R v Lane
[2011] NSWCCA 157
•14 July 2011
Court of Criminal Appeal
New South Wales
Case Title: R v Lane Medium Neutral Citation: [2011] NSWCCA 157 Hearing Date(s): 15 November 2010 Decision Date: 14 July 2011 Jurisdiction: Before: McClellan CJ at CL at [1]
Simpson J at [31]
Howie AJ at [85]Decision: 1. Appeal allowed.
2. The ruling made by Whealy J on 2 November 2010 is vacated.Catchwords: CRIMINAL LAW - section 5F Criminal Appeal Act - appeal against interlocutory judgment made by trial judge - evidence of lies as consciousness of guilt - appeal allowed - evidence admissible as evidence of guilt.
Legislation Cited: Criminal Appeal Act
Evidence ActCases Cited: 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 633Texts Cited: Wood Criminal Law Update Court of Criminal Appeal (1999) 4 Judicial Review 217
Category: Interlocutory applications Parties: The Crown (Appellant)
Keli Lane (Respondent)Representation - Counsel: M Tedeschi QC/D Arnott SC/H Baker (Crown/Appellant)
S J Odgers SC/K Edwards (Respondent)- Solicitors: Director of Public Prosecutions (Crown)
Archbold Legal (Respondent)File number(s): 2009/256171 Decision Under Appeal - Court / Tribunal: - Before: Whealy J - Date of Decision: 03 November 2010 - Citation: - Court File Number(s) 2009/256171 Publication Restriction:
Judgment
McCLELLAN CJ at CL : The respondent was tried for the murder of her baby named Tegan. On 10 November 2010 the trial judge Whealy J determined that the Crown could not rely upon statements made by the respondent, in which she explained that she had given the child to others as evidence of her guilt. It is the Crown case that the respondent lied when she said she had given the child to other people out of a consciousness of her guilt because if she had told the truth she would have admitted the alleged offence.
The Director of Public Prosecutions appealed the ruling made by Whealy J pursuant to s 5F(3)(a) of the Criminal Appeal Act . Section 5F(2) provides that the Crown may appeal against any interlocutory judgment or order made by the trial judge. The section was amended to s 5F(3A) which expands the Crown's right of appeal and provides that the Director may appeal to this Court "against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case."
As I make plain below the ruling made by Whealy J was as to the purpose for which the disputed evidence was relevant. In R v Jennings [2010] NSWCCA 193 this Court determined that a decision as to the permitted use of admissible evidence was a decision contemplated by s 5F(3A). Latham J referred to the decision of this Court in R v Harker (2004) NSWCCA 427 where Howie J (Santow JA and Bell J agreeing) said:
"In any event it seems that the legislature had in mind that the Crown could appeal against a determination in respect of the admissibility of evidence that was not a ruling on admissibility. It is unnecessary for present purposes to determine the scope of the matters that might fall within the scope of s 5F(3A) but it seems clear to me that the legislature wished to avoid the section being restricted to rulings on the admissibility of evidence strictly defined. In my view a determination under s 100(1) not to dispense with the notice provisions in relation to tendency evidence is at least a 'decision ... on the admissibility of evidence' and thus within the scope of s 5F(3A)."
There was no issue that the ruling which his Honour made, that the evidence was not evidence of the guilt of the respondent, substantially weakened the prosecution case.
In any event if as the respondent argued the Crown was not entitled to bring this appeal relying on s 5F(3A) Whealy J's decision was a judgment or order amendable to appeal under subs(2).
The appeal was heard by this Court on 15 November 2010. On the following day the Court announced its decision and determined that the appeal should be upheld. The Court ruled that the relevant evidence could be relied upon by the Crown as evidence of guilt of the respondent. The Court indicated that it would publish its reasons at a later date. These are my reasons for joining in that decision. These reasons were prepared before the trial had concluded.
The respondent was charged with one count of murder and three counts of perjury. The perjury charges relate to allegedly false statements which the respondent made in affidavits filed in connection with two sets of adoption proceedings in relation to two of her other children. The first two perjury counts relate to statements made with respect to the adoption of the first child. The third perjury count relates to statements made in an affidavit dealing with the adoption of her third child.
The Crown case is that the respondent deliberately kept her pregnancy with Tegan secret. The evidence indicates that her pregnancy was unknown to any of her family and friends or her boyfriend. Shortly prior to the birth the respondent attended at Ryde Hospital where she allegedly told lies to the staff about her background and family situation. The Crown alleges that these lies were told to prevent her family and friends learning of her true situation. The alleged lies include statements about her address, the existence of a midwife and other background matters.
Tegan was born in Auburn Hospital. After the birth the respondent and the child were transferred to the maternity ward. This occurred at about 10.30 pm on 12 September 1996. The respondent remained in the hospital until some time on 14 September 1996 when she left presumably with the child. Both had been checked by the medical staff and were deemed free to go. The Crown alleges that lies were told to the nursing staff and a social worker before she left the hospital. It is alleged that these lies were again told to avoid others knowing of her true circumstances.
This appeal is not concerned with any of the alleged lies to which I have referred. The alleged lies which are the subject of the present proceedings relate specifically to what the respondent said she did with the child after leaving the hospital. They were described by Whealy J in the following terms:
"a. The Perth couple lie
From mid 1999, the accused had been dealing with a helpful and sympathetic employee of Anglicare - Virginia Fung - in connection with the adoption of her third child, Aaron. An unusual set of circumstances had led a man John Borovnik, who worked for DoCS, to learn, unexpectedly and accidentally, that the accused may have had a second child who had been born at Auburn Hospital in 1996. When informed by Mr Borovnik that he was going to notify the police about Tegan's birth, the accused sent a fax to Virginia Fung on 25 October 1999. This fax stated that the accused had handed Tegan over 'to a couple from Perth'. The fax suggested that this couple had 'befriended us' shortly before the birth. She asked Virginia Fung to inform Mr Borovnik of this situation. The Crown has suggested that this was undoubtedly a lie told by the accused. In this regard, it relies on the fact that, during the accused's ERISP interviews, she prevaricated in relation to that explanation. The Crown asserts that this lie might properly be characterised as one showing a consciousness of guilt of the murder of Tegan. Mr Chapple SC, on behalf of the accused, disputes the lie may be used in this way and argues that, if it be a lie, it simply should be restricted to a credibility lie and its use limited in that way.
b. The Andrew Morris lie
The accused told Detective Kehoe, in her first ERISP in 2001, that Tegan had been handed over to Andrew Morris, the natural father. The Crown wishes to argue that this was a lie. If it can demonstrate that it was a lie, it seeks permission to raise before the jury the submission that this lie constitutes an awareness or consciousness of guilt. Mr Chapple SC submits that the Court should not permit that this be done.
c. The Andrew Norris lie
In later ERISPs involving Detective Richard Gaut in 2002, the accused maintained that she handed over the child to the natural father whose name was Andrew Norris. The parties take similarly contesting positions in relation to this alleged lie.
