R v Lane

Judgment 1McCLELLAN CJ at CL : The respondent was tried for the murder of her baby named Tegan. On 10 November 2010 the trial judge Whealy J determined that the Crown could not rely upon statements made by the respondent, in which she explained that she had given the child to others as evidence of her guilt. It is the Crown case that the respondent lied when she said she had given the child to other people out of a consciousness of her guilt because if she had told the truth she would have admitted the alleged offence. 2The Director of Public Prosecutions appealed the ruling made by Whealy J pursuant to s 5F(3)(a) of the Criminal Appeal Act . Section 5F(2) provides that the Crown may appeal against any interlocutory judgment or order made by the trial judge. The section was amended to s 5F(3A) which expands the Crown's right of appeal and provides that the Director may appeal to this Court "against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case." 3As I make plain below the ruling made by Whealy J was as to the purpose for which the disputed evidence was relevant. In R v Jennings [2010] NSWCCA 193 this Court determined that a decision as to the permitted use of admissible evidence was a decision contemplated by s 5F(3A). Latham J referred to the decision of this Court in R v Harker (2004) NSWCCA 427 where Howie J (Santow JA and Bell J agreeing) said: "In any event it seems that the legislature had in mind that the Crown could appeal against a determination in respect of the admissibility of evidence that was not a ruling on admissibility. It is unnecessary for present purposes to determine the scope of the matters that might fall within the scope of s 5F(3A) but it seems clear to me that the legislature wished to avoid the section being restricted to rulings on the admissibility of evidence strictly defined. In my view a determination under s 100(1) not to dispense with the notice provisions in relation to tendency evidence is at least a 'decision ... on the admissibility of evidence' and thus within the scope of s 5F(3A)." 4There was no issue that the ruling which his Honour made, that the evidence was not evidence of the guilt of the respondent, substantially weakened the prosecution case. 5In any event if as the respondent argued the Crown was not entitled to bring this appeal relying on s 5F(3A) Whealy J's decision was a judgment or order amendable to appeal under subs(2). 6The appeal was heard by this Court on 15 November 2010. On the following day the Court announced its decision and determined that the appeal should be upheld. The Court ruled that the relevant evidence could be relied upon by the Crown as evidence of guilt of the respondent. The Court indicated that it would publish its reasons at a later date. These are my reasons for joining in that decision. These reasons were prepared before the trial had concluded. 7The respondent was charged with one count of murder and three counts of perjury. The perjury charges relate to allegedly false statements which the respondent made in affidavits filed in connection with two sets of adoption proceedings in relation to two of her other children. The first two perjury counts relate to statements made with respect to the adoption of the first child. The third perjury count relates to statements made in an affidavit dealing with the adoption of her third child. 8The Crown case is that the respondent deliberately kept her pregnancy with Tegan secret. The evidence indicates that her pregnancy was unknown to any of her family and friends or her boyfriend. Shortly prior to the birth the respondent attended at Ryde Hospital where she allegedly told lies to the staff about her background and family situation. The Crown alleges that these lies were told to prevent her family and friends learning of her true situation. The alleged lies include statements about her address, the existence of a midwife and other background matters. 9Tegan was born in Auburn Hospital. After the birth the respondent and the child were transferred to the maternity ward. This occurred at about 10.30 pm on 12 September 1996. The respondent remained in the hospital until some time on 14 September 1996 when she left presumably with the child. Both had been checked by the medical staff and were deemed free to go. The Crown alleges that lies were told to the nursing staff and a social worker before she left the hospital. It is alleged that these lies were again told to avoid others knowing of her true circumstances. 10This appeal is not concerned with any of the alleged lies to which I have referred. The alleged lies which are the subject of the present proceedings relate specifically to what the respondent said she did with the child after leaving the hospital. They were described by Whealy J in the following terms: "a. The Perth couple lie From mid 1999, the accused had been dealing with a helpful and sympathetic employee of Anglicare - Virginia Fung - in connection with the adoption of her third child, Aaron. An unusual set of circumstances had led a man John Borovnik, who worked for DoCS, to learn, unexpectedly and accidentally, that the accused may have had a second child who had been born at Auburn Hospital in 1996. When informed by Mr Borovnik that he was going to notify the police about Tegan's birth, the accused sent a fax to Virginia Fung on 25 October 1999. This fax stated that the accused had handed Tegan over 'to a couple