each of these three matters separately. The accused's disinterest in the outcome of the police investigation in early January 2004 55 The Crown wish to go to the jury on the basis that Detective Gaut attempted to telephone the accused on 6th January 2004 and that she, it will be submitted, pretended that she was unable to hear him during the call. The Crown will suggest that Detective Gaut rang back shortly afterwards and left a message on her answering machine. Although the accused retrieved that message, she did not ring him back. The Crown will suggest that, as this was the first occasion Detective Gaut had contacted the accused in about eight months, her state of mind (as evidenced by the fact that she pretended not to hear him, and later did not ring him back) is suggestive of the fact that she had no expectation that Tegan and/or Andrew Morris/Norris would be found. Rather, the disinterest displayed by the accused's reactions suggests that she knew only too well that Andrew Morris/Norris would never be found because he was not a real person. In the same way, her disinterest reflects that the accused knew that Tegan would never be found because she knew she was dead. Although not spelled out in the Crown submissions, the overwhelming inference from the last proposition is that the accused knew Tegan was dead because she had murdered her. In oral submissions, the Crown somewhat disavowed that it wished to go this far, but it is clear that, faced with the Crown submission, the jury would be bound to draw that ultimate inference for itself. The jury will effectively be asked, or entitled to reason from the telephone evidence, that the accused is guilty of murder. 56 The Crown will also wish to contrast this apparent "disinterest" with the fact that, when the accused spoke to Detective Gaut the next day, she said to him:- "I haven't heard from you for months. I was wondering why you haven't contacted me." 57 When Detective Gaut told her that he had tried to speak to her the previous day, and said he thought that she may have been avoiding his call, the accused then said:- "My phone's been playing up. It's not just with you, it's with everyone. You can ring it if you want." 58 A little later, the accused added:- "I can't understand why I haven't heard from you for so long. This is on my mind every day. I don't just sit at home when you don't call and not think about it." 59 The Crown wishes to go to the jury on the basis that this last statement was untrue, and it was designed to feign an interest in the outcome of the investigation when, in truth, the accused had no interest in the outcome because she knew Tegan was dead and that Andrew Morris/Norris did not exist. At first blush, it might be thought that the sparse evidence I have outlined could scarcely support the inferential process of reasoning the Crown wishes to suggest to the jury. 60 The principles of law applicable to a consideration as to whether conduct later relied upon by the Crown as evidence in consciousness of guilt are precisely the same as those in relation to the issue of lies (R v Cook per Simpson J at para [50]). Where the evidence is allowed on that basis, however, it is necessary to fashion directions that meet the needs of the situation, bearing in mind the difference between lies and conduct. 61 As a consequence, the resolution of the present issue requires a similar analysis to that which I have made reference earlier in this decision. Prior to making that analysis, however, it is necessary to examine a little more closely the factual circumstances of the telephone calls made on 6th January 2004. The detail of the calls is contained on a disc and transcript in Exhibit ZZZ. An examination of this material shows the following:-

[30]

(g) It appears that the accused, if it was she who retrieved the message, did not return the call. 62 On the next day, 7th January 2004, Detective Gaut rang the landline again, but on this occasion there was no answer. He called around in person and spoke to the accused later in the day, and arranged for her to come to the Manly Police Station on 8th January 2004 to participate in an interview. A lengthy interview took place on the following day, which was recorded, and is in evidence. 63 The Crown has argued that this evidence is highly cogent in enabling the jury to conclude that the accused knew that Morris/Norris and Tegan would never be found. With the greatest of respect to the Crown arguments, I am unable to agree. In my view, the evidence is of such minimal probative value that a jury could not rationally conclude that the situation that developed on 6th January 2004 is explicable on the basis contended for by the Crown. The matter may be tested in this way: had Mr Chapple SC, on behalf of the accused, objected to the admission of the evidence, I would have been disposed to exclude it under the provisions of section 137 Evidence Act 1995. As I shall show, the evidence has very little probative value, and, such value as it may have possessed, would have been very substantially outweighed by the danger that the jury would have misused the evidence. This is demonstrated by the fact that the Crown wishes to urge upon the jury the very matter at the heart of the potential for misuse of the evidence, namely, an inferential process of deduction heading directly towards consciousness of guilt of murder. The evidence, however, is feather-light, and is not capable of supporting such an inference. I shall now provide my reasons. 