CASE NOTE: Keli Lane Case
The Keli Lane case has captured the attention of the Australian public since questions first emerged regarding the disappearance of her baby, Tegan in 2005. This attention intensified when Lane was charged with Tegan’s murder and subsequently found guilty by a Jury in 2010.
Following the Australian Broadcasting Corporation (ABC) documentary, Exposed, renewed interest and attention has been drawn to Keli Lane’s case. Exposed raised questions and doubts about Lane’s guilt and whether she received a fair trial.
This case note provides a review of both the Trial and Court of Appeal judgments and will demonstrate that even in high profile cases that attract intense media scrutiny, the principles that underpin the rule of law are still evident. This case note is in addition to the Keli Lane Rule of Law Mash-up.
Court of Appeal Judgement
Facts of the case
Keli Lane was convicted by a jury of one count of murder and three of false swearing (this is making false statements under oath) on 13 December 2010. It was the Crown’s case that on or about 14 September 1996, Keli Lane murdered her then 2-day-old daughter Tegan Lane.
Tegan was born on 12 September 1996. Lane left the hospital two days later with Tegan and this is the last time Tegan was seen or heard from. It was Lane’s argument that she left the hospital and gave the baby to her father, Andrew Morris or Norris (Lane could not remember which).
Tegan Lane’s disappearance was only discovered years later when a social worker discovered that Tegan’s birth had never been registered. This set off a chain reaction with Police commencing an investigation and a Coronial Inquest into Tegan’s disappearance. The investigation resulted with Lane being charged with Tegan’s murder. After a six-month jury trial, Lane was convicted.
The Crown’s case was entirely circumstantial, as Tegan’s body was never found, focusing on motive and opportunity.
The Crown submitted that Lane had multiple secret pregnancies in the 1990s, two ending in termination and two in adoption. During the course of the police investigation into Tegan’s disappearance, Lane gave a number of different versions of what had happened when she left Auburn Hospital with Tegan on 14 September 1996. The Crown argued that there was a pattern of behaviour, that included keeping secrets, and that Lane lacked any credibility. “The inconsistent statements concerning what happened to Tegan were considered lies by the Crown. Their existence suggested that Lane had a guilty conscious.” The Crown put to the Jury that Lane’s desire to keep the birth of Tegan a secret and keep her reputation intact was motive for the murder. The Crown also suggested that there was no viable alternative to the story they put, that Keli Lane murdered her baby.
Lane’s defence was and remains that the Crown could not prove that Tegan was dead, nor did they have any evidence that would indicate that Lane was responsible. Lane maintained that she gave Tegan to her natural father, however, he could not be found
At first instance, the case was heard in the Supreme Court of New South Wales before Justice Whealy and a Jury. The trial commenced on 9 August 2010 and concluded on 13 December 2010. The Jury returned a unanimous verdict of guilty for the false swearing charges and a majority verdict of guilty for charge of murder.
Lane appealed the decision to the Court of Criminal Appeal.
Lane applied for bail pending the outcome of her Appeal. This application was refused on 28 February 2013. Bail was refused as Lane was not able to satisfy section 30AA of the Bail Act 1978 (NSW), which required Lane to establish that a special or exception circumstance exist justifying the grant of bail.
Lane’s appeal was heard before Court of Criminal Appeal Justices Bathurst, Simpson and Adamson on 23 July 2013. Their Honour’s decision to dismissed the Appeal.
The Application of rule of law principles
1. The Presumption of Innocence and the Burden of Proof
In criminal law, the burden of proof lies solely with the prosecution (the Crown). It is their responsibility to prove beyond a reasonable doubt that the accused is guilty.
This burden of proof reflects the important principle that an accused is entitled to a presumption of innocence. The highest standard that can be place on the prosecution in a criminal trial is that they must prove the case against the accused “beyond reasonable doubt”.
One of the major issues that the Lane case raises is whether, given that the Crown’s case was entirely circumstantial, the Crown met its responsibility to prove beyond a reasonable doubt that Lane murdered her daughter Tegan.
The Jury in Lane’s case, as with all criminal trials across Australia, would have been reminded that Lane has the right to be presumed innocent of the charge, and only to be convicted if they the Jury are persuaded “beyond a reasonable doubt”.