The Crown has further argued, as I have said, that the maintenance of these two lies (regarding Andrew Morris/Norris) is consistent only with the desire to hide the real truth, which was that she had murdered Tegan. To this extent, the 'maintenance' of the alleged lies is relied on as evidence of conduct in consciousness of guilt or, perhaps more accurately, a lack of conduct in that no further or different explanation was proffered. In that latter regard, the Crown, as I mentioned, also relied upon the 'perpetuation' of the Morris/Norris lies as probative to disprove that the accused informally adopted Tegan out to some other unknown person or persons. I shall leave the resolution of the 'conduct of perpetuation' issue to a later stage in this decision.'"
Whealy J gave a comprehensive and carefully reasoned judgment. His Honour discussed the law relating to lies as evidence of guilt. He referred to and extracted passages from the judgment of Simpson J in R v Cook [2004] NSWCCA 52. I need not repeat them in these reasons. See also Quinlan v R (2006) 164 A Crim R 106 at [15].
Whealy J also discussed what he described as "an important qualification" to the approach described by Simpson J. His Honour said:
"Where, for example, there is no immediate piece of independent evidence to demonstrate that a particular statement may be a lie, and it is necessary to assess the credibility of the accused and the impugned statement in the light of the entire circumstantial case presented by the Crown to determine whether or not he or she had told the truth, the position is by no means clear cut. The situation is even more critical where the suggested lie is, in truth, the central platform of the defence case, or, as here, it is the defence case itself. In that circumstance, it is important that lies in consciousness of guilt not be left before the jury where the jury would be obliged to engage in circuitous or 'bootstrap' reasoning regarding those lies."
His Honour referred to a number of decisions to similar effect: R v Zheng (1995) 83 A Crim R 572; R v ST (1997) 92 A Crim R 390 at 394; R v Mercer (1993) 67 A Crim R 91 at 98; R v Middleton [2001] Crim LR 251; R v Harron [1996] Crim LR 581 at 583; R v Laz (1998) 1 VR 453; R v Russo [2004] VSCA 206; R v Sirillas [2006] VSCA 234.
In Zheng Hunt CJ at CL, with whom Smart and Studdert JJ agreed, stated that if it was only possible to conclude that an accused had lied by finding that he or she committed the offence with which they have been charged the alleged lie could not be used as evidence of guilt. Of course a finding of guilt of the offence may have the consequence that an accused told a lie but because the lie could only be established by a finding of guilt it was not itself evidence of that guilt. This has been described as "circular reasoning."
Whealy J concluded that the reasoning of Hunt CJ at CL in Zheng was applicable to the present case leading to the conclusion that the alleged lies could not be used as evidence of guilt. With respect to the lies described as the Andrew Morris/Norris lie Whealy J concluded that:
"A jury could only determine that the Andrew Morris/Norris story was a lie if they were to accept the entirety of the Crown's circumstantial case."
Whealy J's reasons include a helpful and comprehensive summary of the evidence which the Crown asserted independently of a finding of guilt proved that the Andrew Morris/Norris account was a lie. It includes evidence that no-one of that name had ever lived at the relevant address or ever visited those premises. The Crown alleged that the respondent made a number of changes or additions to her story including the number of times she had been visited by Andrew and his mother at the hospital and other friends associated with her contact with this person. There is evidence that the respondent displayed a lack of interest in genuinely looking for the place where she claimed she had had a relationship with Andrew Morris/Norris. There was other evidence from intercepted telephone calls of her disinterest in "hunting down" Andrew Norris capable of supporting a conclusion that the respondent had lied.
With respect to this evidence his Honour concluded that, notwithstanding the Crown's assertion that from this evidence the alleged lies could be established that because they did not fit the description of "immediate pieces of independent evidence capable of demonstrating in a straight forward and simple manner that the defence case is a lie", the lies could not be relied upon as evidence of her guilt.
Whealy J also referred to other evidence that the Crown submitted could satisfy the jury of the alleged lies. However, his Honour said that their forensic strengths were variable and concluded that the Crown was seeking to mount a "bootstrap argument upon bootstrap argument." His Honour concluded that although there may be, as the Crown argued, a considerable body of evidence that might make the respondent's explanation otherwise unbelievable this was all part of the general circumstantial case made against her by the Crown.
His Honour ultimately stated:
"The fact is there is no independent evidence to demonstrate that the accused was telling a lie when she said that she gave the baby to the natural father. One would have to conclude, from the entirety of the circumstantial case generally, that this was a lie. Therein, it seems to me, lies the circularity."
Notwithstanding his Honour's careful analysis of the situation I have respectfully come to a different conclusion. His Honour's discussion of the evidence and the explanation of that material given to this Court makes plain that there is a body of evidence from which the jury could conclude that the respondent lied when she said she had given the child to Andrew Morris/Norris. Although it is true that the Crown also relied on that evidence as part of its circumstantial case that does not have the consequence that a conclusion that the respondent lied is dependent on a finding that she murdered Tegan.
Of course there could be an innocent explanation for her statements, even if the jury finds that she lied. The jury will be reminded of the caution with which they must approach lies. However, his Honour's finding that if the jury is satisfied that the appellant told lies in relation to Andrew Morris/Norris the lie could not be used as evidence of guilt was not open.