64 First, as I have mentioned earlier, during the first call, the caller did not identify himself in any way. He said:- "Hello Keli (pause). Hello, hello." 65 In his evidence in chief, Detective Richard Gaut claimed that he believed he had identified himself during this call. It is clear, however, that he did not. There is no evidentiary basis for suggesting that the accused would have recognised his voice. 66 The intercepted call has Keli speaking to a person in the background and complaining that something is wrong with the phone. 67 The caller is then heard to repeat, "Hello Keli, hello, hello." I am perfectly satisfied that nothing of any probative value can be obtained from the details of this first call. 68 Secondly, on the following day, when Detective Gaut told the accused he thought she may have been avoiding his call, she responded that there was something wrong with the phone and invited him to check it. He did not. The fact that the telephone intercept picked up the Detective's voice is not conclusive of the fact that it would have been audible to the person receiving the call at the other end. Thirdly, the accused's actions in immediately making two calls, which had to do with the booking of her wedding reception, demonstrates how unlikely it is that she had any idea as to the identity of the caller, or the reason for the call. Her behaviour in this regard is entirely inconsistent with the inferences suggested by the Crown. 69 Finally, it is true that Richard Gaut then, at 9:54am, rang and left a message asking the accused to ring him at Manly Police Station. It appears this message was retrieved shortly after it had been left, although there is no evidence as to the identity of the person who retrieved it. Assuming, however, that it was the accused, I do not think it is open to the jury to infer that her failure to ring him back on that day had any particular significance, and certainly not the significance attributed to it by the Crown. In essence, the evidence relating to this second call is simply not capable of giving rise to the inference which is sought to be relied upon by the Crown. 70 On 7th January 2004, Detective Gaut rang the landline once again, but on this occasion there was no answer. No inference of any kind can be drawn from that fact. It should be noted that Manly Police Station was less than 400 metres from where the accused was living. There was no problem in Detective Gaut going to the accused's home, as he did later that day. There was nothing in the conversation the accused had with Richard Gaut, when he called at her home, which would support the inference sought to be relied upon by the Crown. Indeed, the accused expressed her concern arising out of the fact that she had not heard from him for a number of months. 71 Finally, it might be said that the message left on the answering machine by Detective Gaut on 6th January 2004, in its terms, gave little scope for any hope that Tegan may have been located. It should be added that, in the recorded interview Detective Gaut had held with the accused back in May 2003, there was, to say the least, very little empathy between them. Indeed, the interview shows the detective reacting adversely to her explanations, and indicating that he had no belief in those explanations. He made it clear beyond doubt that he was very sceptical, indeed hostile, towards her, and displayed overall little sympathy for her position. Certainly, the accused would have been entitled to view their relationship that way. As the interview on 8th January 2004 shows, the meeting between Detective Gaut and Keli Lane, from her perspective, was dominated by her fear of losing her parents, her fiancé, her friends, and her job. She was also very concerned that she would lose the custody of her daughter XXXX, if it were to come to light that she had given a child away. 72 This discussion with the detective also shows that the accused knew very well that in the interim he had been contacting her friends on a regular basis. She expressed her concern that this situation was causing her to lose friends, especially since the detective had been contacting people who had no real connection with her during the years when Tegan and the other children had been born. It is clear she knew the detective had been informing these people of the incidents in her life she wished to keep secret. This state of her knowledge was later confirmed during the telephone conversation she had with Kati Cummins on 9th January 2004. I mention these things because they make it clear that, firstly, she was by no means disinterested in the police investigation. To the contrary, she was dismayed by it and its consequences for her in terms of loss of family and friends. Secondly, it is palpably clear that she would have been aware, prior to 6th January, that the police enquiries had failed to locate Tegan. It is clear that she saw the police activities as focussing on, as she saw it, a campaign that would bring her shame and embarrassment, and be likely to result in the loss of many former and present friendships. All this combines to provide a further reason for concluding that the inference the Crown seeks to draw is quite unrealistic. 