Lane v The Queen

[2014] HCATrans 171

[2014] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S35 of 2014

B e t w e e n -

KELI LANE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 AUGUST 2014, AT 11.55 AM

Copyright in the High Court of Australia

MR W.C. TERRACINI, SC:   May it please your Honours, I appear for the applicant with MR J.J. TREVALLION and MS E.R. NICHOLSON.  (instructed by Archbold Legal)

MS J. GIRDHAM:   May it please the Court, I appear with MR H. BAKER for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

BELL J:   Yes, Mr Terracini.

MR TERRACINI:   Your Honours, this is an appeal from the New South Wales Court of Criminal Appeal of 13 December 2013 involving a murder conviction of 13/12/2010.  Our arguments are twofold as are encapsulated in the application book:  firstly, that there was a viable case of manslaughter to go to the jury and we have adumbrated them at 335 in the application book and secondly ‑ ‑ ‑

BELL J:   Perhaps just – I am sorry, Mr Terracini, but just one formal matter – I note you require an extension of time and you rely on Mr Archbold’s affidavit.  I will just inquire, Ms Girdham?

MS GIRDHAM:   No objection.

BELL J:   Yes.

MR TERRACINI:   Mr Archbold is here if they want to cross‑examine him?

BELL J:   No.  The requirements of the rule will be dispensed with, thank you, Mr Terracini.

MR TERRACINI:   There are two grounds:  the viable case for manslaughter and the positing of a series of questions by the Crown Prosecutor in his address.  The points that we have made as to the viable case in manslaughter are on 335 of the application book and the nub, if I could describe it in that way, of the opposition to that proposition is on page 266 of the application book where the Court of Criminal Appeal deals with how there is not a viable case for manslaughter. 

Now, as your Honours probably know, but certainly I can summarise it very quickly, the appellant’s case was it was murder or nothing.  Manslaughter was not part of her case.  There was no application made by defence counsel to the trial judge.

BELL J:   Take that as a given and you rely on Gilbert and Gillard. 

MR TERRACINI:   Precisely, your Honour.

BELL J:   But it remains to identify the basis upon which the jury, acting in accordance with the direction you contend the trial judge should have given, might properly have returned a verdict of manslaughter.  That would have required, assuming the jury were not satisfied of the intent that would make the act murder, an assessment respecting unlawful and dangerous act manslaughter, that there was an act causing death, it was the applicant’s and it was unlawful, so there would need to be the identification of that act.  Then there would need to be the satisfaction of the objective requirement of “dangerousness”.  That was the point the Court of Criminal Appeal made.

MR TERRACINI:   That is at 266 of the application book.

BELL J:   Yes, well, how do you deal with it?

MR TERRACINI:   We deal with it on the basis that the nature and act causing the death is no stronger for murder than it is for manslaughter.  It is not speculation to say that if the jury had been properly directed they may well have found manslaughter vis-à-vis murder because the mechanism, the cause of death was entirely speculative for murder.

BELL J:   Indeed, but there was on the case in murder this, a circumstantial case which depended upon acceptance that the Crown could establish beyond reasonable doubt an intention to kill the child. 

MR TERRACINI:   That was the Crown case.  I do not deny that.

BELL J:   That was the Crown case.  Now, mechanism of death in terms of the precise mechanism does not matter if one is satisfied of the fact of death accompanied by that intention and the act or the omission being that of the applicant.

MR TERRACINI:   Respectfully, that is true, I agree, but the Court of Criminal Appeal raises some other issues in the application book at 266 at 106:

To come to a conclusion that the appellant was guilty of either category of manslaughter, in the absence of evidence as to the nature of the act or omission causing death, would be to engage in pure speculation.

Now, the Crown case asked the jury to form the view that whatever was done was done deliberately without permitting the jury to at least evaluate a lesser version of that intent.

BELL J:   If the Crown could not prove an intention to kill accompanying the act or omission that caused death, then on what basis lawfully was it open to the jury to do other than acquit?

