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13
Court of Criminal Appeal 14 July 2011

R v Lane

[2011] NSWCCA 157

Also reported as (2011) 221 A Crim R 309
Homicide
CRIMINAL LAW SECTION 5F CRIMINAL APPEAL ACT APPEAL ALLOWED

Citation: R v Lane [2011] NSWCCA 157
Court: Court of Criminal Appeal, NSW
Date: 14 July 2011
Judges: McClellan CJ at CL, Simpson J, Howie AJ

Background

The respondent was tried for the murder of her infant child, Tegan, born in September 1996. The Crown alleged she had secretly concealed the pregnancy and, after leaving hospital with the baby, killed the child. Central to the Crown's case was that the respondent subsequently gave a series of false accounts about what had become of Tegan, including telling an Anglicare worker that she had handed the child to a couple from Perth, and telling police in ERISP interviews that she had given the child to the natural father (referred to variously as Andrew Morris or Andrew Norris).

The Crown sought to use these false statements as evidence of consciousness of guilt, on the basis that the respondent had lied to conceal the true fate of the child. The trial judge, Whealy J, ruled against the Crown, holding that the statements could not be used as evidence of guilt because doing so would require the jury to engage in circular or "bootstrap" reasoning. That is, the jury would need to first accept that the respondent was guilty of murder in order to conclude she had lied, and then use the lie to prove guilt.

The Director of Public Prosecutions appealed that ruling under section 5F of the Criminal Appeal Act, arguing it substantially weakened the prosecution's case.

  • Whether the Crown had standing to appeal Whealy J's interlocutory ruling under section 5F(3A) or section 5F(2) of the Criminal Appeal Act.
  • Whether the trial judge erred in ruling that the respondent's false exculpatory statements could not be used by the Crown as evidence of guilt (consciousness of guilt).
  • Whether the lies, in the circumstances of this case, necessarily required impermissible circular reasoning, or whether they could properly be left to the jury as probative of guilt.

Decision

The Court of Criminal Appeal, on 16 November 2010, allowed the appeal and ruled that the evidence of the respondent's false statements was admissible as evidence of her guilt. The Court indicated it would publish reasons later; this judgment contains those reasons.

On jurisdiction, all three judges were satisfied the Court had power to hear the appeal. Simpson J (with Howie AJ agreeing) concluded that, even if the ruling was not strictly a decision on "admissibility" within the meaning of section 5F(3A), it was plainly an interlocutory judgment or order within section 5F(2). McClellan CJ at CL reached the same conclusion, noting that the ruling concerned the permitted use of admissible evidence rather than its admissibility as such, and that prior authority supported section 5F(3A) extending beyond strictly defined admissibility decisions.

On the substantive question, the Court found that Whealy J had erred in his application of the "consciousness of guilt" principles. The trial judge had placed too much weight on the risk of circular reasoning, treating it as determinative when the question of whether the statements were lies, and whether those lies reflected a guilty mind, were matters properly for the jury to assess in the context of the whole Crown case. The Court held that the evidence of false statements was capable of being used by the jury as evidence of the respondent's guilt, provided appropriate directions were given.

Simpson J noted that, in substance, what Whealy J had done was effectively limit the use of admissible evidence under section 136 of the Evidence Act 1995, though the parties had not framed it in those terms at trial.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's ruling limiting the permitted use of admissible evidence (rather than excluding it outright) may constitute either a decision or ruling on admissibility under section 5F(3A) of the Criminal Appeal Act, or an interlocutory judgment under section 5F(2), and is therefore susceptible to Crown interlocutory appeal.

  • A Crown interlocutory appeal under section 5F(3A) is only available where the relevant ruling eliminates or substantially weakens the prosecution's case; that threshold was met without contest in this proceeding.

  • The consciousness of guilt principles from Edwards v The Queen (1993) 178 CLR 193 do not automatically preclude lies from being used as evidence of guilt merely because the jury must assess the broader circumstantial case to determine whether statements were lies. The risk of circular reasoning is a matter to address through jury directions, not necessarily a basis for excluding or limiting the use of the evidence.

  • Where a defendant provides false accounts to explain away the disappearance of an alleged victim, those accounts may, in appropriate circumstances, be left to the jury as capable of supporting an inference of consciousness of guilt.

  • In practice, a ruling that confines admissible evidence to a credibility purpose only (rather than guilt) can constitute a limitation under section 136 of the Evidence Act 1995, even where the parties and the trial judge do not explicitly invoke that provision.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F(2), 5F(3A)
- Evidence Act 1995 (NSW), s 136

Cases
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- R v Cook [2004] NSWCCA 52
- Quinlan v R (2006) 164 A Crim R 106
- R v Harker [2004] NSWCCA 427
- R v Jennings [2010] NSWCCA 193
- R v Keli Lane [No 13] [2010] NSWSC 1540
- R v Powch (1988) 14 NSWLR 136
- R v Bailey (1988) 36 A Crim R 30
- R v Edelsten (1989) 18 NSWLR 213
- R v Ray (2003) 57 NSWLR 616
- R v Heyde (1990) 20 NSWLR 234
- R v Sutton (1986) 5 NSWLR 697
- R v Mercer (1993) 67 A Crim R 91
- R v Laz (1998) 1 VR 453
- R v Russo [2004] VSCA 206
- R v Sirillas [2006] VSCA 234
- R v Harron [1996] Crim LR 581
- R v Middleton [2001] Crim LR 251
- R v ST (1997) 92 A Crim R 390
- R v Zheng (1995) 83 A Crim R 572