73 For all these reasons, I am satisfied that the evidence falls well short of fulfilling the necessary conditions to enable it to be placed before the jury as conduct pointing towards consciousness of guilt. It could not be seen as an implied admission of guilt in respect to the murder charge. The problem, of course, is that the evidence is already before the jury. What should be done? In my view, I should simply indicate my conclusion that the Crown cannot advance the argument under discussion. Further, to put the matter beyond doubt, I propose to make an order limiting the use of the evidence as simply available to explain the context of the discussions between the accused and the police officer on the following day. If necessary, the jury should be directed that this is the only use to be made of the telephone calls on 6th January 2004. I will be guided by the parties as to whether such a direction is necessary. Intercepted conversations 74 A number of conversations were recorded during intercepted telephone calls and listening device intercepts. The Crown wishes to go to the jury on the basis that certain statements in this material are "consistent with the Crown case and inconsistent with the defence case". The Crown wishes to rely on these "as part of its overall circumstantial case". 75 The first principal matter arises in several of the intercepts. For example, in a telephone intercept on 9th January 2004 - a very lengthy telephone conversation with her friend, Kati Cummins - the accused, speaking of her husband, said:- "I'm more than willing to tell Neil, like I do think in the end it'll be better. But that's not going to be the end of it. Like, if it was that easy, then I would of told him ages ago. But Richard's going to dig and dig and dig until he gets whatever he wants. Like he, that's what he's going to do, and it's going to hurt a lot of people." 76 Kati Cummins replied:- "But he's got nothing, so how can something come out if he's got nothing?" 77 The accused responded:- "'Cause that's, he wants to, he wants to find out what he doesn't have… But can you imagine? It's, like, going to just hit the papers and my parents are going to be so embarrassed and it's going, it's going to be a fucking disaster. And I just don't know why he, if he's so gung-ho about wanting something to happen, why the fuck didn't he do it three or four years ago before I was with Neil and had XXXX and, you know what I mean." 78 Kati Cummins reassured the accused that the best thing to do was to tell her family. She added, "Once you've told them, it'll be alright." The accused said:- "But, it's going to keep going on, that's the thing. If I knew that by telling them that would end it, that would be great, but it's not." 79 Later, on 20th January 2004, the accused was speaking to Neil Pattinson on the telephone. By now, she had told him of the earlier births and that she had given children away. She had not, however, told her family at this time. During the conversation, she discussed with Neil Pattinson the prospect of telling her parents that afternoon. It was clearly a prospect that filled her with dread. She then mentions the second principal matter relied on by the Crown. The following conversation is recorded:- "Keli: I don't even know how to put into words, you know, like I just, it's just going to be so hard to hurt someone again. Like I've already hurt you and that's just ripped my guts out all week. You know, like I felt sick all week, and… Neil: Well don't, 'cause I'm alright. Keli: Yeah, but it's easy like, not easy for you to say that but it's really hard to build up to something like this, and do it. Like, it's you know, what I did was so fucking stupid. And to have to repeat it and talk about it constantly, it's just as bad. It's just as hurtful you know… And I just feel like I'm going through it all again and I'm sick of talking about it. I'm sick of thinking about it… Like, I know I have to do it and I'm going to do it this afternoon but… Neil: Doesn't make it any easier. Keli: It doesn't make it any easier. Neil: No. Keli: And I'm frightened that, like, once I tell them and then I have to come home with XXXX and try and be, you know like it's really, it's a lot of pressure on me to have to go through that and then pretend everything's ok straight afterwards, like. And they're going to be furious and that's their right. Like I understand all that but it's hard enough telling them what I did let alone that, (crying) that they have to speak to the police about it. You know? Neil: Yep. Keli: Like, I just can't get over that hurdle. It's like, here's a massive bombshell. Oh by the way, and… Neil: Yeah. Keli: I just can't (pause) get my head around it. (Crying) But I have no choice. You know? I have no choice and that's how I felt ten years ago and that's how I feel now… Do you know what I mean? Neil: Yeah. Keli: Like (pause) and it serves, serves me right and that's fine and I'm, you know I'll cop whatever they say to me that, that's it it's just doing it that's hard. It's not - it'll actually probably be a relief once I've done it. … because they can call me a slut or a moron or a dickhead or whatever. That, that's fine. But it's just the actually going in there and doing it." 80 On 21st January 2004, there was a further conversation between the accused and Neil Pattinson. It appears the accused had not spoken to her parents about the events in her past on the previous afternoon. The conversation shows the two