Whealy J considered there was a further reason why the Andrew Morris/Norris lies could not be left as evidence of the respondent's guilt. His Honour said:
"This leads me to a further reason why I consider that these two lies, in particular, should not be left as lies evidencing consciousness of guilt. The jury will be directed that, if they disbelieve the accused's explanation, they are not to thereby find her guilty of murder. They will be directed, in that situation, simply to put the evidence of that explanation to one side altogether. They will next be required to examine the evidence remaining in the case, including such of the evidence that emerges from her interview with the police as they do accept. They will be then required, having regard to all that evidence, to determine whether the Crown has or has not proved each of the essential ingredients of the murder charge beyond reasonable doubt. If there is a reasonable possibility that any of those ingredients is absent, the Crown will have failed to prove its case and the jury will be bound to acquit.
It would be inconsistent with such a direction, and indeed contrary to it, to then say to a jury, 'If you do not believe her explanation, you may regard that as a lie to be used as evidence of her consciousness of guilt.' Indeed, the Crown's opening reveals that it wishes to go so far as to put to the jury that the lies were told because 'the truth was too terrible to contemplate, namely that she had murdered Tegan.' Such a submission, in this trial, would fly directly in the fact of the Crown's obligation to prove the charge beyond reasonable doubt, and the direction to be given to reinforce that obligation."
It maybe that there has been an error in the transcription of his Honour's reasons. However, it could not be the case that if the jury disbelieve the respondents' explanation they are simply to put the evidence of that explanation to one side altogether. Instead if the respondent's explanation is disbelieved it would be open to the jury to consider it, with the other evidence when considering her guilt. With respect his Honour's analysis inappropriately separates the alleged lie from the other evidence which may indicate guilt. The critical issue in the analysis is that there is evidence capable of supporting a finding that she lied and such a finding is not dependent upon a finding that the respondent is guilty.
The DPP conceded before this Court that unless the jury were satisfied beyond reasonable doubt that the respondent lied when she gave the explanations of what she had done with the child the respondent must be acquitted. This concession was rightly made. Unless the jury is satisfied that she has lied there must logically be a reasonable possibility that the child was not killed by the respondent but given to another person. In this event the Crown would not have negatived a reasonable possibility that the respondent is innocent. But this conclusion does not involve any inconsistency in the Crown case. How the Crown case is ultimately advanced to the jury is a matter for the prosecutor. It may be that he will seek to make much of the alleged lies. But I do not presently understand the Crown case to be confined to the lies. It would seem that there is a body of other evidence of circumstances which the Crown will submit supports a conviction.
His Honour records the fact that the Crown maintained that the lies would be used as an indispensable link in the chain of reasoning underpinning the Crown case. In a sense to which I have referred this is correct. However, it does not follow that a finding that the respondent lied would lead to a finding that she was guilty of murder. The lie may have been deliberately told but for another reason. For example, it may be that the respondent was seeking to protect the person to whom in truth she gave the child.
Whealy J discusses the caution which this Court and some academic writers have expressed to be appropriate when the prosecution seeks to use a lie as evidence of guilt ( R v Sutton (1986) 5 NSWLR 697 at 701; R v Heyde (1990) 20 NSWLR 234; R v Ray (2003) 57 NSWLR 616; Wood "Criminal Law Update Court of Criminal Appeal (1999) 4 Judicial Review 217). Although caution is necessary it cannot be allowed to inhibit the Crown from having the benefit of the evidence when that is clearly appropriate. The present is such a case.
The third lie was referred to as the "Perth couple lie". This lie was allegedly told when the respondent was responding to questions with respect to the adoption of her children. Whealy J's discussion of the alleged lie is as follows:
"I turn now to consider the 'Perth couple' lie. I have earlier described briefly the nature of the situation which led to the accused sending a fax on 25 October 1999 to Virginia Fung. The precise sentences relied on by the Crown appear in the early part of the fax as follows:
'There were three children, obviously I can't lie anymore as the paperwork is there. The middle child lives with a family in Perth although I have not had contact with them in a long time. They befriended me just before I had her and supported us. I am not able to give you many details as I am not sure of them myself ... I am aware that this does not have anything to do with Tahlia's and Aaron's placement and really not your issue but I feel you should know and perhaps pass these details onto John.'
The context of the fax is extremely complicated. It is sufficient for present purposes to say that it essentially arose, as I said earlier, in connection with the adoption of the accused third child, Aaron. In the early phases of the adoption proceedings, the accused has said the father of this child was Duncan Gillies. Later, it became patently obvious to Virginia Fung, particularly after speaking to Duncan Gillies, that he was not the father. The accused then said the father was a man named Aaron Williams with whom she had had a brief relationship in London, and had fallen pregnant to him. The Crown case is that this was in fact a lie, principally because the accused had not been in London at the relevant time. Moreover, DNA testing, many years later, demonstrated that the true father of Aaron was a man named Aaron Howison. He was a friend of the accused's younger brother, with whom she had had a brief relationship in the relevant year. He had no idea that the accused had fallen pregnant and had given birth to his child. Against the background of these extremely complex and multi-layered situations, it is likely that the accused, at the time of writing the fax, was principally concerned with two things. First, to ensure that the adoption of Aaron proceeded as efficaciously as possible, notwithstanding the fact that she had been 'found out' in not telling the truth about the paternity of the child. Secondly, it is as clear as it could be that the accused was endeavouring, in a clumsy and ultimately ineffective way, to prevent her family and friends from finding out about Aaron's birth.
A third complication, however, had arisen. This was the fact, referred to earlier, that John Borovnik had learned unexpectedly that the accused had delivered a second child, who had been born at Auburn Hospital in 1996. It was in the context of that additional fact that the sentences I have quoted above appeared in the fax, Exhibit YY. The fax is a very lengthy document. There are many matters stated in it that are probably untrue. It would be open to the jury to conclude, however, that the overall thrust of the letter was an endeavour by the accused to regain the confidence of Virginia Fung so that Aaron's adoption could proceed and that, as a consequence, her family and friends would not find out about her recent pregnancy and Aaron's birth. In one part of the fax, analysing her own actions over the last six years, the accused said:
'Why did I? I didn't have any support any time I was in this situation. I felt very isolated and alone. People dropped off me when they realised I was going to relinquish the babies. How could I do it? Society says that this is wrong, society says that people who do this must be mad, slutty or cruel. I jut don't agree. Being able to have a beautiful, healthy child is a great gift. Being able to give someone else that opportunity when they can't is a gift as well. I don't think my behaviour itself is actually that bad, it's just the secrecy and dishonesty that comes with it ... I live with these decisions and thoughts every day. I have to live with this for the rest of my life. I constantly feel sick, I sleep two to three hours a night, I'm always on edge. I wish the phone would never ring again. I'm sick of bad news and I'm tired of hiding things from people. I worry constantly that people who don't know me or the situation will find out and I will lose more people.'
