Citation: Lane v R [2013] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 13 December 2013
Judges: Bathurst CJ; Simpson J; Adamson J
Background
The appellant was convicted of murder following a four-month jury trial in the Supreme Court. The Crown alleged she killed her two-day-old daughter, Tegan, on or about 14 September 1996, after discharging herself from Auburn Hospital and arriving at her parents' home in Fairlight several hours later without the child. No body was ever found. The Crown case was entirely circumstantial, with the alleged intent to kill forming the sole basis of the murder charge.
The appellant had concealed multiple pregnancies from family and friends. Tegan's disappearance only came to light in late 1999 when a social worker, investigating the proposed adoption of another child, discovered the existence of Tegan and reported her as a missing person. A lengthy police investigation followed, ultimately leading to charges being laid.
In addition to the murder charge, the appellant faced three perjury charges arising from false affidavits sworn in adoption proceedings. The trial judge directed not-guilty verdicts on those charges but left alternative charges of false swearing, on which the jury returned unanimous guilty verdicts. The murder conviction was returned by majority verdict. The appellant appealed against the murder conviction only.
Legal Issues
- Whether the trial judge erred by failing to leave manslaughter as an alternative count for the jury's consideration
- Whether the trial miscarried due to prejudicial conduct by the Crown prosecutor
- Whether the Crown prosecutor's conduct amounted to a reversal of the onus of proof
- Whether a separate trial should have been sought in respect of the perjury and false swearing charges
- Whether the trial judge should have discharged the jury after the Crown prosecutor made allegedly prejudicial remarks in opening address
- Whether the trial judge erred in granting leave under s 38 of the Evidence Act 1995 to treat a witness as hostile
- Whether the verdict was unreasonable and unsupported by the evidence
- Whether trial counsel's failure to request a direction regarding delay in prosecution caused a miscarriage of justice
Decision
The Court dismissed every ground of appeal. On the question of manslaughter, the Court found no basis for leaving the alternative charge, given that the Crown case was always expressly limited to an intention to kill and the evidence did not raise any realistic alternative basis for a lesser verdict.
On the prosecutorial conduct grounds, the Court found that the Crown prosecutor's remarks did not reverse the onus of proof or cause any miscarriage of justice. The trial judge had given appropriate directions, and any risk of prejudice was adequately addressed. The Court also found no error in the refusal to discharge the jury following the opening address.
Regarding the s 38 Evidence Act issue, the Court concluded that the grant of leave to treat the witness as hostile was properly made and caused no unfairness to the appellant. The Court also found no error in the failure to apply for a separate trial on the false swearing charges, noting that the evidence on those charges was closely connected to the murder charge and would have been admissible in any event.
On the sufficiency of evidence, the Court was satisfied that the verdict was amply open to the jury. The circumstantial case, including the appellant's concealment of the pregnancy, the hours she was unaccounted for with the child, her false accounts to social workers and in affidavits, and the absence of any trace of Tegan, was sufficient to establish guilt beyond reasonable doubt. The failure of trial counsel to seek a delay direction was also considered and found not to have resulted in a substantial miscarriage of justice.
Orders Made
- The appeal against conviction is dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge is not required to leave manslaughter as an alternative where the Crown has consistently and exclusively relied on an intention to kill and the evidence raises no realistic basis for a lesser verdict.
- A circumstantial case can support a murder conviction even where no body is found, provided the inference of guilt is the only rational inference open on the whole of the evidence.
- Prejudicial remarks by a Crown prosecutor in opening address will not automatically warrant a jury discharge; the adequacy of the trial judge's corrective directions is central to that assessment.
- Where evidence underlying collateral charges (here, false swearing) would likely have been admissible in the principal trial in any event, the failure to seek a separate trial does not necessarily constitute a miscarriage of justice.
- Trial counsel's failure to request a direction on delay in prosecution does not ground an appeal unless the appellant can demonstrate that the omission resulted in a substantial miscarriage of justice.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18, 327
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), s 38
- Jury Act 1977 (NSW), s 55F
Cases:
- Barca v The Queen [1975] HCA 42; 133 CLR 82
- Burns v The Queen [2012] HCA 35; 246 CLR 334
- Demirok v The Queen [1977] HCA 21; 137 CLR 20
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- Gammage v The Queen [1969] HCA 68; 122 CLR 444
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- Gillard v The Queen [2003] HCA 64; 219 CLR 1
- Huynh v The Queen [2013] HCA 6; 87 ALJR 434
- Justins v R [2010] NSWCCA 242; 79 NSWLR 544
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- M v The Queen [1994] HCA 63; 181 CLR 487
- Markby v The Queen [1978] HCA 29; 140 CLR 108