from Perth'. The fax suggested that this couple had 'befriended us' shortly before the birth. She asked Virginia Fung to inform Mr Borovnik of this situation. The Crown has suggested that this was undoubtedly a lie told by the accused. In this regard, it relies on the fact that, during the accused's ERISP interviews, she prevaricated in relation to that explanation. The Crown asserts that this lie might properly be characterised as one showing a consciousness of guilt of the murder of Tegan. Mr Chapple SC, on behalf of the accused, disputes the lie may be used in this way and argues that, if it be a lie, it simply should be restricted to a credibility lie and its use limited in that way. b. The Andrew Morris lie The accused told Detective Kehoe, in her first ERISP in 2001, that Tegan had been handed over to Andrew Morris, the natural father. The Crown wishes to argue that this was a lie. If it can demonstrate that it was a lie, it seeks permission to raise before the jury the submission that this lie constitutes an awareness or consciousness of guilt. Mr Chapple SC submits that the Court should not permit that this be done. c. The Andrew Norris lie In later ERISPs involving Detective Richard Gaut in 2002, the accused maintained that she handed over the child to the natural father whose name was Andrew Norris. The parties take similarly contesting positions in relation to this alleged lie. 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 of perpetuation' issue to a later stage in this decision.'" 11Whealy J gave a comprehensive and carefully reasoned judgment. His Honour discussed the law relating to lies as evidence of guilt. He referred to and extracted passages from the judgment of Simpson J in R v Cook [2004] NSWCCA 52. I need not repeat them in these reasons. See also Quinlan v R (2006) 164 A Crim R 106 at [15]. 12Whealy J also discussed what he described as "an important qualification" to the approach described by Simpson J. His Honour said: "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." 13His Honour referred to a number of decisions to similar effect: R v Zheng (1995) 83 A Crim R 572; R v ST (1997) 92 A Crim R 390 at 394; R v Mercer (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. 14In Zheng Hunt CJ at CL, with whom Smart and Studdert JJ agreed, stated that if it was only possible to conclude that an accused had lied by finding that he or she committed the offence with which they have been charged the alleged lie could not be used as evidence of guilt. Of course a finding of guilt of the offence may have the consequence that an accused told a lie but because the lie could only be established by a finding of guilt it was not itself evidence of that guilt. This has been described as "circular reasoning." 15Whealy J concluded that the reasoning of Hunt CJ at CL in Zheng was applicable to the present case leading to the conclusion that the alleged lies could not be used as evidence of guilt. With respect to the lies described as the Andrew Morris/Norris lie Whealy J concluded that: "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." 16Whealy J's reasons include a helpful and comprehensive summary of the evidence which the Crown asserted independently of a finding of guilt proved that the Andrew Morris/Norris account was a lie. It includes evidence that no-one of that name had ever lived at the relevant address or ever visited those premises. The Crown alleged that the respondent made a number of changes or additions to her story including the number of times she had been visited by Andrew and his mother at the hospital and other friends associated with her contact with this person. There is evidence that the respondent displayed a lack of interest in genuinely looking for the place where she claimed she had had a relationship with Andrew Morris/Norris. There was other evidence from intercepted telephone calls of her disinterest in "hunting down" Andrew Norris capable of supporting a conclusion that the respondent had lied. 17With respect to this evidence his Honour concluded that, notwithstanding the Crown's assertion that from this evidence the alleged lies could be established that because they did not fit the description of "immediate pieces of independent evidence capable of demonstrating in a straight forward and simple manner that the defence case is a lie", the lies could not be relied upon as evidence of her guilt. 18Whealy J also referred to other evidence that the Crown submitted could satisfy the jury of the alleged lies. However, his Honour said that their forensic strengths were variable and concluded that the Crown was seeking to mount a "bootstrap argument upon bootstrap argument." His Honour concluded that although there may be, as the Crown argued, a considerable body of evidence that might make the respondent's explanation otherwise unbelievable this was all part of the general circumstantial case made against her by the Crown. 19His Honour ultimately stated: "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." 20Notwithstanding his Honour's careful analysis of the situation I have respectfully come to a different conclusion. His Honour's discussion of the evidence and the explanation of that material given to this Court makes plain that there is a body of evidence from which the jury could conclude that the respondent lied when she said she had given the child to Andrew Morris/Norris. Although it is true that the Crown also relied on that evidence as part of its circumstantial case that does not have the consequence that a conclusion that the respondent lied is dependent on a finding that she murdered Tegan. 