The Crown, in its submissions, described this fax as 'very manipulative.' It may well be, although it would be open to the jury to conclude that there are a number of statements made by the accused that are likely to be genuine. However, the principal observation for present purposes is that, in my opinion, its probative value, in the present context, is scarcely more than minimal. It seems to me that the real thrust of the 'Perth couple lie' is that it was an attempt by the accused to fob off any inquiry relating to Tegan, because it was a further complication likely to hold up the adoption of Aaron. It is simply impossible to say that the motive for the lie, if it was a lie, was a realisation of guilt for the offence of murder and a fear that the truth would implicate the accused as the perpetrator of the murder of Tegan. The context of the statements was entirely removed from any consideration of the death of her second child. It is only by assuming that the death of the child by deliberate and violent means has been proved that one can begin to draw the inference suggested by the Crown. Put simply, the suggested lie does not have the capacity to do the work the Crown seeks to ascribe to it. In my opinion, to use the lie as consciousness of guilt of murder would fall foul of the conditions set out in Cook's case. In particular, the lie does not appear to me to be capable, in its context, as being seen as indicating an awareness of guilt of the offence of murder. Nor could it be seen as a lie that was told because the accused realised she was guilty of murdering her daughter. In my view, as I have said, it could not be seen as an implied admission in connection with the central charge in this trial.
Another problem facing the Crown argument is that it is not altogether easy, in the light of the Crown evidence, to demonstrate that the Perth couple story is a lie. The Crown argued, however, that it may be seen to be a lie because the accused herself effectively abandoned it in favour of the Morris/Norris explanation given during the later records of interview. The problem with this argument is that the Crown asserts, with considerable vigour, that the Andrew Morris/Norris story itself is a lie. If the Andrew Morris/Norris story is a lie, as the Crown asserts, does that not leave open the possibility that the Perth couple story may have been the true explanation? It is fair to observe that the Crown has not independently endeavoured to prove that the Perth couple explanation was deliberately false. It is true, of course, that the accused prevaricated in relation to the version given to Virginia Fung when she was later interviewed by the police. But that, of itself, would not prove that the Perth couple story was a lie."
It may be as his Honour outlines that there are explanations for this statement which would not lead the jury, if they found the statement to be a lie, to conclude that it provided any significant evidence of her guilt. It may also be, as his Honour indicates, that it may be difficult for the Crown to satisfy the jury that it was a lie.
However, as I understand the evidence it would be open to the jury to conclude that it was a lie otherwise than because they concluded that the respondent had committed the alleged offence. Although in his Honour's opinion the evidence that this was a lie may be weak does not in my opinion exclude it from being put before the jury. It will be for the jury to decide whether it is a lie and if they reach that conclusion the contribution, if any, which it makes to their verdict.
The respondent allegedly repeated her lies in relation to Morris/Norris on more than one occasion. The Crown submitted to Whealy J that the respondent accordingly perpetuated her lies and the jury could be directed to approach the later occasions when she allegedly lied in this manner. If it be the case that she made the same or a similar statement on a subsequent occasion each of those occasions must be separately addressed. It may be that on the later occasion that the lie was told merely because, for whatever reason, and that reason may have nothing to do with the death of Tegan (if that has occurred), the respondent was not prepared to acknowledge that she had been untruthful on a previous occasion. In other words she may have felt trapped and found it necessary to repeat the lie. In those circumstances each lie would need to be separately considered and the jury instructed that there could be an innocent explanation for each of the subsequent statements even if the jury found them to be lies.
SIMPSON J : On 9 August 2010 Keli Lane (the respondent) was indicted on a charge that, on 14 September 1996, she murdered Tegan Lane. The indictment also contained three counts of perjury. The respondent entered pleas of not guilty to all charges. A jury was empanelled and the trial proceeded. During the course of the trial, the trial judge, Whealy J (as his Honour then was) made a number of interlocutory rulings with respect to evidence and other matters.
One of these rulings ( R v Keli Lane [No 13] [2010] NSWSC 1540, 3 November 2010) concerned evidence tendered by the Crown of three statements made by the respondent that the Crown contended to be lies, and lies that the respondent had told because she was conscious that she was guilty of the offence of murder. Although there was no issue that the evidence of the statements said to have been made by the respondent was admissible, and relevant to the assessment of the general credibility of the respondent, Whealy J refused to allow the Crown to rely upon the statements as evidence indicating consciousness of guilt. There is a discrete body of law, to which I will come, that governs the use that may be made of evidence of lies as consciousness of guilt.
On 4 November 2010, during the course of the trial, relying upon s 5F(3A) of the Criminal Appeal Act 1912, the Director of Public Prosecutions ("the DPP") appealed to this Court against that ruling. Section 5F(3A) is in the following terms:
"The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence , but only if the decision or ruling eliminates or substantially weakens the prosecution's case." (italics added)
Section 5F(5) is in the following terms:
"The Court of Criminal Appeal:
(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and
(b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against."
It was not disputed that the evidence was a significant part of the Crown case, and that its exclusion, for the purpose for which the Crown sought to rely on it, substantially weakened the prosecution's case.
An issue did, however, arise concerning the jurisdiction of this Court to entertain the appeal, and I will return to this at a later point in these reasons.
This Court heard argument on 15 November 2010 and, on 16 November 2010, made an order allowing the appeal, and vacating the ruling made by Whealy J, and ruled, pursuant to sub-s (5)(b) of s 5F, that the evidence in question was admissible as evidence of the guilt of the respondent on the charge of murder.
At that point, the Court reserved reasons, but made the following brief statement:
"1. While according due deference to the position of the trial judge in his appreciation of the factual matrix of the evidence in the trial, this Court is satisfied:
(i) that the use of the evidence as consciousness of guilt does not involve circular reasoning;
(ii) that, while proof that the respondent lied about the disposition of the child by saying that she had handed her over to Andrew Norris/Andrew Morris/the Perth couple is a necessary fact for proof of guilt, it is not sufficient to establish guilt of the respondent. Before this Court the prosecutor accepted this proposition.