people discussing the prospect of Keli telling her parents later that day. The conversation, at one stage, is heard as follows:- "Keli: It's just like, where do I start? You know, and I don't want to go into great details with them. I don't, I don't want to go through it all again. I just want to let them know like, do you know what I mean? Neil: Yeah. Keli: I just feel like shit 'cause I've got no choice. Neil: Yeah. Keli: You know? Neil: Yeah. Keli: You know, like I just feel I'm being constantly being punished. And that's my own fault I guess but you know… Neil: But we'll get through it, mate. Keli: I don't know that we will. Neil: Why not? Keli: I don't know." 81 The accused and Neil Pattinson then discuss the likely response of the accused's father and mother when she tells them about the births, the adoptions and giving children away. 82 The final listening device relied upon relates to a conversation overheard on 24th August 2004. The accused and Neil discuss the possibility that the police will "try and say possibly that you've done something". The accused, in that context, says:- "What, like I'm not stupid. Well, I now look stupid, don't I. I know exactly that's what they're trying to infer, right, I know it's gunna cost us a hell of a lot of money, but what choice do I have. I don't have any more choices."

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Defence submissions and resolution of the intercept issues 86 Mr Chapple SC has argued that the first aspect of the evidence - e.g. "But it's going to keep going on, that's the thing" - is capable of indicating a state of mind on the part of the accused far removed from that contended for by the Crown. Senior Counsel argued that the brief statements made by the accused, taken out of context as they appear to be, are simply not capable of supporting the proposition advanced by the Crown, namely that they reveal a state of mind on the part of the accused that Morris/Norris and Tegan would never be found. 87 The state of the law, in general terms, is not in dispute. Where material is relied upon as an admission (see Evidence Act, Dictionary definition), the trial judge has a discretion as to whether the evidence should be admitted or excluded. Where it is admitted, it is generally a matter for the jury to determine whether it has probative value and to evaluate the weight to be attached to that probative value. No exercise of discretion arises to exclude the evidence once it has been admitted, even in circumstances where it is asserted that it would be dangerous for a jury to act upon it (R v Singh-Bal (1997) 92 A Crim R 397, applying the High Court's decision in Macpherson v R (1981) 147 CLR 512). 88 The Crown, however, does not rely on these first conversations as admissions. Nor does it suggest that they may be regarded as conduct demonstrating a consciousness of guilt. Rather, the Crown argues they are simply relevant facts to be added to the Crown's circumstantial case. They are, as I mentioned, said to be "consistent with the Crown case and inconsistent with the defence case". In my view, however, these rather moderate propositions are at variance with the actual submission the Crown wishes to make to the jury. The submission proceeds on the basis that the accused knows that Morris/Norris does not exist, and that Tegan will never be found. If it were accepted that the cryptic remarks she made were capable of reflecting this state of mind, it must also be the case that she knew these things because she was aware Tegan was dead, and that she had "invented" Morris/Norris. It is only a brief step from those inferences to conclude that the conversations are really an admission that she murdered the child. Viewed in that way, contrary to the Crown propositions, the statements can only be seen as either an implied admission of guilt, or conduct reflecting a consciousness of guilt. 89 The Crown did not seriously contest that, if either of those two situations were the case, it would then be necessary for the Court to consider the conditions required in Edwards v R before determining whether reliance could be placed upon the statements in that way. In my view, those conditions could not be satisfied. The words uttered by the accused could not be seen as being capable of evidencing a consciousness of guilt of the offence of murder, that is, operating as an implied admission of guilt. 90 This is not to say that the Crown could not make some comment about its view of what the words meant. It might, for example, suggest to the jury that, on the interpretation favoured by the Crown, the accused was possibly expressing a view that she was by no means optimistic about an early conclusion to the investigation by the police. But, as I see it, that is about the limit of the submission that can be made. To go any further would be to suggest either the existence of an implied admission, or conduct evidencing consciousness of guilt. That boundary must not be crossed by the Crown in its submissions to the jury. If it were, I would not hesitate to give a forceful direction to the jury or, in an extreme situation, I would require the submission to be withdrawn in the face of the jury. 91 A moderate comment of the kind I have mentioned would not be inappropriate, given that the evidence is before the jury without objection. That would entitle Mr Chapple SC to make, I trust, an equally moderate response suggesting that the interpretation urged by the Crown is not one that arises naturally from either the words used, or the context in which they were employed. 92 I turn then to the second aspect of the Crown intercept argument. This arises from the expressions used by the accused - e.g. "I didn't have any choices then. I've got no choices now." 93 The genesis of this expression appears to emerge from the interview between Detective Senior Constable Richard Gaut and the accused at Manly Police Station on 9th May 2003. The transcript of this interview is Exhibit PPP in the trial. The relevant passages in their context may be seen between pages 51 and 53 of the Exhibit. I shall quote selectively from the transcript :-

