SUBMISSION

REGARDING CASE OF KELI LANE

In September and October 2018, the Australian Broadcasting Corporation (“ABC”) broadcast
Exposed: The Case of Keli Lane. It comprised three episodes. Exposed made various claims about
the trial and conviction of Keli Lane (hereafter “Keli”)1. As will be seen, many of these claims were
inaccurate or misleading. It appears that some of the claims were deliberately false, although I
cannot be certain. Judging by social media, it appears concern about Keli’s conviction has been
whipped up by Exposed. To what extent the clamour represents a disproportionately loud minority
is not known. But much of what I have seen on Exposed and social media calls the law, and the
integrity of the trial system in New South Wales, into disrepute.

Exposed arrived with promotional publicity strongly implying that it would reveal new information.
However, many of the claims aired on the program were arguments pressed by Keli at her trial in
2010 or complaints made by Keli at the hearing of her appeal in 2013. There was, and is, no novelty
or “revelation” about these matters. They are history. Keli’s arguments were heard and rejected by
the jury in 2010. Keli’s complaints about the trial were considered by the NSW Court of Criminal
Appeal (“CCA”) in 2013 and rejected 2. Further legal arguments were rejected by the High Court of
Australia (“HCA”) in 2014 3. Exposed appears to be an attempt to re-agitate Keli’s court losses. This
time the chosen forum was the proverbial court of public opinion.

I will deal with the Exposed claims that I consider to contain unfair or improper stings. I will not deal
with them in any particular order, much less in the order in which they appeared on Exposed. I have
sought to paraphrase the claims because they are not articulated clearly. This is not intended as a
criticism. It rather speaks to me of legal inexperience. I apologise in advance if I have unfairly
construed or characterised any of the material that was aired.

Claim 1 – A friend of Keli, one Natalie McCauley, was not called by the Crown to give evidence to
the jury and, if she had been called, she would have said Keli told her about an “Andrew”, thereby
corroborating Keli on the existence of a person called “Andrew”, and accordingly the jury would
have entertained doubt about Keli’s guilt 4

This claim is, at best, a misunderstanding and, at worst, a fabrication by Exposed.

First, Ms McCauley actually did give evidence at the trial, albeit not to the jury. She gave so-called
“early” evidence before the trial proper (with jury) commenced. Her evidence was taken in this way

1
Some of these claims are veiled. They might equally be called insinuations or suggestions, depending on the
way each is presented. However, in substance, even if not form, none ought to be regarded as anything but
serious claims.
2
Lane v. R [2013] NSWCCA 317 (13/12/13).
3
Lane v. The Queen [2014] HCA Trans 171 (15/8/14).
4
Exposed, Episode 3, at 0.45.
 2

to accommodate her unavailability to give evidence during the trial proper5. It can be inferred that
her evidence was taken in this way at her request. This is not common, but it happens from to time.
Turning to the evidence she in fact did give (in the absence of the jury), she spoke of having met
“Andrew”. She then agreed under cross-examination by the Crown that she could not remember
meeting “Andrew”. She had mentioned nothing of “Andrew” in an earlier statement to police.
Thus, the following things can be said about Ms McCauley:
(1) she was unavailable to give evidence to the jury;
(2) she did in fact give evidence in the absence of the jury; and
(3) she conceded she had not met an Andrew after initially claiming she had.
It was easy to see why Ms McCauley was not called to testify to the jury – her evidence was either
unreliable or untruthful.

On Exposed, Ms McCauley came up with yet another version of events. This time she claimed Keli
had told her about the affair with Andrew (no mention of having met Andrew) 6. Thus, by this stage,
Ms McCauley had come up with four different versions of the state of her knowledge of Andrew:
1. She knew nothing of him (police statement);
2. She had met him (initial evidence);
3. She had not met him (later evidence under cross-examination);
4. Keli had told her about him (Exposed);
Apparently undeterred by these inconsistencies, Ms McCauley then told Exposed that she had been
“clear” about the state of her knowledge of Andrew “from the start” 7. It can only be concluded
that Ms McCauley’s evidence was unreliable in the extreme and Exposed must, or should, have
known it.

Furthermore, Keli herself seems to have been unaware of Ms McCauley knowing of Andrew. When
asked by Detective Gaut on 16 October 2002 whether any of her friends might know “Andrew”, Keli
mentioned nothing of Ms McCauley knowing him. Also, when asked by Detective Kehoe in 2001,
Keli said things consistent with Ms McCauley not knowing Andrew or not having been around when
she, Keli, was having her affair with Andrew. Again, Exposed would, or should, have been aware of
this.