The trial judge provided directions to the jury with respect to the charges Lane faced. In providing directions on murder His Honour stated
[t]he crime of murder has been committed by the accused if the Crown has established beyond a reasonable doubt each of the following:
The death of Tegan Lane;
That it was the deliberate act of the accused that caused the death of Tegan Lane; and
That the act causing death was done by the accused with an intention to kill Tegan Lane.”
…. if the Crown has not satisfied you beyond a reasonable doubt of the death of Tegan Lane, you must find the accused not guilty and acquit her of murder.
The notion of what constitutes “beyond a reasonable doubt” is not intended to be explained to the Jury. In accordance with the High Court decision in Green v R (1971) “the phrase “beyond a reasonable doubt” is not to be explained beyond its words. It is for the Jury to determine in their minds whether, on the evidence presented by the prosecution, they are satisfied beyond a reasonable doubt.”
2. The Role of the Jury and the Judge.
In a criminal jury trial, it is important to remember the separate and distinct role that the Judge and the Jury play.
- Solely decide on questions of fact
- Listen to all the evidence presented
- Make a determination based on that evidence as to whether the prosecution has proved the charges beyond a reasonable doubt
The High Court case of Alford v Magee  outlines that the duty of a judge in a jury trial is to:
- To explain to the jury the relevant law (without excursions into interesting but inapplicable legal principles);
- To place that explanation in the context of the facts of the case;
- To explain how the law applies to the facts of the particular case;
- To give these explanations in the context of the issues in the particular case; and
- To identify the issues in the case as they have been fought between the parties.
Much has been made of the Trial Judge’s remarks following Lanes conviction. Justice Whealy, who presided over Lane’s Trial, has spoken publicly about his unease at the outcome of the case. Those who criticise Lane’s trial frequently cite the remarks made by Justice Whealy in saying that he was unsatisfied with the jury’s verdict and felt the prosecution case was not proved beyond a reasonable doubt.
However, it is important to remember that in the Australian legal system, the personal opinions of the judge are irrelevant. The judge is bound to follow the decision of the jury. As Justice Whealy said when sentencing Lane
whatever views I may have had about the strength of the Crown case must take second place to the jury verdict… in the present case, I simply do not know how the child met her death. As I have said, however, I must accept that the act causing death was carried out by the offender, and that it was accompanied by an intention to kill.
3. Right to Silence
Keli Lane did not give evidence at trial, which is her legal right. As Justice Whealy said “Ms Lane has not given evidence at trial or in the sentencing process. She was not obliged to do so”. The right to silence is a fundamental legal principle that underpins the rule of law and ensures that no person is required to incriminate themselves. As it is up to the prosecution to prove guilt beyond reasonable doubt, an accused person is entitled to remain silent from the time of questioning until the conclusion of the trial. There are plenty of good reasons why lawyers tell their clients to remain silent during questioning. Being questioned is a highly stressful event and their responses may not help their defense.
In NSW Section 89 of the Evidence Act makes it clear that choosing to exercise your right to silence cannot be considered unfavourably by a judge or a jury.
4. Right to Appeal
In Australia, a key component of the legal system is the right to appeal. A person can appeal a judge’s decision to a higher court but can only do so on either:
- the grounds of an error of law,
- an error of fact, or
- an error of mixed fact and law.
Keli Lane appealed her case, which was heard by the New South Wales Court of Criminal Appeal. This is the highest court in State of New South Wales for criminal matters, with only the High Court sitting above it. The Court of Criminal Appeal typically sits with three judges, although five judges may sit when significant legal issues needs to be considered. Each judge can make their own decision, or they can combine to write joint decisions.
Lane appealed against her conviction on the charge of murder, raising initially eight grounds of appeal. . Listed below are the eight grounds of appeal that were pleaded.
“1. The Trial Judge erred in failing to leave the alternative count of manslaughter to the jury.
- The trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor. In particular that he reversed the onus of proof in his closing address by positing a series of questions that he stated the defence had to answer.
- A separate trial application should have been made by Trial Counsel in respect to the perjury/false swearing charges.
- The Trial Judge should have directed the Jury that the charge of Infanticide was an alternative. (withdrawn)
- The trial miscarried by the failure of the Trial Judge to discharge the Jury after the Crown Prosecutor made prejudicial remarks in his opening address.