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For the moment, I would simply say that, in my view, the Crown, as a matter of law, cannot advance this submission in relation to the second aspect of the intercept argument. Perpetuating the Morris/Norris lies 95 The Crown has submitted that, accepting that the Morris/Norris account is a lie, it wishes to go to the jury on this basis: it will suggest to the jury, firstly, that the accused perpetuated the lie on a number of occasions, where, if another version and been available as to what happened to Tegan (for example, the accused handing over the baby to an undisclosed person, in an informal, illegal adoption), the accused would have been expected to have disclosed that situation or brought forward that version. The Crown will submit accordingly that the perpetuation of the Morris/Norris lies is probative to disprove that the accused informally adopted out Tegan to some other unknown person or persons. 96 In support of this argument, the Crown points to the perpetuation of the "Morris/Norris lies" in the three ERISPs and in the conversation with Detective Gaut on 16th October 2002. The Crown also refers to the circumstances of the trip to Wisbeach St on 19th May 2003. Finally, it points to the situation at the Inquest hearing on 27th October 2004, and the evidence given by Mary Bova before McClellan CJ at CL. It also relies on the defence opening in the trial. 97 The Crown wishes secondly to submit that the only rational conclusion from all this behaviour is that the maintenance of the Morris/Norris lies in the face of the accused's overwhelming distress arises out of a consciousness of guilt for her murder of Tegan. 98 I have come to the firm conclusion that the Crown is not entitled to advance this second argument before the jury. The starting point for the rejection of this argument is the view I reached in relation to the allegation that the Morris/Norris explanation is capable of being a lie or lies showing consciousness of guilt. For the reasons I have already given, I do not accept that the lies may be used in this way. 99 If it be the case that the Crown should be confined to use these lies, if they be lies, as simply matters that affect the credibility of the accused, then even more so is that the situation in relation to the alleged perpetuation of those lies. In addition, for the reasons I will state, the "perpetuation" of the explanation cannot be used to disprove that the accused informally adopted out the child to a person other than Andrew Morris/Norris. 100 It is clear that the jury will have to consider whether the Crown has been able to prove that the child was not handed over to a person whose identity has, as yet, not been revealed. If the jury accept that Andrew Morris/Norris is a fictitious person, and that the accused has not told the truth in that regard, they will be required to set aside that explanation and consider whether, having regard to the evidence they do accept in the trial, the accused is nevertheless guilty of the charge of murder. One hypothesis that must be entertained is the possibility that the accused handed over the child to a person whose identity, for whatever reason, she wants to keep secret, even at this stage. The Crown will have to disprove or eliminate that as a reasonable possibility or explanation for the apparent disappearance of the child. Moreover, it should not be overlooked that the Crown will have to prove the death of the child at the hands of her mother. This is by no means an easy task in the present trial. 101 In my view, the accused's "perpetuation" of the Morris/Norris explanation is no more than an illustration of the accused "sticking to" the basic story she has told since 2001. True it is that there have been variations and inconsistencies in relation to this version. Those are matters the jury will be entitled to take into account. But I am unable to accept that the Crown can use the "perpetuation" argument, either as conduct evidencing consciousness of guilt, or as a basis for demonstrating it has proved that the accused did not give the child to an unknown person. 102 As to the first matter, there is little more that needs to be said. Since the alleged lies themselves cannot be left as consciousness of guilt, it must be the case, as I have said, that the "perpetuation" argument based on those lies cannot, for the same reason, be left on that basis. 