This begs the question of just whose decision it was to not call Ms McCauley to testify to the jury.
There were four matters from which, in my opinion, it must be inferred that Ms McCauley was in
fact Keli’s witness:
1. Her evidence was prima facie favourable to Keli;
2. Observer Rachael Chin wrote of Ms McCauley’s actual (pre-jury) evidence in terms strongly
suggestive, if not conclusive, of the fact that Ms McCauley was cross-examined by the Crown
prosecutor, the only available inference being that Ms McCauley was called by Keli’s
counsel8;

5
This was on account of her own advanced pregnancy and her need to fly overseas to get home before the
pregnancy advanced any further.
6
Exposed, Episode 3, at 0.45
7
Ibid.
8
Chin, C.J., Nice Girl, Simon and Schuster, 2011, p. 268.
 3

3. The decision to not call Ms McCauley was part of a “deal” between the Crown and the
defence involving the non-calling of Ms McCauley and another male witness (discussed
further below). For reasons which will later become obvious, the Crown’s part of this deal
must have been the non-calling of that other witness, meaning that Keli’s part of the deal
had to be the non-calling of Ms McCauley; and
4. Another witness, when later interviewed by Exposed, would refer to a statement by the
Crown prosecutor to the effect that Ms McCauley was “one of Keli’s witnesses” 9.
For these reasons, it has to be inferred that Ms McCauley was Keli’s witness and it was Keli’s
decision not to call Ms McCauley to testify to the jury. It was extraordinary that Exposed overlooked
this.

Associated with this, Ms McCauley was of course a friend of Keli. There was no suggestion she has
ever had legal qualifications or experience. Notwithstanding her lack of credentials, she was asked
by Exposed to give an opinion about how her own evidence (had it been tendered to the jury) would
have effected the outcome of the case. This was self-evidently absurd. Having been led by the
interviewer, Ms McCauley volunteered the following with a Dirty Harry Callaghan style of delivery:
“I’ve got two words for you - reasonable doubt” 10. This was ludicrously self-serving, not to mention
wrong.

Worse was yet to come. An ex-police officer, one Sharon Rhodes, was the next person interviewed
in connection with Ms McCauley. The interview proceeded in this way:
“Q. What did the [Director of Public Prosecutions – “DPP”] want to do with [Ms]
McCauley?
A. Neutralise her because, if she was going to be damaging to the prosecution in any
way, they needed to neutralise any damage that she may have on the prosecution” 11
This created the impression that Ms McCauley’s evidence was a real obstacle in proving guilt against
Keli12. However, as discussed, Ms McCauley’s actual (pre-jury) evidence proved unreliable or
untruthful, and was therefore of no importance. Either Ms Rhodes and Exposed were unaware of
Ms McCauley’s evidence, or they chose to ignore it. Either way, the reporting and presentation of
the matter was very inaccurate13.

Finally, Keli said nothing about Ms McCauley not testifying to the jury when she, Keli, appealed to
the CCA 14.

Claim 2(a) – A witness whose name really was Andrew Morris was “coached” or “led” by the
Crown to give false evidence.

9
Exposed, Episode 3, at 0.44.
10
Exposed, Episode 3, at 0.46.
11
Ibid.
12
It also tends to reinforce that Ms McCauley was Keli’s witness.
13
It might be added that Ms Rhodes was not an officer of the DPP. Therefore, it is questionable, to say the
least, how she can speak to the DPP’s intentions in respect of Ms McCauley, or anything.
14
Lane v. R [2013] NSWCCA 2013 (13/12/13).
 4

Claim 2(b) – A “deal” was done to keep the real Andrew Morris and Ms McCauley from giving
evidence;

These matters were intertwined. They cannot be sensibly disentangled.

Episode 3 of Exposed saw a clumsy attempt to convey that the real Andrew Morris (hereafter
“AM1”) had been coached or led by police into signing a statement to the effect he had had a sexual
encounter with Keli on a beach.

AM1 was one of 41 men identified by police throughout Australia who were of relevant age and had
the name Andrew Morris or Andrew Norris. He did not have Tegan. He explained to Exposed that
he was called in by detectives for an interview:
“I just got a phone call from a detective. He’s looking at a homicide. And he was just
wondering if I could come in to have a look at some photos’” 15

AM1 explained that he was shown a photo of a group of young people which included Keli Lane and
the detective/s then asked “well how do you know her?”:
“I said ‘I don’t know, I can’t remember, she just looks familiar’” 16

AM1 then explained to Exposed that he was supplied with further details by the police and he
formed the opinion that Keli was the girl with whom he had had the sexual encounter:
“With the information that I was then provided by the police like they told me she grew up in
the northern suburbs of Sydney, they told me that she was a groupie following all the surf
club competitions, made me think well, oh, it must have been her, it must have been Keli
Lane” 17

AM1 signed a statement before the trial, part of which was shown on Exposed, and part of this
statement read as follows:
“In this photo it depicts a female person in a blue denim skirt and white striped t-shirt. This
looks familiar. Her dark eyebrows remind me of someone I may have known whilst residing
in New South Wales. There is a possibility that she may have been one of the girls I had a
sexual encounter with in Newcastle. However I cannot be sure if she was. She may also be
the girl I met in the caravan park in Dee Why or North Narrabeen that I did not have a sexual
encounter with.” 18

15
Exposed, Episode 3, at 0.43.
16
Ibid.
17
Exposed, Episode 3, at 0.43..
18
Exposed, Episode 3, at 0.44.
 5

Another piece of a statement, apparently signed by AM1, which may or may not have been the same
as the statement above, was then shown on Exposed and the relevant part of this statement read as
follows:
“Q. And is that the same girl that you were referring to as the girl whose name you
couldn’t remember that you met that night at North Narrabeen had the sexual
encounter with? [sic]
A. Yeah.
Q. And I’ll just show you one other photograph, this one’s . . . December of 1995; can
you pick out Keli . . . from that photograph?
A. Yeah, that’s the photo that I picked out before.” 19

This evidence had the potential to disprove Keli’s defence that she had given Tegan to an “Andrew
Morris”. Here was an “Andrew Morris”, who it could be inferred was the “Andrew Morris” who had
slept with Keli, and he did not have Tegan.