(iii) that there exists a body of evidence from which a jury could conclude beyond reasonable doubt that any of the accounts given by the res pondent concerning:
Andrew Norris;
Andrew Morris;
the Perth couple;
was a lie;
(iv) that, subject to proper directions being given, there would be no confusion arising from the use of the evidence as consciousness of guilt;
(v) that the exis tence of evidence of a large number of lies told by the respondent is not a reason to refuse to admit evidence of particular lies as part of the circumstantial case to prove the guilt of the respondent.
It is not appropriate for the Crown to rely upon the 'perpetuation' of any lie as separate evidence of consciousness of guilt. In respect of the repetition of a lie each must be treated as separate evidence from which the jury may infer a consciousness of guilt. In each case the jury will have to be directed as to whether there was a reason for telling the lie other than because it revealed a consciousness of guilt. For example, the respondent may have considered herself locked into repeating the lie because of her previous lie."
These are my reasons for joining in the order that was made and in the statement extracted above.
It is necessary to begin with an account, as brief as the circumstances permit, of the case the Crown set out to make at trial.
The Crown case at trial
It is to be remembered that the trial judge's ruling, and the orders of this Court, were made during the course of the trial and before the Crown case was completed. This outline of the Crown case is drawn partly from evidence already given, and partly from evidence that the Crown anticipated calling. This Court was told that the Crown case was nearing completion at the time of the hearing.
The Crown case on the murder charge (the perjury charges are of no present relevance) was that, on 12 September 1996, at Auburn Hospital, the respondent gave birth to a daughter, Tegan Lane (the alleged victim), and that, two days later, on 14 December, she discharged herself and the baby, with the approval of the hospital staff. The same day, in circumstances the Crown cannot establish, the respondent killed the child and disposed of her body, which has never been found. In the absence of any direct evidence to prove the murder, the Crown relied upon an extensive and factually interwoven circumstantial case. I interpolate here that the defence case, as opened to the jury at trial, was that the respondent had, after Tegan's birth, given the child to her natural father, a man who was not, in the opening, named.
I do not propose to refer to all of the evidence the Crown has tendered, or proposed to tender, for the purpose of establishing its circumstantial case that the respondent murdered Tegan. I will refer to some items of the evidence. The majority of what follows is drawn from a helpful summary of evidence provided by the Crown, the accuracy of which (as a statement of the Crown evidence) was not challenged:
·on 18 March 1995 the respondent gave birth to a daughter, Tahlia Rose, at King George V Hospital for Women. Publication of the name of the father of that child is restricted pursuant to the Adoption Act 1965. None of the father of the child, the respondent's parents or other family, or her friends knew of her pregnancy or the birth of the child;
·the respondent was at the time a competitive water polo player, with ambition to compete in the Sydney Olympics;
·on 21 March 1995 the respondent surrendered Tahlia for adoption. The adoption was arranged by a social worker to whom the respondent told a series of lies about her personal circumstances. (These lies were relied upon by the Crown for credit purposes, but not as consciousness of guilt);
·the respondent falsely identified Duncan Gillies as the father of Tahlia; for the purpose of the adoption proceedings, she swore two false affidavits to this effect;
·in early 1996 the respondent was again pregnant, this time with Tegan. At this time she was in a relationship with Duncan Gillies. Duncan Gillies was unaware of the pregnancy. The respondent's family and friends were also unaware of the pregnancy;
·late in the pregnancy the respondent attended the Ryde Hospital, where she gave a significant amount of false information about her personal circumstances;
·the respondent gave birth to Tegan at the Auburn Hospital in the morning of 12 September 1996. Neither Duncan Gillies, nor the respondent's family and friends, were aware of the birth;
·the respondent made a number of false statements to a social worker at Auburn Hospital concerning her personal circumstances;
·Tegan's birth was never registered;
·the respondent left Auburn Hospital on 14 September 1996, with Tegan. She arrived at her parents' home that afternoon, without Tegan, was joined by Duncan Gillies, and the couple attended a wedding;
·on 16 September 1996 the respondent telephoned the Ryde Domiciliary Midwife Program advising that she would not need their services, as her home midwife (whom she named as Duncan Gillies' mother) would take over her care. This last statement was false;
·on 19 September Tegan was enrolled on the respondent's Medicare card; no claim has ever been made on the card for services of a medical, pharmaceutical or other nature for Tegan;
·in August 1998 the respondent became pregnant with a third child. She inquired about termination, but was told that the pregnancy was too far advanced. On 21 May 1999 she gave birth to a son whom she named Aaron Jai. The father of Aaron is known, and gave evidence in the trial. He was unaware of the respondent's pregnancy and unaware of the baby's birth. The respondent told a series of lies about her personal circumstances;
·the respondent surrendered Aaron for adoption. In that process she dealt with a social worker employed by the Anglicare Adoption Agency named Virginia Fung, and an employee of the Department of Youth and Community Services (John Borovnik). In the course of this process she told many lies about her personal circumstances including naming the father of the child as Aaron Williams;
·on 13 October 1999 Mr Borovnik discovered that the respondent had given birth to a daughter in September 1996. He made inquiries of the respondent. The respondent denied having given birth to a daughter at that time. Mr Borovnik informed Ms Fung;
·Ms Fung asked the respondent if she had given birth to any children other than Tahlia and Aaron; the respondent replied that she had not;
·on 18 October the respondent again denied to Mr Borovnik that she had given birth at Auburn Hospital in 1996;
·on 25 October 1999, in a letter to Ms Fung, the respondent confessed to having given birth to a daughter. She wrote:
"There were 3 children obviously I can't lie anymore as the paperwork is there. The middle child lives with a family in Perth although I have not had contact with them for a long time. They befriended me just before I had her and supported us. I am not able to give you many details as I am not sure of them myself. If my story isn't unusual enough as it already is! I know you probably can't believe it but I know that somehow that you know I am now being honest with you."
Mr Borovnik reported what he knew to police. By 2001, police were investigating. The respondent was interviewed on a number of occasions. Three interviews, respectively on 14 February 2001, 9 May 2003 and 8 January 2004, were electronically recorded. In the interview of 14 February 2001 the respondent told Detective Kehoe that she had had a brief affair with a man named Andrew Morris, to whom she had become pregnant, and that, on 14 September 1996, she had given him, as the natural father, the baby. She said that Andrew Morris was then in relationship with a woman "Mel" who had accompanied him when the respondent handed over the child. They had then driven her to her then residence in Venus Street, Gladesville. She said that Andrew Morris had lived in Balmain, and she no longer knew his whereabouts.