103 As to the second matter, I made a number of points relevant to this issue when there was argument as to the circumstances surrounding the appearance before the Deputy Coroner on 31st August and 27th October 2004. The discussion in the transcript may be regarded as part of this decision. The points I made during argument are precisely the points, it seems to me, to be apposite to the present argument, even though the point at issue there was somewhat different. Before the Coroner, McClellan CJ at CL, and before this court, the accused had in her favour the presumption of innocence and a right to remain silent. To the extent that she has maintained the essence of the original explanation in each of those hearings, and has offered no further explanation, there cannot and should not be drawn against her an adverse inference. The accused was, and is, under no obligation to present a further explanation, and she is perfectly entitled to rely on the explanation she has given for the purpose of these proceedings. It may be an explanation that is unacceptable to the jury, but that is a different matter. 104 In addition, it needs to be stressed that the onus of eliminating any reasonable explanation or hypothesis inconsistent with guilt lies fairly and squarely upon the Crown. In my view, the Crown cannot shift that onus by pointing to the accused's repeated affirmation of the version she has given concerning the disappearance of Tegan. The essential problem with the argument the Crown wishes to put is that it really does, in my view, have the indirect effect of reversing or inverting the onus of proof. It says, "unless you come up with an explanation that is better than the one we have invited the jury to disbelieve, then we do not have to disprove or eliminate any other possibilities that might have been provided by you as an alternative to the original explanation. The jury can be satisfied that, on the basis of your failure to do so, there is no other explanation available and that you are guilty of murder." 105 In fairness to the Crown, it must be noted that, in its final oral submissions, the Crown suggested that this argument could only arise if the Morris/Norris explanation were permitted to be relied upon as a lie reflecting consciousness of guilt of murder. Strictly speaking, in view of the earlier decision I have made in that regard, it must follow that the present argument cannot succeed. But I have thought it expedient to deal with it, none the less. There should, in my view, be no doubt in anybody's mind that an argument in the precise terms sought to be advanced by the Crown cannot be allowed. 106 I am firmly of the view that the argument the Crown wishes to advance trespasses upon the accused's right to remain silent. It invites an adverse inference from the exercise of that right, and more significantly, it has, at its core, an inversion of the onus of proof. The argument reverses the onus confronting the Crown. At the very least, it may tend to do so in the minds of the jury. In addition, it contains a leap to a conclusion of murder that completely eliminates the obligation cast on the Crown of proving the essential ingredients of the charge. This "leap" centres upon nothing more than the fact that, throughout the interviews, the committal, the inquest, and this trial, the accused has given no explanation other than the one the Crown considers dubious. That fact, of itself, or coupled with other evidence, could not eliminate any other reasonable explanation inconsistent with guilt otherwise available for the jury's consideration. For those reasons, I do not think the "perpetuation" argument can be relied upon by the Crown for either of the two purposes it has outlined in its submissions. 107 The Crown does not dispute that it carries an obligation of excluding any reasonable explanation or hypothesis inconsistent with guilt. There is, of course, nothing to stop the Crown from presenting an argument to suggest it has excluded the likelihood of the accused having handed over the baby to an undisclosed person. In that regard, the Crown would be entitled to submit that the likelihood of that situation having occurred is at a low level. It would be an unusual thing for a mother to do. Secondly, the tendency evidence might suggest that such a handing over would have been, by no means, a long-term proposition. Thirdly, the Crown would be entitled to point to the fact that the accused has certainly failed to advance any such explanation in her dealings with the police, or with anyone in authority. Fourthly, the Crown would be entitled to point to the fact that, despite extensive publicity, no one has come forward to establish that he or she was the person who took the child from the accused on 14th September 1996. There may be other reasonable and perfectly permissible arguments that could be advanced in this connection by the Crown. Where I think the line must be drawn, however, is in relation to any submission that points to a situation where the accused has been entitled to rely upon the right to silence but has not put forward the further explanation. The Coronial Inquest, the argument before before McCellan CJ at CL, and this trial are obvious examples. Secondly, if the jury were to reject the Morris/Norris story, they must simply put it to one side. Rejection of that explanation cannot prove the Crown case, nor can it be permitted to cast some type of onus on the accused to prove the existence of other possibilities. I realise that this ruling seriously interferes with the Crown's wish to point to the distress exhibited by the accused during the Coronial Inquiry