Pausing there, there does not appear to be anything remarkable about the gathering of this
evidence from AM1. It looks like he was initially unsure of his identification of Keli (not unusual).
Police have “led” him to some extent by giving him some details about Keli (perhaps not ideal, but
not unusual, and hardly sinister in the mere context of signing a statement). He has considered that
information and come to the view that it “must have been Keli” (not unusual). There does not seem
to have been any undue cajoling by the police. Quite to the contrary, it appears AM1 came to his
final stated position of his own free will. He does not appear to have been under any legal incapacity
(under age or mentally incapable). He appeared healthy and intelligent, aged possibly in his 30s or
40s. He appeared relaxed and light hearted. He smiled during the interview. He made a clapping
motion and sound near the start of the filmed scene apparently in jest with the camera crew. It did
not look like recall of the events was causing him anxiety nor that he perceived there was anything
untoward done by anybody. All in all, he looked quite pleased with himself 20. AM1 might be the
only person in the recent history of jurisprudence in NSW who has found the whole experience of a
police interview rather pleasant and the source of much mirth and merriment.

Having said all of that, clearly AM1’s identification was not the most convincing of identifications. It
is questionable whether the Crown prosecutor would have been confident about the prospects of
the jury accepting it.

In August 2010, AM1 gave early (pre-jury) evidence. It became apparent during this evidence that
his sexual encounter at North Narrabeen was in 1994, not 1996. Therefore, it could not have been
Keli with whom he slept. AM1’s evidence was incapable of supporting a case that he was the
“Andrew Morris” with whom Keli slept (and to whom she gave Tegan). What followed at the trial,
as best as I can interpret events, and unsurprisingly, was that the question of whether AM1 was to
actually give evidence to the jury was left in abeyance whilst discussions were undertaken between
the parties about what was to be done with him and Ms McCauley. Ultimately, and unsurprisingly,
agreement was reached that AM1 was not to be called to give evidence to the jury.

19
Ibid.
20
Exposed, Episode 3, at 0.42.
 6

Notwithstanding the obvious irrelevance, or lack of utility, of AM1’s evidence, Exposed made a
determined effort to make out a case through him that the police had improperly influenced him to
give evidence against Keli. In a later segment of the interview with AM1, he stated the following to
the reporter:
“I suppose I was led down to believe [Keli was the girl] I slept with” 21
This suggested that AM1 was now (in 2018) reneging on his statement(s) to the police. He was now
suggesting that in fact the girl he slept with was not Keli and he had been “led” by police to believe it
was Keli.

Then the reporter interviewed an ex police officer, one Sharon Rhodes, and introduced for the first
time the notion that AM1 had been “coached” as well as “led”:
Q. Looking back on this now, considering the pressure can you acknowledge the
possibility that Andrew Morris was led or coached?

Rhodes Yes.
Q. To come up with a memory.
Rhodes Yes I can see that in hindsight, yes I can. I don’t like admitting that but yeah I
can see that 22
At the outset, leading is not the same as coaching. Coaching is impermissible under any
circumstances. Having watched the whole of Exposed, I remain unaware of any real evidence of
coaching, nor any evidence from which a sensible inference of coaching could be drawn.

True it was there was leading of AM1 in the preparation of his statement, or at least it looks like
there was 23. But it was mild, and hardly improper. Moreover, leading a person for the purpose of a
statement is not impermissible. It is not desirable, but equally it is not prohibited. Leading
witnesses is generally impermissible in the oral examination of witnesses in court, but it is not
prohibited in the formulation of a statement. In any event, it was of no consequence because AM1
would not give evidence to the jury.

The next development was a resumption of the interview with Ms McCauley. This produced more
mistakes, lies and/or failures of memory:
Q. Do you have any idea why you weren’t called as a witness?

McCauley No 24
Apart from the rather glaring fact that she was called as a witness (pre-jury), Ms McCauley must
have known full well the reason she was not called as a witness before the jury: she was unavailable.
But Ms McCauley was told by Exposed that she had been “traded out in a witness swap [for] a man

21
Exposed, Episode 3, at 0.47.
22
Exposed, Episode 3, at 0.48.
23
For all I know, the detective in question may even deny that. But for present purposes I am content to
assume, in Exposed’s favour, that AM1 was “led’ in the preparation of his statement.
24
Exposed, Episode 3, at 0.48.
 7

called Andrew Morris” 25. Then a Dr Ruyters from an organisation known as the Innocence Initiative
made this comment:
“The deal was that [Ms McCauley] wouldn’t be called in exchange for [AM1]
not being called . . . part of the game playing that goes on during the trial
process I think there’s an enormous lot that the public doesn’t know about
the game playing” 26
The “witness swap” and “game playing” were apparently references to the “deal”. The “deal”
seems to have been an agreement between the parties to dispense with the evidence of Ms
McCauley and AM1. However, as we have seen, the evidence of each witness was of no use at all. It
was hardly surprising, or deserving of characterisation as “game playing”, that an agreement was
reached between parties to not take up the jury’s time with such witnesses. Whealy J would later
state to Exposed in a separate interview that he saw nothing sinister about the “deal”.