21Of course there could be an innocent explanation for her statements, even if the jury finds that she lied. The jury will be reminded of the caution with which they must approach lies. However, his Honour's finding that if the jury is satisfied that the appellant told lies in relation to Andrew Morris/Norris the lie could not be used as evidence of guilt was not open. 22Whealy J considered there was a further reason why the Andrew Morris/Norris lies could not be left as evidence of the respondent's guilt. His Honour said: "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. 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 fact of the Crown's obligation to prove the charge beyond reasonable doubt, and the direction to be given to reinforce that obligation." 23It maybe that there has been an error in the transcription of his Honour's reasons. However, it could not be the case that if the jury disbelieve the respondents' explanation they are simply to put the evidence of that explanation to one side altogether. Instead if the respondent's explanation is disbelieved it would be open to the jury to consider it, with the other evidence when considering her guilt. With respect his Honour's analysis inappropriately separates the alleged lie from the other evidence which may indicate guilt. The critical issue in the analysis is that there is evidence capable of supporting a finding that she lied and such a finding is not dependent upon a finding that the respondent is guilty. 24The DPP conceded before this Court that unless the jury were satisfied beyond reasonable doubt that the respondent lied when she gave the explanations of what she had done with the child the respondent must be acquitted. This concession was rightly made. Unless the jury is satisfied that she has lied there must logically be a reasonable possibility that the child was not killed by the respondent but given to another person. In this event the Crown would not have negatived a reasonable possibility that the respondent is innocent. But this conclusion does not involve any inconsistency in the Crown case. How the Crown case is ultimately advanced to the jury is a matter for the prosecutor. It may be that he will seek to make much of the alleged lies. But I do not presently understand the Crown case to be confined to the lies. It would seem that there is a body of other evidence of circumstances which the Crown will submit supports a conviction. 25His Honour records the fact that the Crown maintained that the lies would be used as an indispensable link in the chain of reasoning underpinning the Crown case. In a sense to which I have referred this is correct. However, it does not follow that a finding that the respondent lied would lead to a finding that she was guilty of murder. The lie may have been deliberately told but for another reason. For example, it may be that the respondent was seeking to protect the person to whom in truth she gave the child. 26Whealy J discusses the caution which this Court and some academic writers have expressed to be appropriate when the prosecution seeks to use a lie as evidence of guilt ( R v Sutton (1986) 5 NSWLR 697 at 701; R v Heyde (1990) 20 NSWLR 234; R v Ray (2003) 57 NSWLR 616; Wood "Criminal Law Update Court of Criminal Appeal (1999) 4 Judicial Review 217). Although caution is necessary it cannot be allowed to inhibit the Crown from having the benefit of the evidence when that is clearly appropriate. The present is such a case. 27The third lie was referred to as the "Perth couple lie". This lie was allegedly told when the respondent was responding to questions with respect to the adoption of her children. Whealy J's discussion of the alleged lie is as follows: "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 25 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 had 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.' 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 third child, Aaron. In the early phases of the adoption proceedings, the accused has 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 Aaron Howison. 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. 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 jut 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 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.' 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. 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." 28It may be as his Honour outlines that there are explanations for this statement which would not lead the jury, if they found the statement to be a lie, to conclude that it provided any significant evidence of her guilt. It may also be, as his Honour indicates, that it may be difficult for the Crown to satisfy the jury that it was a lie. 29However, as I understand the evidence it would be open to the jury to conclude that it was a lie otherwise than because they concluded that the respondent had committed the alleged offence. Although in his Honour's opinion the evidence that this was a lie may be weak does not in my opinion exclude it from being put before the jury. It will be for the jury to decide whether it is a lie and if they reach that conclusion the contribution, if any, which it makes to their verdict. 