MR TERRACINI:   In relation to the submissions made by the Crown, the jury should have been permitted to at least have available to them an alternative falling short of murder because at various times - and I can take your Honours to 104 - the Court of Criminal Appeal said that it was necessary that the act causing death be identified with precision.  That is putting an onus on the accused to raise those matters associated with manslaughter. 

BELL J:   The court was pointing out that for the purposes of unlawful and dangerous act manslaughter it would be necessary to identify the act.  That is quite a separate consideration to the capacity on a circumstantial case to prove murder beyond reasonable doubt notwithstanding the absence of the body and therefore no knowledge as to the precise mechanism of death.

MR TERRACINI:   But the issues that were actually raised by counsel for the accused, or then counsel for the accused, were - and that is encapsulated in paragraph 30 of our written submissions, taken from the transcript:

Point number one –

This was not - by the way, I have interrupted myself, but:

Point number one is that we do not even know that the victim is dead.

Put that to one side.

Point number two is if she is dead, we don’t know how she died . . . 

we don’t know who caused the death if anyone did because we don’t know.  It could have been an accident and people do terrible things to cover things up.

Then he goes on to address the jury in these terms:

If Tegan Lane is dead we don’t know that it was the deliberate act of Keli Lane that caused her death.

BELL J:   That was the submission that one would expect given that an element that the Crown had to prove was deliberate act causing death.  The fact that counsel put in contest each of the elements does not mean that there was a viable case for manslaughter on the evidence.

MR TERRACINI:   Your Honour, it is more than that.  He is putting accidental death as well.  He is not just putting into issue that it was deliberate.  He says: 

If Tegan Lane is dead we don’t know that it was the deliberate act of Keli Lane that caused her death.

Prior to that he talks about accidental death.

BELL J:   If it was accidental death, she was entitled to an acquittal.

MR TERRACINI:   Not necessarily, your Honour, because the jury were not armed with what they could do with that.  In terms of unlawful and dangerous act and criminal negligence there still obviously has to be a form of intent.  Now, the jury should have been, at least, told as a result of what was put by counsel for the accused that there was an alternative verdict even though it was not raised by the accused.  There was no objection taken by the Crown to that submission made to the ‑ ‑ ‑

KEANE J:   And no evidentiary basis for it.

MR TERRACINI:   There is no evidentiary basis for how the deceased was killed.  It had to be a circumstantial case.  There is, with respect, no difference in a circumstantial case for manslaughter as of murder.

KEANE J:   In this sort of case there is no difference between this case and Weissensteiner where the question was guilty of murder or innocent.  That was the way this case was put.

MR TERRACINI:   There are many cases including flowing from Kanaan and others where it is murder or nothing, but here this actual passage of the submissions made by counsel plainly raised something else other than murder, with respect, your Honour.

BELL J:   Counsel putting a submission for which there is no basis in the evidence is not unheard of, Mr Terracini.

MR TERRACINI:   Certainly not, your Honour, but this one was not objected to and it was not the subject of criticism by the trial judge.  The mere fact that your instructions are that it is murder or nothing makes it very difficult for counsel at times to raise the issue.

BELL J:   The point in Gilbert and in Gillard is that for sound forensic reasons it will not uncommonly be the case that counsel will choose to run a defence on the basis of murder or nothing.

MR TERRACINI:   Yes, I agree.

BELL J:   But that in any case where there is an evidentiary basis for a conclusion of manslaughter it is the duty of the trial judge to put – you remain to identify the evidentiary basis here.

MR TERRACINI:   It is based upon the submissions made by counsel ‑ ‑ ‑

BELL J:   That it could have been an accident.  If it was an accident, Mr Terracini, then your client was entitled to an acquittal.