Then Ms Rhodes again:

Q: If the jury didn’t hear from everyone they should have, what does that make
the trial?
Rhodes: I think it’s not fair. The jury needs to hear from everybody 27
Elsewhere she claimed that the jury should hear from everybody, good or bad because “that’s what
they do, that’s their job” 28. It was not clear whether these statements were directed towards the
defence counsel for his omission to call Ms McCauley to testify to the jury, or the Crown prosecutor
for his omission to call AM1 to testify to the jury. If Ms Rhodes was directing herself to the defence
counsel, she was wrong. There was no obligation upon defence counsel to call all witnesses or
evidence in his possession. If Ms Rhodes was directing herself to the Crown prosecutor, she was
equally incorrect. The situation was governed by the New South Wales Bar Rules (“Bar Rules”) which
provided, relevantly, as follows:
82. A prosecutor must place the whole of the relevant evidence before the court.
88. A prosecutor must call as part of the prosecution’s case all witnesses whose
testimony is admissible and necessary unless the defence counsel consents to the
prosecutor not calling a particular witness or the prosecutor believes on reasonable
grounds that the witness is plainly untruthful or plainly unreliable.
[emphasis added]
The defence counsel plainly consented to AM1 not being called. Even if that was incorrect, the
Crown prosecutor would have been entitled to regard AM1 as not relevant or necessary. Therefore,
the Crown prosecutor had no obligation whatsoever to call AM129.

At the end of the day, it was the Crown prosecutor’s decision as to which witnesses were to be
called for the prosecution, and the Crown prosecutor’s decision alone30. It was not Ms Rhodes’

25
Ibid.
26
Exposed, Episode 3, at 0.47 and at 0.49.
27
Exposed, Episode 3, at 0.49.
28
Exposed, Episode 3, at 0.45.
29
The current version of those rules was introduced in 2014, but is not relevantly different to the rules which were extant
in 2010.
 8

decision. There could not be any controversy about the Crown prosecutor’s omission to call AM1. It
is not hard to imagine the chaos that would reign in the justice system if the law did not assign the
Crown prosecutor the discretion about which witnesses ought to be called for the prosecution.
Trials would be longer and more expensive and juries would become distracted by irrelevant,
unnecessary or untruthful witnesses, and so on. There was no basis for calling into question the
Crown prosecutor’s decision as to which witnesses were called to give evidence to the jury.

It was telling that in another interview with Ms Rhodes towards the end of Episode 3, she explained
that “for reasons that I still don’t fully understand the decision was made not to put [AM1] on the
stand” 31. Ms Rhodes was correct so far as her failure to understand was concerned. She plainly,
and simply, did not understand what was going on at the trial. None of these interviews with the
patently unqualified Ms Rhodes should have been broadcast. They were misleading and apt to
confuse and distract.

In summary, on Ms McCauley and AM1:

1. there was no coaching of either witness;
2. whatever leading of AM1 took place was minor and inconsequential;
3. their evidence was either untruthful, unreliable, irrelevant or unnecessary (and indeed
unavailable in Ms McCauley’s case);
4. neither counsel had an obligation to call either witness;
5. it was in fact Keli who chose not to call Ms McCauley to testify to the jury;
6. a conscientious investigation by Exposed would have revealed all of the above.

Claim 3 – Keli has been prevented from telling her side of the story 32

This was a very misleading, if not preposterous, claim.

It was articulated in terms of “the defence” not calling Keli to give evidence, creating the impression
that Keli wanted to give evidence but her lawyers denied her that right. But there is not a shred of
evidence that the lawyers engaged in such improper conduct. The indisputable fact was that Keli
herself elected not to give evidence at her trial. She was not under any legal incapacity. Keli elected
to not give evidence and thereby gain the forensic advantage of avoiding cross-examination. She
took advantage of her right to remain silent. It is trite that, in the circumstance of her obvious and
severe credibility problems, it would have been forensic suicide for her to give evidence.

Furthermore, it is not known whether Keli privately confessed her guilt to her lawyers. If she did,
then her lawyers were ethically constrained from calling her to give evidence that was positively
inconsistent with murder 33.

30
Lane v. R [2013] NSWCCA 317 (13/12/13) at paragraph 164; Richardson v. Queen [1974] HCA 19; 131 CLR
116 at 120-121.
31
Exposed, Episode 3, at 0.44.
32
Exposed, Epsiode 3, at 0.49.
33
Rule 79 of the NSW Bar Rules.
 9

In any event, the jury was hardly deprived of Keli’s “side of the story”. Her story was spilled out in
considerable, even if dishonest, detail in videotaped records of interviews and documents which the
jury saw and heard.