In another interview that was not electronically recorded (on 16 October 2002) the respondent identified Andrew Norris as Tegan's father, and gave a different account of some (relatively immaterial) circumstances. She said that she handed the baby to Andrew Norris at Auburn Hospital, and that she had then travelled home to Venus Street by taxi. In the course of this interview she named a "Lisa" as a person who had known her at the time of Tegan's birth, and had known of her relationship with Andrew Norris, and of her pregnancy.
In the interview of 9 May 2003 the respondent confirmed to Detectives Gaut and Edgtton that she had previously (on 14 February) misnamed the father of the child (as Andrew Morris), whose correct name (she said) was Andrew Norris, but maintained that she had handed the child to him. Detectives observed a number of inconsistencies in the account the respondent gave. In this interview, the respondent claimed that, in referring to "the Perth family" (in her letter to Ms Fung), she was referring to "Andrew and Mel". She named "Lisa" as Lisa Andreatta. In subsequent inquiries made of Lisa Andreatta, Ms Andreatta denied any knowledge of Andrew Morris.
Following that interview, on 19 May 2003, the respondent accompanied Detective Gaut on a drive around the Balmain and Rozelle area, where she had said Andrew Norris lived during the time she knew him, in order to locate his home unit. The respondent directed Detective Gaut to a unit block at 24 Wisbeach Street in Balmain, which she identified as closely resembling, in many respects, the block in which Andrew Norris had lived; and she identified two of the units as similar to, and possibly being, the unit in which Andrew Norris lived. Subsequent inquiries made by police revealed that no person by the name of Andrew Morris or Andrew Norris was known to have lived in that block, or in either of the identified units.
The Crown also relied on evidence obtained by authorised interception of the respondent's telephone conversations after the investigation began.
Although the Crown evidence includes almost countless lies said to have been told by the respondent, and numerous inconsistencies and discrepancies in accounts she had given concerning the birth of her three children (and there is no issue about the admission into evidence of the great bulk of these lies) only three were advanced by the Crown as evidencing a consciousness of guilt on the part of the respondent. These were:
(i)the account given by the respondent to Ms Fung, that she had given "the middle child" to "a family in Perth" with whom she had lost contact (this came to be called "the Perth couple lie");
(ii)the account in the interview of 14 February 2001 (and previously) that she had given the child to her natural father, whom she named as Andrew Morris (this came to be called "the Andrew Morris lie");
(iii)the later account, given in the interviews of 16 October 2002 and 9 May 2003, that she had given Tegan to her natural father, who she named as Andrew Norris (this came to be called "the Andrew Norris lie").
In my opinion, the "Andrew Morris lie" and the "Andrew Norris lie" were essentially the same lie. The substance of what was asserted to be a lie, in each case, was that the respondent had handed Tegan to her natural father. The change of name added strength to the Crown proposition that the respondent lied in saying that she had handed Tegan to her natural father.
The evidence relied upon by the Crown to establish the falsity of "the Perth couple lie" was, at least in part, as follows. The respondent had been arranging for the adoption of her third child, Aaron. In doing so, she was dealing with Mr Borovnik and Ms Fung. In what Whealy J described as "an unusual set of circumstances" (particulars of which were not before this Court) Mr Borovnik discovered that the respondent might have had a second child born at Auburn Hospital in 1996. He told the respondent that he intended to notify the police of the birth. On 13 October 1999 he informed Ms Fung of the birth. Ms Fung asked the respondent if she had given birth to any children other than Tahlia and Aaron; the respondent said that she had not. On 18 October 1999 Mr Borovnik telephoned the respondent at her place of employment and told her that he had received information that she had given birth to a baby girl at Auburn Hospital on 12 September 1996. The respondent denied having done so. On 20 October 1999 the respondent sent by facsimile a letter to Mr Borovnik, asking him not to contact anybody without giving her prior notice. On 25 October she sent the letter to Ms Fung that has been extracted above, acknowledging that she had in fact had three children; the letter contained the statement that is said to constitute "the Perth couple lie", that the respondent had given the child to "a family in Perth", with whom she had lost contact.
Shortly after, the respondent told Ms Fung that she was leaving Sydney for London. Ms Fung asked for information concerning the second child, to include in materials to be provided to Aaron or his adoptive family. The respondent said that she would call back but did not.
She then wrote to Ms Fung, saying that she would send a copy of "my story". The Crown contended that the respondent engaged in evasive conduct, and showed no interest in locating the Perth couple. That, the Crown suggested, was because the respondent knew that the Perth couple did not exist.
Further, so far as it appeared in this Court, in order to prove that "the Perth couple" account was false, the Crown relied upon the subsequent Andrew Morris/Andrew Norris versions of what had become of Tegan, the absence of any detailed information from the respondent, and what the Crown characterised as prevaricating answers given by the respondent when interviewed. The answers given to a series of questions in the interview of 9 May - questions 283-321 - amply support that characterisation.
The evidence upon which the Crown relied to support its assertion that each of the Andrew Morris/Andrew Norris accounts was false was significantly more extensive. It included inconsistencies in the detail given by the respondent on various occasions on which she spoke of the father of Tegan. It also included exhaustive investigations by police of individuals with the names Andrew Morris or Andrew Norris, that produced no relevant result; and it included the evidence that the respondent had identified the address which she said closely resembled the unit at Wisbeach Street, Balmain at which she had visited Tegan's father, inquiries in respect of which cast serious doubt upon the respondent's veracity.
The relevant legal principles
The principles applicable to evidence of lies told by an accused person as evidencing consciousness of guilt were comprehensively spelled out in Edwards v The Queen [1993] HCA 63; 178 CLR 193. They had their origin in Reg v Lucas (Ruth) [1981] QB 720 as summarised (uncontroversially) by McHugh J in Edwards (although in a dissenting judgment as to their application). They are (I have slightly paraphrased):
(1)the lie must be deliberate;
(2)the lie must relate to a material issue;
(3)the motive for the lie must be a realisation of guilt and a fear of the truth;
(4)the statement said to constitute a lie must clearly be shown to be a lie by admission or by evidence; where evidence of the lie is tendered as corroboration of the evidence of a witness, the evidence showing that the statement is a lie must be from a person other than that witness.
