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15
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
Date: 14 July 2011
Judge(s): McClellan CJ at CL, Simpson J, Howie AJ

Background

The respondent stood trial for the murder of her infant daughter, Tegan, who was born at Auburn Hospital in September 1996 and was never seen again after the respondent left the hospital two days later. Tegan's body was never found. The Crown relied on an extensive circumstantial case, including evidence that the respondent had concealed all three of her pregnancies from her family, friends, and partners.

The Crown sought to rely on three statements made by the respondent about what she had done with Tegan after leaving the hospital: that she had given the child to "a family in Perth," that she had given the child to a man named Andrew Morris (Tegan's natural father), and that she had given the child to a man named Andrew Norris. The Crown contended that all three accounts were deliberate lies, told because the respondent was conscious of her guilt in having murdered the child.

The trial judge, Whealy J, ruled that while the statements were admissible as evidence going to the respondent's general credibility, the Crown could not invite the jury to treat them as evidence of consciousness of guilt. The Director of Public Prosecutions appealed that ruling under s 5F of the Criminal Appeal Act.

Legal Issues

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F(3A) of the Criminal Appeal Act to entertain an appeal against a ruling that restricted the permitted use of admissible evidence (as distinct from a ruling excluding evidence altogether)
  • Whether the three statements constituted lies capable of being used as evidence of consciousness of guilt, applying the principles in Edwards v The Queen
  • Whether using circumstantial evidence to establish the falsity of those statements, where some of that evidence overlapped with the Crown's broader murder case, gave rise to impermissible circular reasoning
  • How the Crown should approach the repeated assertion of the same false account on multiple occasions ("perpetuation")

Decision

Issue 1: Jurisdiction

The respondent argued that Whealy J's ruling was not a "decision or ruling on the admissibility of evidence" within s 5F(3A) because the evidence was not excluded; only its permitted use was restricted. The Crown was granted leave to amend its notice of appeal to rely also on s 5F(2), which permits appeal against any interlocutory judgment or order. Simpson J found it unnecessary to resolve the jurisdictional question definitively, concluding that the ruling was either within s 5F(3A) (on the broader reading in R v Harker) or plainly an interlocutory judgment or order within s 5F(2). The Court therefore had jurisdiction on either basis.

Issue 2: The Andrew Morris/Andrew Norris lie

Whealy J had held that a jury could only find the Andrew Morris/Andrew Norris account to be a lie by accepting the entirety of the Crown's circumstantial murder case, and that using it as consciousness of guilt therefore involved circular reasoning. The Court of Criminal Appeal disagreed. Simpson J held that there was a substantial body of circumstantial evidence directed specifically at the falsity of the respondent's account, including police investigations that found no person of either name at the identified address, inconsistencies in the detail the respondent gave across multiple accounts, and evidence of her disinterest in locating the alleged father. That case of falsity was not co-extensive with the circumstantial case for murder, even if there was some overlap.

The Court confirmed that the question for the trial judge was not whether falsity was conclusively proved, but whether it was open to the jury to find, on the evidence, that the account was false. That threshold was met. The court also rejected the trial judge's requirement that the evidence of falsity be "immediate" and capable of demonstrating the lie "in a straightforward and simple manner." No such requirement exists in the law.

Issue 3: The Perth couple lie

Whealy J had concluded that the Perth couple account lacked sufficient probative capacity to support an inference of consciousness of guilt in the context of the murder charge, given the complexity of the circumstances in which the fax was sent. McClellan CJ at CL acknowledged that the evidence of falsity here was weaker, and that there were plausible alternative explanations for the statement. Nonetheless, the Court held that it remained open to the jury to find the statement was false for reasons other than a finding that the respondent committed the offence. The weight to be given to it, and whether it supported any inference of guilt, were matters for the jury.

Issue 4: Perpetuation

The Crown sought to rely on the respondent having repeated the Andrew Morris/Andrew Norris account on multiple occasions as separately admissible evidence of consciousness of guilt. The Court accepted that each repetition must be treated as a separate assertion and assessed individually. The court noted that when a repeated lie is considered, the jury must be directed to the possibility that the respondent may have felt locked into her earlier false account, rather than having repeated it out of consciousness of guilt. That direction is required in respect of each separate occasion.

Orders Made

  • Appeal allowed.
  • The ruling made by Whealy J on 2 November 2010 is vacated.

Key Takeaways

  • A trial judge's ruling restricting the use of admissible evidence to credit purposes, rather than ruling evidence inadmissible altogether, is amenable to Crown appeal either as a "decision or ruling on the admissibility of evidence" under s 5F(3A), or as an interlocutory judgment or order under s 5F(2), of the Criminal Appeal Act.
  • The test for admitting a lie as consciousness of guilt is not whether falsity is conclusively or straightforwardly proved, but whether it is open to a jury to find the statement false on the evidence available, including circumstantial evidence.
  • Overlap between the circumstantial case used to prove that an account is false and the broader circumstantial case used to prove the offence does not automatically produce impermissible circular reasoning; the two cases need not be entirely quarantined from one another.
  • Under the principles in Edwards v The Queen, whether a statement is false, whether it is a deliberate lie, and whether it was told out of consciousness of guilt are three distinct questions of fact, each of which the jury must resolve separately, with appropriate directions from the trial judge.
  • Where an accused has repeated an allegedly false account on multiple occasions, each repetition must be separately assessed, and jurors must be directed that a later repetition may have been made simply because the accused felt unable to resile from an earlier lie, rather than from a renewed consciousness of guilt.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act
- Evidence Act

Cases
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- Quinlan v R (2006) 164 A Crim R 106
- R v Bailey (1988) 36 A Crim R 30
- R v Cook [2004] NSWCCA 52
- R v Edelsten (1989) 18 NSWLR 213
- R v Harker [2004] NSWCCA 427
- R v Harron [1996] Crim LR 581
- R v Heyde (1990) 20 NSWLR 234
- R v Jennings [2010] NSWCCA 193
- R v Keli Lane [No 13] [2010] NSWSC 1540, 3 November 2010
- R v Laz (1998) 1 VR 453
- R v Mercer (1993) 67 A Crim R 91
- R v Middleton [2001] Crim LR 251
- R v Powch (1988) 14 NSWLR 136
- R v Ray (2003) 57 NSWLR 616
- R v Russo [2004] VSCA 206
- R v Sirillas [2006] VSCA 234
- R v ST (1997) 92 A Crim R 390
- R v Sutton (1986) 5 NSWLR 697
- R v Zheng (1995) 83 A Crim R 572
- Reg v Lucas (Ruth) [1981] QB 720
- Steffan v R (1993) 30 NSWLR 633