Keli mentioned nothing about being deprived of giving her side of the story when she appealed to
the CCA. The appeal was Keli’s opportunity to spell out all of her complaints about the trial. She
said nothing about being prevented from telling her side of the story.

The makers of Exposed must, or should, have known about the matters raised above. It was bogus
to try to suggest the conviction was questionable on the basis that Keli was deprived of the
opportunity of telling her side of the story. It should never have been broadcast.

Claim 4 – Keli was discharged from Auburn Hospital at 2.00pm on Saturday 14 September 1996
and arrived home at Fairlight at 3.00pm. This did not allow her enough time to murder Tegan and
dispose of Tegan’s body. Therefore, the Crown did not prove Keli had an opportunity to murder
Tegan34

This falls into the category of matters that have already been agitated in court. That Keli was
discharged at 2.00pm was rejected by the jury. Moreover, it was not even raised by Keli in the CCA,
which suggests Keli herself disavowed it (which she in fact did, as will be seen below). It was a gross
deception, and Exposed either knew this, or should have known it.

This claim was developed by Exposed in the following way. First, the hospital records were shown.
The relevant entry in the hospital record was an entry of a Registered Nurse Anne Hanlon (“RN
Hanlon) and it read as follows:
1400hrs NURSING: Spoke with [blanked out, but probably the name of the attending
medical officer] happy for pt to be discharged onto DMP [probably
Domiciliary Midwife Program]. Patient transferred to Ryde DMP. Postnatal
observations within normal limits. Uterus involuting appropriately. No
problems voiced. Tried contacting home birth midwife [blanked out] but
phone not in use. Pt anxious to go home. Script for antibiotics given.
Information for DMP midwives given to pt. Postnatal follow up explained.
Discharged home with baby 35

Viewers were shown a statement signed by RN Hanlon and dated 14 August 2003 in which the nurse
had stated “Keli Lane and her child were discharged around 14.00 hours”. Viewers were then shown
a subsequent statement by Hanlon signed in 2008 in which she stated that Keli was discharged
between 11.00am and 12.00pm 36.

34
Exposed, Episode 3, at 0.31.
35
Exposed, Episode 3, at 0.35.
36
Exposed, Episode 3, at 0.33.
 10

A Dr Stephen Chen was interviewed:
“If she did leave at 12.00 noon then nursing staff should have reported she left at 12.00 noon
I was the senior medial officer on the ward that day. [The time I think according to these
notes that Keli Lane was discharged from the hospital was] within an hour after 2” 37

This was mischievous reporting by Exposed for a number of reasons.

First, the only time that Keli herself has spoken about the time of her discharge from Auburn
Hospital was when she was interviewed by Detective Kehoe on 14 February 2001 and she said she
left “before 12.00 o’clock sometime”. For this reason alone, it is beyond question that Keli left
before midday.

Secondly, evidence was given by RN Hanlon at the trial. I have not seen the transcript of RN
Hanlon’s evidence. However, it can be safely assumed that she testified that her first statement
(2003) was in error and the second statement (2008) was correct. There can be no doubt that Keli’s
counsel was offered the opportunity of cross-examining RN Hanlon. It is clear that the jury must
have accepted RN Hanlon’s evidence and in particular that her second statement was correct and
that the first statement was in error. At least two important matters are tolerably clear:
1. Keli was not deprived of an opportunity to test RN Hanlon by cross-examination; and
2. cross-examination by Keli’s counsel was unable to establish Hanlon should be disbelieved
that the correct discharge time was 11.00am to 12.00pm.

Thirdly, there was other independent evidence, in particular from another patient on the ward,
which corroborated RN Hanlon. And again Keli’s counsel had the opportunity to cross-examine
about this evidence, and again the jury considered the cross-examination did not generate reason to
disbelieve RN Hanlon’s evidence.

Fourthly, Keli never complained to the CCA about anything in connection with the discharge time. If
there was real reason to doubt RN Hanlon’s evidence, or find that the discharge was at 2.00pm, it
would be expected that Keli would have said so in her appeal. But she said nothing 38.

Fifthly, self-evidently, it would be an extraordinary confluence of events if everything that was
written into RN Hanlon’s 2.00pm entry actually occurred at 2.00pm. To some considerable extent,
this corroborates RN Hanlon on her evidence that Keli’s discharge did not occur at 2.00pm.

Sixthly, for what it is worth, I am aware from having interviewed, examined and cross-examined
nurses that nursing notes about events in Hospital records are not always written up
contemporaneously, especially events which are as unremarkable as the discharge of a healthy

37
Exposed, Episode 3, at 0.34.
38
Lane v. R [2013] NSWCCA 317 (13/12/13).
 11

patient and baby. Furthermore, I have appeared in Coronial inquests and it would come as no
surprise to me that the first statement (2003) was written up by police in a perfunctory way,
probably by reference to the hospital notes alone without even interviewing RN Hanlon, and that it
was simply posted to her for her signature. It would come as no surprise to me that when later
properly interviewed by the DPP her memory would be refreshed and a more detailed statement
would be taken. This happens all the time. It does not necessarily bespeak anything sinister. It
would not be productive of injustice unless Keli was deprived of the opportunity to cross-examine
RN Hanlon. Keli was not deprived of her right to cross-examine RN Hanlon. There was no injustice.