In the joint judgment of Deane, Dawson and Gaudron JJ, the following appears:
"But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realisation or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'."
Underlying the four propositions stated by McHugh J (and echoed in the joint judgment) is an initial proposition that is so obvious that it hardly needs to be stated (and usually is not). That is that the statement made by the accused said to be a lie is factually false or wrong. That a statement is factually false or wrong does not necessarily connote that it is a lie - that is what is meant by including in the requirements that it is a deliberate lie. (Where such evidence has been admitted for the stated purpose, it is always necessary that the trial judge give a direction drawing to the jury's attention possible alternative reasons that the accused person might have lied. That issue does not presently arise.)
It was, of course, essential for conviction that the Crown establish, to the satisfaction of the jury, and beyond reasonable doubt, that each of the Andrew Morris/Andrew Norris account, and the Perth couple account, was false. If there were any reasonable possibility that any one of those accounts was true, then plainly, the Crown could not prove that the respondent murdered the child. However, while that was a necessary condition for conviction, it was far from a sufficient condition for conviction.
It is necessary here to make one additional and important point. The decision in Edwards was primarily concerned with the directions to be given to the jury once the evidence has been admitted, and permitted to be used for the purpose of showing consciousness of guilt. Whether:
·a statement is false;
·a false statement is a deliberate lie;
·a deliberate lie relates to a material issue;
·a deliberate lie was told out of a realisation of guilt and a fear of the truth (and to avoid the consequences of that)
are all questions of fact, and within the province of the jury. The task of the trial judge, in determining whether the evidence may be used in this way, is to determine whether it would be capable of meeting those tests - that is, whether it would be open to the jury to find affirmatively that it did. If the evidence is capable of meeting those tests, then it is admissible, and, subject to discretionary considerations, or considerations raised by, for example, s 137 of the Evidence Act , the prosecution is entitled to have the evidence admitted as part of its circumstantial case. If admitted, it is the task of trial judge carefully to direct the jury in accordance with the four propositions stated in Edwards . The evaluation remains the task of the jury.
In some cases, factual falsity may be established by, for example, an admission by the accused. In others, factual falsity may be established by independent evidence of another witness, or, for example, photographs or documentation. In those cases, factual falsity is proved by direct evidence. But, like the offence the subject of the indictment, factual falsity of a statement made by an accused person may also be established by circumstantial evidence. That was the case here. The Crown sought to prove the factual falsity of the three statements made by the respondent by circumstantial evidence: a circumstantial case within a circumstantial case.
The circumstantial case relied upon to prove that the respondent's statements about the Perth couple, about Andrew Morris, and about Andrew Norris were lies had some overlap with, but was not entirely co-extensive with, the circumstantial case relied upon to prove the murder. For example, the Crown relied upon tendency evidence as a circumstance to prove that the respondent murdered Tegan (the tendency evidence was evidence that the respondent had, on one occasion before the birth of Tegan, and on one after, disposed of children by adoption, although on those occasions it was done lawfully). That evidence could not possibly go to the question of whether or not any of the three asserted lies was in fact a lie.
As is the case with proof of an offence by circumstantial evidence, it is the cumulative effect of the individual circumstances of which evidence is given that establishes (if the accumulation is sufficient to do so) that a statement was false. Thus, evidence tending to show that nobody by the name of Andrew Norris or Andrew Morris ever lived at the unit block at Wisbeach Street, Balmain could not, of itself, prove that nobody by either of those names existed; together with other evidence, however, it may make up a sufficient basket of facts to satisfy the jury that that is the case.
Each of the lies (whether they are seen as three lies, or two lies, one of which was repeated with variation as to name) directly concerned the respondent's disposal of her daughter, as to whose whereabouts the respondent knew inquiries of an official nature (by Mr Borovnik) were being made. By the time of the second and third lies, she was aware that a serious police investigation was under way.
There could be no serious dispute but that, if any of the asserted lies was in fact false, it related to a material issue. Nor, in the circumstances, was there any room for suggesting, of any of the statements found to be in fact false, that it was other than a deliberately told lie. There was no credible avenue for the respondent to have been mistaken about how she disposed of the child. In truth, the issues about each of the statements were:
·whether it was false; (as demonstrated by evidence);
·if so, whether it was motivated by a realisation of guilt and fear of the truth.
It will be recalled that counsel appearing for the respondent told the jury in opening that the respondent had given the child to the natural father. That being the case, the falsity of each of the statements assumed critical importance. That position taken on the part of the respondent, if it were accepted, also necessarily implied that her account to Ms Fung of giving the child to the Perth couple, or family, was false. It is difficult to see any real room for suggesting that that was other than deliberately false. It also necessarily suggested that at least one of the statements that the child had been given to Andrew Morris or Andrew Norris was false, although it is not so clear that that statement was deliberately false. As I have said, the substance of each of those accounts was that the respondent had given the child to her natural father. The name was of secondary importance.
The reasons for the trial judge in rejecting the evidence as consciousness of guilt were, essentially, encapsulated in a few paragraphs of a lengthy judgment. He said that that the respondent gave the baby to the natural father was "not merely peripheral to, or simply part of" the defence case, but was the defence case. He therefore held that a jury could only determine that the Andrew Morris/Andrew Norris story was lie if they were to accept the entirety of the Crown's circumstantial case.
He rejected the Crown's proposition that numerous pieces of evidence independently proved that the Andrew Morris/Andrew Norris account was a lie, and made reference to some of those items of evidence. He then said that the recitation of those suggested modes of proof clearly demonstrated that:
"... they by no means answer the description of immediate pieces of independent evidence capable of demonstrating, in a straightforward and simple manner, that the defence case is a lie."
He said that the evidence concerning the residence of Andrew Morris/Andrew Norris at Wisbeach Street, Balmain "is hardly a matter that is conclusively proved in the Crown case". He said that although that evidence may cast doubt upon the respondent's explanation, even considerable doubt, it could not, without the entirety of the Crown's circumstantial case, prove that it should be disbelieved as a reasonable explanation.