30The respondent allegedly repeated her lies in relation to Morris/Norris on more than one occasion. The Crown submitted to Whealy J that the respondent accordingly perpetuated her lies and the jury could be directed to approach the later occasions when she allegedly lied in this manner. If it be the case that she made the same or a similar statement on a subsequent occasion each of those occasions must be separately addressed. It may be that on the later occasion that the lie was told merely because, for whatever reason, and that reason may have nothing to do with the death of Tegan (if that has occurred), the respondent was not prepared to acknowledge that she had been untruthful on a previous occasion. In other words she may have felt trapped and found it necessary to repeat the lie. In those circumstances each lie would need to be separately considered and the jury instructed that there could be an innocent explanation for each of the subsequent statements even if the jury found them to be lies. 31SIMPSON J : On 9 August 2010 Keli Lane (the respondent) was indicted on a charge that, on 14 September 1996, she murdered Tegan Lane. The indictment also contained three counts of perjury. The respondent entered pleas of not guilty to all charges. A jury was empanelled and the trial proceeded. During the course of the trial, the trial judge, Whealy J (as his Honour then was) made a number of interlocutory rulings with respect to evidence and other matters. 32One of these rulings ( R v Keli Lane [No 13] [2010] NSWSC 1540, 3 November 2010) concerned evidence tendered by the Crown of three statements made by the respondent that the Crown contended to be lies, and lies that the respondent had told because she was conscious that she was guilty of the offence of murder. Although there was no issue that the evidence of the statements said to have been made by the respondent was admissible, and relevant to the assessment of the general credibility of the respondent, Whealy J refused to allow the Crown to rely upon the statements as evidence indicating consciousness of guilt. There is a discrete body of law, to which I will come, that governs the use that may be made of evidence of lies as consciousness of guilt. 33On 4 November 2010, during the course of the trial, relying upon s 5F(3A) of the Criminal Appeal Act 1912, the Director of Public Prosecutions ("the DPP") appealed to this Court against that ruling. Section 5F(3A) is in the following terms: "The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence , but only if the decision or ruling eliminates or substantially weakens the prosecution's case." (italics added) 34Section 5F(5) is in the following terms: "The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against." 35It was not disputed that the evidence was a significant part of the Crown case, and that its exclusion, for the purpose for which the Crown sought to rely on it, substantially weakened the prosecution's case. 36An issue did, however, arise concerning the jurisdiction of this Court to entertain the appeal, and I will return to this at a later point in these reasons. 37This Court heard argument on 15 November 2010 and, on 16 November 2010, made an order allowing the appeal, and vacating the ruling made by Whealy J, and ruled, pursuant to sub-s (5)(b) of s 5F, that the evidence in question was admissible as evidence of the guilt of the respondent on the charge of murder. 38At that point, the Court reserved reasons, but made the following brief statement: "1. While according due deference to the position of the trial judge in his appreciation of the factual matrix of the evidence in the trial, this Court is satisfied: (i) that the use of the evidence as consciousness of guilt does not involve circular reasoning; (ii) that, while proof that the respondent lied about the disposition of the child by saying that she had handed her over to Andrew Norris/Andrew Morris/the Perth couple is a necessary fact for proof of guilt, it is not sufficient to establish guilt of the respondent. Before this Court the prosecutor accepted this proposition. (iii) that there exists a body of evidence from which a jury could conclude beyond reasonable doubt that any of the accounts given by the res pondent concerning: Andrew Norris; Andrew Morris; the Perth couple; was a lie; (iv) that, subject to proper directions being given, there would be no confusion arising from the use of the evidence as consciousness of guilt; (v) that the exis tence of evidence of a large number of lies told by the respondent is not a reason to refuse to admit evidence of particular lies as part of the circumstantial case to prove the guilt of the respondent. It is not appropriate for the Crown to rely upon the 'perpetuation' of any lie as separate evidence of consciousness of guilt. In respect of the repetition of a lie each must be treated as separate evidence from which the jury may infer a consciousness of guilt. In each case the jury will have to be directed as to whether there was a reason for telling the lie other than because it revealed a consciousness of guilt. For example, the respondent may have considered herself locked into repeating the lie because of her previous lie." 39These are my reasons for joining in the order that was made and in the statement extracted above. 40It is necessary to begin with an account, as brief as the circumstances permit, of the case the Crown set out to make at trial.