It remains to deal with the statements of Dr Stephen Chen. I am unaware of whether he gave
evidence at the trial. At the risk of repetition, the first sentence of his “evidence” on Exposed was
this: “If she did leave at 12.00 noon then nursing staff should have reported she left at 12.00 noon”.
It can be accepted, in Exposed’s favour, that, notwithstanding Dr Chen was not a nurse, he was
nonetheless entitled to express an opinion about nursing practice. It can also be accepted that he
was correct, that is to say that a nurse should write up the discharge of a patient when it actually
happens. However, all that that established was that RN Hanlon departed from accepted standards
of nursing practice in the way in which she wrote up notes. It fell far short of establishing that RN
Hanlon was in fact not to be believed on her assertion that the discharge actually occurred before
midday.

The second sentence of Dr Chen’s “evidence” was to the effect that on the basis of the entry at
2.00pm, his opinion was that Keli was discharged “within an hour after 2”. Pausing there, generally
speaking, in a court case, a person is not allowed to give an opinion about what is meant by
something written by another person. Whilst it can be acknowledged that doctors may express
opinions about nursing practice, and it may be accepted that evidence and fact-finding can be loose
and discretionary matters, the law is slow to attach evidentiary weight to one person’s opinion
about what another person intended when the latter wrote a statement. As we have seen, RN
Hanlon did not intend by her entry in the notes to state that Keli left at 2.00pm. Dr Chen was simply
not in a position to gainsay RN Hanlon about this. In the result, nothing said by Dr Chen was reason
to doubt that Keli was discharged by 12.00 midday.

Furthermore, it is not known what information Dr Chen was provided with in advance of his
interview. It has to be wondered what he would say if he was fully acquainted with the matters set
out previously. It seems unlikely he would make those statements in the face of knowledge that Keli
herself and other independent witnesses had stated Keli left before 12.00 midday. Likewise, it has
to be wondered what Dr Chen would make of Keli’s failure to complain about the jury’s finding in the
CCA. Likewise, it has to be wondered what Dr Chen would make of RN Hanlon’s second statement
and the fact that she was found to be a truthful witness by the jury.

For all of these reasons, Exposed’s reporting of this matter was grossly inaccurate, possibly to the
point of being under-handed and deceptive.

 12

Claim 5 – The false swearing charges should not have been heard together with the murder
charge39

This was another matter agitated in the CCA, and dismissed. There was no novelty about it.

Exposed gained support for this claim from Dr Ruyters who said the following:
“The only case [the Crown] could make was one that they constructed around the lies that
Keli had told on the adoption papers ” 40
The argument seems to be that having the murder charges and false swearing charges heard
together meant that the “adoption papers”, and lies therein, were before the jury on the murder
charge. This was unfair on Keli, so far as I understand the argument goes, because it created the risk
that Keli would be convicted for murder merely on the basis she was a liar. Had the charges been
severed, so the argument seems to go, then the “adoption papers” would not have been available to
the jury in the murder charge.

It is unclear whether by the term “adoption papers” Dr Ruyters was referring to the Supreme Court
affidavits in support of the adoption application, or the broader group of documents including those
of Anglicare (Ms Fung), Centacare (Ms Townsend), DOCS and the various hospitals. It seems to me
she was referring to the Supreme Court affidavits and I will proceed on that assumption41.

The argument hangs entirely on the proposition that the adoption papers were only admissible into
evidence on the false swearing charges and therefore only came to the jury’s attention because the
false swearing charges were being heard with the murder charges. But I am at a loss as how this
could be so. In fact, the adoption papers (and lies therein) became admissible into evidence for a
number of purposes on the murder charges. They were admitted as background evidence, as
tendency evidence and as motive evidence 42.

Therefore, it seems highly unlikely that the adoption papers would have escaped the jury’s attention
even had the false swearing charges been severed from the murder charges. They would have been
admitted into evidence anyway.

Looking at it another way, Dr Ruyters’ comment that the Crown case was constructed around the
lies in the adoption papers (Supreme Court affidavits) was incorrect. To the extent that the Crown
case relied upon Keli’s lies, it was the copious lies contained not only in the Supreme Court affidavits,
but those also in the business records of each of the following:
1. Centacare;
2. Anglicare;

39
Exposed, Episode 3, at 0.18.
40
Ibid, at 0.19.
41
The assumption draws support from the fact that the affidavits were displayed on Exposed under Dr Ruyters’
voice over.
42
R v. Lane [2011] NSWCCA 157 (14/7/11).
 13

3. DOCS;
4. Balmain Hospital;
5. KGV Hospital;
6. Ryde Hospital;
7. Auburn Hospital;
8. Police;
There could be no question about the admissibility of the records of the above agencies as either
background evidence, or as motive evidence, or as tendency evidence under Part 3.6 of the Evidence
Act 1995 (NSW) (as was in fact ruled by Whealy J) or as evidence of consciousness of guilt (as ruled
by the CCA).