He then recognised that all other matters relied on by the Crown were "circumstantial matters" and considered that this gave rise to circular reasoning: he characterized the circular reasoning in the following way:
"... to argue that those facts can be used to demonstrate that, when she claimed she handed the baby to Andrew Morris/Norris, she must have lied; and that this lie, in turn, may be taken to demonstrate her guilt of the crime of murder."
In my opinion, as I have indicated above, there was a considerable circumstantial case upon which the Crown relied to demonstrate that each of the respondent's accounts of what she had done with Tegan was a lie. This was not, as was suggested, co-extensive with the circumstantial case of murder that the Crown sought to make. That is not to say that there were not common elements, or that the circumstantial case to prove lies was entirely quarantined from the circumstantial case on murder. It was therefore not correct to say that the jury could only find the Andrew Morris/Andrew Norris story to be a lie if they accepted the entirety of the Crown case. It was for the jury to determine whether or not any of the statements was false, and if so whether it was deliberately false; and, finally, whether any statement found to be false was made out of consciousness of guilt of the crime of murder.
The circularity argument was also advanced in Edwards , and rejected in the joint judgment. The Court said:
"... an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted ... ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."
Whether the statements made by the respondent were false, whether they were deliberately false, and, if so, whether they were made out of a consciousness of guilt, are three separate and independent questions. The evidence was available for the jury to make each determination. It does not necessarily follow, from a finding that the statement that the respondent gave the child to her natural father was false, that it was a deliberate lie; and, even if it were, it does not necessarily follow that the false statement was made because the respondent was conscious of having murdered the child. That was an inference available to the jury; and, commonsense dictates that it was an obvious inference if they were to make the preliminary findings.
In my opinion it was incorrect for his Honour to rely upon a finding that doubt about the residence of Andrew Morris or Andrew Norris at Wisbeach Street, Balmain was not a matter "conclusively" proved in the Crown case. That was to separate one aspect of the circumstantial case made in respect of the falsity of the statement, and elevate it to an essential requirement. Rather, the evidence concerning the Wisbeach Street residence was part of the factual matrix upon which the jury would be invited to find that the Andrew Morris/Andrew Norris story was false.
Moreover, in my opinion it was an error for his Honour to say that the suggested modes of proof:
"... by no means answers the description of immediate pieces of independent evidence capable of demonstrating, in a straightforward and simple manner, that the defence case is a lie."
There is no requirement that evidence of a lie demonstrate "in a straightforward and simple manner" that a statement is a lie; there will be occasions where evidence in a Crown case is complex and difficult to follow, but is nevertheless admissible.
I was, and remain, satisfied that the evidence is clearly capable of meeting the requirements of evidence as consciousness of guilt as succinctly stated by McHugh J in Edwards , and was therefore admissible for that purpose. Since the evidence was, in any event, admissible, no discretionary basis for its exclusion could arise. Section 137 of the Evidence Act had no application. In truth, the argument involved the proposed application of s 136, which empowers a court to limit the use of evidence if there is a danger that a particular use of it might be unfairly prejudicial, or misleading or confusing. None of those conditions here existed. For that reason, I joined in the order that the Court made.
Perpetuation
The Crown also sought to rely upon what it called "perpetuation" of the Andrew Morris/Andrew Norris lie. By this, it meant repetition of the assertion that the respondent had given the child to her natural father (by which ever name). The Crown identified nine different occasions upon which (in substance) that account had been given by (or on behalf of, in the defence opening) the respondent.
In my opinion, each such assertion must be treated as an individual and separate asserted lie, and the same tests will apply to each. As indicated in the short statement made by this Court in making the orders it did, each statement progressively made by the respondent may raise different considerations to be given as to alternative reasons for the lie. As suggested, the jury needed to consider the possibility that the respondent considered herself locked into a false story.
Jurisdiction
As indicated above, the Crown, in filing its appeal, originally relied upon sub-s (3A) of s 5F of the Criminal Appeal Act . The jurisdiction of this Court under s 5F(3A) depends upon the existence of two circumstances:
·a ruling on the admissibility of evidence;
·that the ruling eliminates or substantially weakens the prosecutor's case.
The jurisdictional issue arises because, on behalf of the respondent, while the significance of the evidence was recognised, it was contended that his Honour's decision was not a "decision or ruling on the admissibility of evidence". That is because, as mentioned above, the evidence was admissible; the debate concerned the use that the Crown wished to make of the evidence.
The jurisdictional issue having been raised, senior counsel for the Crown sought, and was granted (without opposition) leave to amend the Notice of Appeal in order to rely upon sub-s (2) of s 5F, which is in the following terms:
"The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies."
Sub-section (3A) was inserted following a number of decisions of this Court to the effect that sub-s (2) does not permit an appeal against a ruling that evidence is inadmissible: R v Powch (1988) 14 NSWLR 136; R v Bailey (1988) 36 A Crim R 30; R v Edelsten (1989) 18 NSWLR 213; Steffan v R (1993) 30 NSWLR 633. It was inserted in order to protect the Crown against a final, but erroneous, ruling on evidence against which, if the accused were acquitted, the Crown would have no redress. The limitation, that the appeal may be brought only if the decision or ruling eliminates or substantially weakens the prosecution's case, was designed, in accordance with the restrictions on s 5F itself, to limit the fragmentation of the criminal process by interlocutory appeal.
In R v Harker [2004] NSWCCA 427, Howie J (with whom Santow JA and Bell J agreed) appears to have thought that "a decision or ruling on the admissibility of evidence" expresses a broader concept than, for example, "a decision to admit evidence" (see [32]). As I have indicated, there was no issue that the evidence here in question was admissible, and no "decision or ruling" to admit it was called for. The decision or ruling was as to the extent of the use that could be made of it - the inferences the Crown could invite the jury to draw from it.
I have concluded that it is unnecessary finally to determine the basis of jurisdiction. In my opinion, while it is arguable, on the basis of Harker , that the decision was a ruling on the admissibility of evidence, if it were not that, then it was plainly, within sub-s (2), an interlocutory judgment or order. Accordingly, the Court had jurisdiction.
On one view, what Whealy J was asked to do was make an order under s 136 of the Evidence Act 1995, which permits the court, in specified circumstances, to limit the use to be made of evidence. That, in reality, is what his Honour did, although, in the bustle of the trial, no attention was paid to the technicalities of the ruling.
HOWIE AJ: I agree with Simpson J.
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