Citation: Keli Lane v Regina [2013] NSWSC 146
Court: Supreme Court of New South Wales
Date: 1 March 2013
Judge(s): Hoeben CJ at CL
Background
The applicant was convicted in December 2010 following a lengthy trial before Whealy J and a jury. She was found guilty of murdering her newborn daughter and of three alternate counts of false swearing arising from false statements made in adoption proceedings in the Equity Division of the Supreme Court. In April 2011 she was sentenced to imprisonment with a non-parole period of 13 years and 5 months for the murder, with the other sentences subsumed within that term. Her earliest possible release to parole is 12 May 2024.
In December 2012, the applicant filed a Notice of Appeal and Notice of Application for Leave to Appeal against conviction only, nominating eight grounds of appeal. Written submissions were filed in support of both the appeal and a separate application for bail pending the appeal outcome. The appeal was expected to be listed for hearing in July 2013.
The applicant sought bail on the basis that two of her eight grounds of appeal had high prospects of success. The Crown did not dispute that she had complied with bail conditions throughout the original proceedings, and evidence before the court indicated that substantial sureties were available.
Legal Issues
- Whether the applicant could satisfy the "special or exceptional circumstances" requirement under s 30AA of the Bail Act 1978 (NSW), which applies where a conviction appeal is pending in the Court of Criminal Appeal
- Whether the trial judge erred in failing to leave manslaughter as an alternative verdict to the jury (Ground 1)
- Whether the Crown's closing address gave rise to a miscarriage of justice by impermissibly reversing the onus of proof (Ground 2)
Decision
The s 30AA threshold. Section 30AA of the Bail Act 1978 (NSW) provides that bail shall not be granted after conviction, pending an appeal, unless "special or exceptional circumstances" are established. Hoeben CJ at CL applied the formulation from R v Wilson (1994) 34 NSWLR 1, as confirmed by United Mexican States v Cabal [2001] HCA 61: where the prospects of success on appeal are put forward as a special circumstance, an applicant must show that the appeal is "most likely to succeed." A merely arguable ground, or even one with reasonable prospects, does not suffice.
Ground 1: Failure to leave manslaughter. The applicant argued that the trial judge should have left manslaughter as an alternative verdict because the evidence permitted a conclusion that the infant died from an unlawful and dangerous act, such as accidental suffocation or being dropped. His Honour rejected this argument. The defence had already put the possibility of accidental death to the jury. There was simply no evidence of any specific dangerous or unlawful act capable of supporting a manslaughter verdict. The authorities the applicant relied upon, R v Kanaan and Carney v R, require evidence that makes manslaughter "reasonably open" on the evidence; that threshold was not met here.
Ground 2: Onus of proof in Crown address. The applicant relied on Wood v R [2012] NSWCCA 21 to argue that the Crown's closing address, which posed a series of questions to the jury about the applicant's conduct, impermissibly shifted the onus of proof onto the defence. His Honour noted a significant distinction: unlike in Wood, defence counsel did not object to the address at the time, which would ordinarily be expected if there were a genuine risk of miscarriage. More importantly, the trial judge gave clear and emphatic directions of his own motion, expressly telling the jury that the Crown's questions did not impose any onus on the defence and that the onus of proof remained with the Crown throughout. His Honour considered that a detailed transcript analysis of this ground was a matter for the Court of Criminal Appeal, but on the limited material before him, was not satisfied the ground was most likely to succeed.
Having found that neither ground cleared the "most likely to succeed" threshold, Hoeben CJ at CL held that the applicant had not established special or exceptional circumstances under s 30AA. Bail was refused.
Orders Made
- Bail refused.
Key Takeaways
- Under s 30AA of the Bail Act 1978 (NSW), a convicted person seeking bail pending a conviction appeal must establish "special or exceptional circumstances," and where the appeal's prospects of success are put forward as that circumstance, the appeal must be shown to be "most likely to succeed," not merely arguable or reasonably arguable.
- A failure to leave manslaughter as an alternative verdict is only an error of law where the evidence makes such a verdict reasonably open; the mere theoretical possibility of an unlawful and dangerous act, unsupported by actual evidence at trial, does not reach that threshold.
- Where the Crown's closing address poses rhetorical questions about a defendant's conduct, a trial judge's clear, emphatic and unsolicited direction that those questions impose no onus on the defence is a material distinction from cases where no such corrective direction was given.
- Refusing bail at this stage, the Supreme Court noted that a detailed evaluation of whether the Crown's address occasioned a miscarriage of justice was properly a matter for the Court of Criminal Appeal, not a bail application.
- The High Court's formulation in United Mexican States v Cabal (2001) 209 CLR 165, requiring "a very strong case" for bail pending appeal, is consistent with the "most likely to succeed" standard confirmed in R v Wilson (1994) 34 NSWLR 1 and applied here.
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW), ss 30AA, 32
Cases
- R v Wilson (1994) 34 NSWLR 1
- United Mexican States v Cabal & Ors [2001] HCA 61; 209 CLR 165
- R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527
- R v Antoun [2005] NSWCCA 270
- Carney v R; Cambey v R [2011] NSWCCA 223
- Wood v R [2012] NSWCCA 21
- R v Rugari [2001] NSWCCA 64; 122 A Crim R 1