Even if all of the above was incorrect, Keli’s lawyers did not oppose the joinder of the false swearing
and murder charges, even when pointedly asked about their position by Whealy J shortly before the
trial commenced. Whealy J may well have been expecting Keli’s lawyers to oppose the joinder at
that stage. Ordinarily, it would be expected that an accused person would not want false swearing
charges heard together with a murder charge. The joinder of the false swearing charges creates a
risk that the accused might be convicted for murder on the mere basis s/he is a liar, something
which is obviously undesirable. But this begs some questions in Keli’s case: (1) was it an ordinary
case? and (2) to what extent was the jury actually influenced to convict Keli for murder merely
because she was a liar?

The answer to the first question was that this was not an ordinary case in the relevant sense. The
extent of Keli’s lying, either proved against her or admitted by her, was immense. I have never seen
anything like it in my time in the law. There was said to be 95 significant lies or half-truths told by
Keli to various people in respect of her pregnancies. There was not much point in Keli contesting the
proposition that she was something of a chronic liar and indeed it would have been counter-
productive. If it had been contested, Keli would have been made to look foolish to the jury. The
sheer immensity of the dishonesty effectively cornered Keli’s lawyers into conducting the defence
not on the basis that Keli was not a liar, but rather on the basis that she should not be convicted of
murder for telling lies. At least, that is how I interpret the conduct of Keli’s defence.

The fact that Keli’s lawyers did not oppose the joinder suggests, at least, that they advised her not to
oppose it and that she indeed instructed them accordingly. Absent incompetence on the lawyers’
part (about which there was no evidence or even suggestion), Keli was bound by her lawyers’
conduct of the case43. In effect, after having the benefit of legal advice, Keli elected not to oppose
the joinder. In that circumstance, it was disingenuous of both Keli and Exposed to mount this claim.

I turn now to the second question – to what extent, if at all, did the jury convict Keli merely because
she told lies. The answer is that it is most unlikely the jury did so, for the reasons which follow.

First, the trial judge warned the jury that it was impermissible to find Keli guilty of murder merely on
the basis that she was a liar.

43
R v. Birks (1990) 19 NSWLR 677.
 14

Secondly, Keli was specifically running a defence that she should not be convicted of murder for
being a liar. Although I have not seen all of the transcript, it is safe to assume that Keli’s counsel
would have reinforced the judge’s warning about not convicting Keli for being a liar, and that he
would have done so more than once. Having heard a specific warning from the judge, and repeated
warnings from Keli’s counsel, it is inconceivable that the jury would convict Keli of murder for merely
having told lies.

Thirdly, nothing said by the Crown detracted from the message being conveyed by the trial judge
and the defence. The “message” was all one way traffic.

Fourthly, the jurors had sworn an oath to determine the case in accordance with the evidence. To
conclude they decided Keli’s guilt on an impermissible basis would be to find that the jurors
betrayed their oath. Such a serious finding would require some serious evidence to that effect.
There is no evidence at all.

Fifthly, there was never any complaint by Keli in the CCA or the HCA, or indeed to Whealy J, about
the terms of the warning to the jury or to the effect that the jury convicted her on the basis of
merely being a liar 44.

There was an inherent and unusual difficulty in this case, entirely of Keli’s making. The difficult was
that no matter where the evidence turned it found lies and half-truths by Keli. The vast majority of
the lies went into evidence as, inter alia, the Crown’s (tendency) evidence to prove that Keli had a
tendency to dispose of pregnancies or babies (one way or another). Whealy J determined that the
evidence about the other pregnancies (apart from Tegan) could be admitted to prove such tendency.
Once that determination was made, and the records of those other births went into evidence, as
they had to, so the lies went in. It would have been unavoidable in the prosecution of Keli Lane to
somehow tiptoe around the lies. If the lies were to be avoided, then the prosecution would have to
have been aborted and indeed permanently stayed. It would self-evidently be an absurd outcome if
an accused could rely upon her own lies to thwart a prosecution.

Finally, Whealy J was interviewed on Exposed and said things that were capable of being construed
as criticisms of the defence counsel for not seeking to sever the false swearing charges from the
murder charge. Whealy J stated that Keli became exposed to a serious attack on her credibility
which otherwise would not have been available. The value of these comments was questionable.
His criticism was, so it appeared, referable to counsel’s failure to make an application for severance
before the trial commenced. However, at that stage, it seems doubtful that Whealy J would have
had accurate knowledge of the true extent of Keli’s lying, nor the likelihood that the lies would be
admitted into evidence irrespective of whether the charges were severed. Moreover, Whealy J
cannot have known what was in defence counsel’s brief, or what instructions defence counsel had
from Keli. In my respectful opinion, the enormity of Keli’s lying was good reason for defence counsel
to conduct the trial in the way he did. For these reasons, it seems to me it was inappropriate of

44
Lane v. R [2013] NSWCCA 317 (13/12/13).
 15

Whealy J to seek to gainsay defence counsel’s conduct of the case. For the reasons already set out,
the joinder of the charges did not expose Keli to a credibility attack that was otherwise unavailable.