before the story was released to the media for mass publication. I am firmly of the view, however, that Crown restraint is necessary in this area, and that any breach of this ruling carries with it a serious danger of miscarriage. Duality of approach - comment 108 I remarked earlier in these reasons that the parties share between them a certain duality of approach that borders, or may border, on inconsistency. The Crown advocates that the jury should not accept the accused's explanation that she handed the baby over to Andrew Morris/Norris. Further, the Crown argues that he is, in any event, a fiction. As I have said, a large portion of the Crown case seeks to demonstrate that this explanation is untrue. The Crown relies on a process of reasoning that tends to move directly from disbelief of the accused's explanation to satisfaction that she in fact murdered the child. On the one hand, however, the Crown suggests that disbelief of the explanation is merely one step in the process of reasoning. On the other hand, the Crown appears to suggest that acceptance of its argument in this regard may lead directly to a finding of guilt. 109 The defence also relies heavily upon the explanation given by the accused. It has sought throughout the trial to demonstrate that the Crown has not been able to prove that Andrew Morris/Norris does not exist. On the other hand, the defence opening makes it clear that it will also suggest to the jury that the Crown may have to eliminate the possibility that the accused handed the baby to an undisclosed person, a person other than Andrew Morris/Norris. At least, that is a possible way of predicting the defence position. In fairness to Mr Chapple SC, he has not been called upon to state his final position in this regard. The Crown case is still unfolding and he is not obliged, in this trial, to do so at this stage. 110 The duality I have referred to is simply this: both parties, it seems, treat the assertion that Tegan was handed over to Andrew Morris/Norris as central to their positions. Yet, each maintains, albeit for quite different purposes, this is not the end of the matter. 111 No doubt all this will be clarified in submissions to the Court before final addresses are made. The situation needs to be clarified because it is important that there be no inconsistency or misunderstanding in the way the matter is left before the jury. Many of the issues I have dealt with in this decision reflect my attempt to prevent those inconsistencies of approach from blossoming into appellable error. 112 As presently minded, although I appreciate that no submissions have yet been made on the point, I would be inclined, when outlining the issues to the jury, to give a direction that would be in similar terms to the following:- That if the answer to the first question is, 'yes, I can draw those reasonable inferences or conclusions in the case against the accused', you still have to ask yourself the second question. The second question is this:

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Conclusion 114 My decision effectively puts out of Court the prospect that the Crown may rely upon lies as evidence of consciousness of guilt. Secondly, the decision restricts the Crown in its submissions in two or three other ways. On the other hand, I have sought to set out in this decision areas in which the Crown can refashion or moderate its submissions to make, to my mind, quite effective points in its endeavours to secure a conviction, if that result be warranted. 115 It might seem that I have been unduly harsh towards the Crown in respect to these rulings. But it needs to be said that this is a very unusual trial. Its circumstances are, in many respects, unique. It is the position that, in this trial more than most, it is necessary to take great care to ensure a miscarriage of justice does not occur. My overall task is to ensure that the Crown is able to present its case fairly and that the accused has a fair trial. If I appear to have been cautious in a number of the matters upon which I have made rulings, I candidly admit this to be the case. The unusual features of this trial require that the trial judge proceed with considerable caution, just as there is a need for the Crown, and indeed the defence, to exercise a similar degree of caution in final submissions. In my view, this is a case where considerable restraint will be necessary in the final addresses to the jury. I expect both the Crown and the defence to respect the rulings that I have made during the course of those final addresses. 116 It will be necessary to revisit the issue of lies for the purpose of preparing a suitable direction. MFI 3 is the direction I gave to the jury shortly after the close of the Crown opening. It should form the basis of the final series of directions on lies that are to be given to the jury. The trial has, of course, moved on since then, and I will look to assistance from counsel as to the final form of the direction or directions necessary in that regard. 117 Finally, I shall request the parties to assist me in relation to any direction or orders that need to be given to reflect the decisions made in this judgment.

At a glance

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Judgment (48 paragraphs)

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Cases Cited (13)

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