MR TERRACINI:   That is so, on its own, but in those submissions made he talks about whether there was an intentional act and that raises the difference between manslaughter or murder, whether one intended to do it.  The other aspects of the criticisms made by the Court of Criminal Appeal as to the consciousness of guilt and the lies, they do not necessarily only apply to consciousness of guilt in relation to murder.  One can lie about any offence including manslaughter and then decide to live that lie for a considerable length of time.  It does not necessarily just apply.

KEANE J:   Except that in this case the account that was given was plainly disbelieved by the jury.  That account was inconsistent with manslaughter.

MR TERRACINI:   Not entirely, your Honour.  I mean, obviously the jury rejected the accounts but to concoct a version that the baby has been given to somebody or otherwise disposed of does not necessarily mean that that is only consistent with a deliberate act of killing the deceased.  It can be – it could be manslaughter and the cover‑up associated with that and just the concoction of lies over many years, as your Honours know, there were many, many versions given.  They are not necessarily just consistent with a consciousness of guilt in murder.

KEANE J:   But they are inconsistent with a scenario that would lead to a conviction of manslaughter as opposed to murder.

MR TERRACINI:   Your Honour, one can lie and say, look I dropped the baby, ex hypothesi, then as a result it died and I have just concocted this farrago of lies over many years adding bits and pieces, taking away from various versions.

BELL J:   The strength of the prosecution case here was the interval of time between discharge from Auburn Hospital between 11.00 and 12.00 am and arrival at, I think, it was the Fairlight home at about 3.00 pm combined with the absence of any arrangement for the baby to be placed in care.  That was the strength, as it were, of the case that the prosecution made.  In those circumstances, the lies provided additional support, as it were, for the

proposition that was being advanced but the notion that in that short interval of time something occurred, not accompanied by the requisite intent, required the identification one comes back to it, Mr Terracini, of an act that was contrary to the law and objectively dangerous or some notion of negligence, some gross falling short.  I mean, in the space of the three maybe four hours, what was the case in criminal negligence?

MR TERRACINI:   Your Honour, that cannot be identified but that is not the end of the matter because the Crown case was that during that hiatus of time she murdered the deceased but they cannot point to any act done.  The jury was entitled to at least have an alternative scenario that if you are not satisfied that she intended to kill the deceased or inflict grievous bodily harm, you may be satisfied that some other criminal act took place falling short of deliberate intent.  That is the point.  With respect to the second ground, it is common ground as a result of Wood that these rhetorical questions are not permitted and I am not going to ‑ ‑ ‑

BELL J:   This was an evaluative exercise as far as the Court of Criminal Appeal was concerned.  What point of principle arises from it?

MR TERRACINI:   In relation to the conduct of the Crown Prosecutor and the questioning technique and it goes to this.  If an appellate court comes to the opinion that this should not have been done, with great respect, it is not inconsequential.  The judge did not tell the jury that it should not have been done or that it was inappropriate.  He did give clear directions saying that they should not reverse the onus of proof.  I am not going to address on that.  However, if it is inappropriate and, I think, the phrase is “regrettable” then it should not be done.  With respect to this appellant, it is submitted that she did not get a fair trial as a result of the fact of those questions in the rhetorical manner going before the jury.

BELL J:   The Court of Criminal Appeal weighed up the considerations of the impact of those statements against the trial judge’s very clear directions, the clarity of which you do not put in issue.

MR TERRACINI:   No, I do not put in issue what the trial judge did other than the fact that he should have given his imprimatur to the fact that it should not have been done and they should disregard what had been put to them by the Crown.  The departure from the appropriate standards was not as bad, if I could use that generic term, as in Wood and Rugari, I concede that, but nevertheless, it is the same sort of thing and it does create an impression that the onus of proof is being reversed and we would say that is a significant issue in the administration of justice.  They are my submissions, in any event, your Honours.

BELL J:   In this application we are of the opinion that the decision of the Court of Criminal Appeal of New South Wales is not attended with sufficient doubt to warrant the grant of special leave.  Special leave to appeal is refused.

AT 12.12 PM THE MATTER WAS CONCLUDED