Citation: R v Keli Lane [No 24] [2011] NSWSC 72
Court: Supreme Court of New South Wales
Date: 24 February 2011
Judge(s): Whealy J
Background
This decision provides the published reasons for a ruling Whealy J communicated by email to the parties on 1 December 2010, the day immediately after counsel completed their closing addresses in a high-profile murder trial. The accused was charged with murdering her infant daughter, Tegan, and the Crown relied on a circumstantial case.
A central element of the Crown's case was three specific lies the accused allegedly told to investigators and a welfare worker about what had happened to Tegan. The Crown contended those lies should go to the jury as evidence of consciousness of guilt, that is, as evidence that the accused knew she had killed her daughter and was actively concealing that fact.
The trial judge had initially ruled against leaving the lies on a consciousness of guilt basis, intending to restrict their use to credibility under the Evidence Act. The Court of Criminal Appeal allowed an interlocutory Crown appeal and vacated that ruling, directing that the lies could be left to the jury. The question that then arose, urgently, was precisely what directions the jury should receive about how to use those lies.
Legal Issues
- Whether the Crown was required to prove beyond reasonable doubt that the reason for each lie was the accused's consciousness of guilt of murder, before the jury could use each lie for that purpose.
- What alternative innocent reasons the jury should be directed to consider for each lie being told.
- Whether permitting the jury to use the lies without a beyond-reasonable-doubt requirement on the consciousness of guilt reasoning risked circular reasoning or effectively invited conviction on the lies alone.
Decision
Issue 1: Standard of proof for the "reason" for each lie
The Crown argued, relying on Edwards v R (1993) 178 CLR 193, that it was not required to prove beyond reasonable doubt that each lie was told from a consciousness of guilt. Under Edwards, a lie may be considered together with the body of evidence as a whole, and the jury does not need to conclude beyond reasonable doubt that any particular lie reflects consciousness of guilt before treating it as relevant circumstantial evidence. The Crown submitted the jury simply had to weigh the lies as part of the overall circumstantial case, which as a whole must establish guilt to the required standard.
The defence argued the opposite: that the jury should be instructed it could not use each lie for the consciousness of guilt purpose unless satisfied beyond reasonable doubt that the lie was told for that reason. Whealy J ultimately accepted the Crown's position, finding it was compelled by the Edwards principles and consistent with the Court of Criminal Appeal's earlier ruling in the interlocutory appeal.
Issue 2: Whealy J's misgivings
Despite accepting the Crown's argument, Whealy J recorded serious reservations. The Crown had not merely presented the lies as neutral circumstantial facts; it had forcefully submitted that each lie was told specifically to conceal murder. Whealy J observed that the risk arose that a jury, hearing such a submission, might convict on the basis of the lies alone, precisely because the Crown's framing invited the conclusion that the lies proved guilt. Whealy J also identified a potential circularity in using all the evidence to determine whether a lie reflected consciousness of guilt, and then using that same lie as circumstantial proof of guilt.
Whealy J noted that requiring the Crown to prove the consciousness of guilt reason beyond reasonable doubt would have caused the Crown little practical harm if its case were as strong as it contended. The Crown nevertheless refused to accept a direction in that form, and the Court ultimately deferred to the Edwards framework and the Court of Criminal Appeal's interlocutory decision.
Issue 3: Alternative reasons for the lies
The parties reached substantial agreement on the directions about what alternative innocent reasons the jury should consider for each lie. Those agreed matters were reflected in the summing-up and did not require further resolution in this ruling.
Orders Made
- Lies may not be left as evidence of guilt.
- The use of the evidence is to be limited under s 136 of the Evidence Act 1995.
Key Takeaways
- Under Edwards v R (1993) 178 CLR 193, an alleged consciousness of guilt lie does not need to be proved to any particular standard before the jury may treat it as part of the body of circumstantial evidence; the overall evidence must establish guilt beyond reasonable doubt.
- An exception applies where a lie is the only evidence against an accused, or an indispensable link in a chain of evidence necessary to prove guilt: in that circumstance, the lie and its character as an admission must be proved beyond reasonable doubt.
- Whealy J accepted the Edwards framework with express reluctance, recording concern that the Crown's forceful framing of the lies risked inviting the jury to convict on the basis of the lies alone, and that an element of circular reasoning was present.
- The Court of Criminal Appeal's interlocutory decision permitting the lies to go to the jury on a consciousness of guilt basis was a binding constraint on the trial judge's approach to the directions.
- Where the Crown presents lies not merely as neutral circumstantial facts but as direct evidence of a particular guilty state of mind, the trial judge retains a discretion to impose limitations under s 136 of the Evidence Act 1995.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Edwards v R (1993) 178 CLR 193 at 210