- The Trial Judge erred in granting an application pursuant to Section 38of the Evidence Act 1995 made by the Crown Prosecutor to have Mr Peter Jerry Clark cross examined due to him making an allegedly inconsistent statement.
- The verdict is unreasonable and cannot be supported by the evidence.
- Failure of the Trial Counsel to ask for a direction that The Applicant had suffered prejudice as a result of the delay in prosecution.”
Ground 1: The Trial Judge erred in failing to leave the alternative count of manslaughter to the jury
The Court dismissed the first ground of appeal based on the argument that the alternative count of manslaughter was never put to the jury not because it was an error of the Judge but because it was a strategic decision by Lane’s defence team. The Court of Appeal stated “A person accused of murder may perceive an advantage in casting upon the jury the responsibility of determining whether he or she is guilty of murder, or is to be acquitted, with no middle course available.”
The Court of Appeal concluded, that there was before the jury a great deal of evidence that the appellant was determined not to accept responsibility for the care of a child. The Court of Appeal determined the jury were also entitled to take into account evidence of the accounts Lane gave concerning her disposal of Tegan to, as she asserted, the child’s natural father. The jury were entitled to accept the Crown contention that these were lies evidencing consciousness of guilt. These conclusions were in the Court of Appeals view, sufficient to provide the evidentiary foundation for an inference that, in causing the death of the child, Lane had intended the killing. Therefore having the mens rea required for Murder. Accordingly rejecting the ground appeal.
Ground 2: The trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor. In particular that he reversed the onus of proof in his closing address by positing a series of questions that he stated the defence had to answer.
In dismissing Lane’s claim that the Crown had reversed the onus of proof or alternatively failed to establish her guilt beyond a reasonable doubt, the Court of Criminal Appeal noted that the Trial Judge in summing up the case to the Jury gave the following direction:
The Crown then concluded its submissions by asking you to bear in mind a number of questions when you were considering the defence arguments. I think you should be careful to remember that they do not impose some type of onus on the defence to answer them all. The defence does not have an onus of proof. They are more matters for your consideration in the light of all the evidence. The point I am making is that the Crown does not, by asking the question, alter or change the onus of proof which remains always on the Crown
The direction provided by the trial judge is significant as it emphasise that it is the prosecutions role to prove beyond a reasonable doubt that the accused committed the offence. The Court of Criminal Appeal view was that it was inappropriate for prosecutor to pose questions in summing up their case but once the above direction was given, the jury was not under any misapprehension as to the onus of proof. The ground failed for these reasons.
Ground 7: The verdict is unreasonable and cannot be supported by the evidence
The role of the appeal court in considering a ground that a conviction is unreasonable and cannot be supported by the evidence is that the court asks itself the question “whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond a reasonable doubt the accused was guilty”. M v The Queen  HCA 63; 181 CLR 487, MFA v The Queen  HCA 53; 213 CLR 606 and SKA v The Queen  HCA 13; 243 CLR 400.
The Court of Appeal rejected Lane’s argument that the evidence to establish motive was weak. The Court of Appeal stated “There was strong evidence that the appellant did not wish to accept responsibility for a child. In any event, it is not essential that the Crown establish a motive; evidence tending to establish motive was, in this case, one of many elements making up a circumstantial case”.
In the Court of Appeals view they rejected the ground that the verdict was unreasonable and stated:
The evidence, in our view, convincingly excluded any reasonable possibility of the second alternative, that the child had been given to her father. The police investigation virtually excluded any possibility that there existed a man named Andrew Morris/Andrew Norris with whom the appellant had had “a brief affair”. Not one person with whom the appellant had been in contact at the relevant time came forward to say that he or she had known the appellant and Andrew Morris/Norris. The evidence strongly established that no such person had lived in the Wisbeach Street apartments that the appellant said that he had lived in. The police investigation pursued every line of inquiry left open by the appellant – his date of birth, his occupation (in finance), his participation in water polo. Leads given by the appellant proved false…. Once the reasonable possibility that the appellant might have given the child to Andrew Morris/Norris is excluded, only one inference remains reasonably open. That is that Tegan is dead. In all of the circumstances, we are satisfied that the verdict of guilty was amply open to the jury, and we are satisfied that the evidence established beyond reasonable doubt the appellant’s guilt of the offence.