Claim 6 – When Detective Kehoe called Keli in to Manly Police Station in February 2001 for an
interview, he was “casual” and made it out to be a “custody issue”. Thus, Keli did not understand
the seriousness of the interview and did not think she needed a lawyer present 45

As a general rule, a person needs a lawyer present at an interview with police to ensure that the
person does not admit to matters, or worse still confess, without being informed and educated
about his/her right to silence46. If Keli had made an admission or confession to Kehoe, then the
absence of a lawyer may have been significant. But Keli made no admission or confession. Instead,
she stoutly set out the defence she would maintain through until the end of her trial, and beyond:
that she had given baby Tegan to “Andrew”. It can be hardly said that anything relevantly prejudicial
was occasioned to Keli by virtue of the absence of a lawyer.

In connection with the absence of a lawyer, it might be wondered whether Keli would have been
better off to simply remain silent and say nothing to the police, which she was undoubtedly entitled
to do (whether she had a lawyer or not). If she had remained silent, then the somewhat fanciful
story about “Andrew Morris” and the lies associated with it, would not have emerged (at least at
that stage). I have given consideration to this. Ultimately, I consider it is not clear that the
maintenance of silence would have assisted Keli. It may have even caused additional harm to her
defence, for these reasons. First, the lies connected directly to the “Andrew Morris” account were
not the only lies that Keli had to overcome at her trial. The Crown would still have had at its disposal
the lies told to DOCS, Anglicare, Centacare and the various hospitals47. Keli would still have had the
appearance of a chronic liar. For this reason I doubt that the conduct of Keli’s defence would have
changed. That is to say, she would still have to defend herself not on the basis that she was not a
liar, but rather on the basis that she should not be convicted of murder because she is a liar.
Secondly, there exists a caveat on an accused’s right to silence. Where the accused is peculiarly in a
position to shed light on what is otherwise a mysterious, or inexplicable, factual scenario, then an
adverse inference may be drawn against the accused if s/he fails to give evidence48. If Keli did not
speak to the police, and give the “Andrew Morris” explanation, then s/he might have found herself
obliged to assist with solving the mystery at the trial by giving evidence. This would be a parlous
situation for Keli because, frankly, it was very unlikely she would survive cross-examination. If I am
right, it can be seen that it was better for Keli to proffer the “Andrew Morris” story at the police
station rather than offering it up at trial with a Crown prosecutor breathing down her neck.

For all of these reasons, the absence of a lawyer when Keli was interviewed by Detective Kehoe was
of no consequence.

Claim 7 – The searches for Andrew and Tegan were never completed by the police

45
Exposed, Episode 2, at 0.18ff, 0.24.
46
An admission is not the same as a confession.
47
I am proceeding on the assumption that the lies would be proved to be lies.
48
Weissensteiner v. R (1993) 178 CLR 217; (1993) HCA 65.
 16

Notwithstanding comments by Whealy J’s comments on Exposed to the effect that the police
searches “should have been completed” before the trial began (which can be accepted), the point for
the jury’s determination was whether they, the jurors, were satisfied that the searches were
sufficient to be probative of the question of whether Tegan was deceased. It was the sufficiency of
the searches that was the substantive question for the jury, irrespective of whether they had been
“completed”. The jury was satisfied about the searches. The CCA was satisfied, describing the police
investigation as, variously, “comprehensive”, “exemplary”, “meticulous”, “painstaking”, “very
careful”, “thorough”, “detailed”, “very extensive” and “exhaustive” 49. It is hard, if not impossible, to
imagine how the investigation could have been any better. Ex-detective Rhodes described the
searches as “massive” and “mammoth” when interviewed on Exposed 50. The CCA concluded that
the police investigation “virtually excluded any possibility that there existed a man named Andrew
Morris/Norris with whom [Keli] had had a ‘brief affair’” 51.

My impression of the police searches is that they were enormous. I have seen impressive searches
and investigations in my time in the law, but I cannot remember seeing anything like this. In any
event, by far the best judge of the quality of the police investigation was the Crown prosecutor.
When he was interviewed by Exposed, he was unequivocal that the investigation was thorough and
complete. His judgment, as the lawyer conducting the court case, was unassailable on this issue.
Police officers do not have any relevant expertise or qualifications to comment on the readiness of
court cases for trial. That is the very reason that the police employ expert lawyers – Crown
prosecutors – to conduct their serious prosecutions for them.

It appears that Keli and/or Exposed then proceeded to engage in some sleight of hand in attempting
to discredit the police investigation. Viewers were told that because the police did not start
investigating the Wisbeach apartments until 2003, they missed records of tenants and owners
before 20 December 1995 (such records having been destroyed before 2003). Keli then told
Exposed that she had started seeing Andrew in late September/early October 199552. The
implication was that the police search was deficient because it missed the period September to
November 1995. The difficulty with all of this, however, was that Keli previously told Kehoe that she
first met Andrew in December 199553. Either Keli was lying when she told Exposed it was
September/October, or her memory failed her. If it was a memory problem, it is trite to say that her
memory of events occurring in 1995 was better when interviewed by Kehoe in 2001 than it was
when interviewed by Exposed (presumably 2017/2018). Either way, the conclusion has to be that
Keli met Andrew for the first time in December 1995. This coincides with the start date of the police
searches for the existence of Andrew Morris/Norris at Wisbeach (20 December 1995). Therefore,
the police search of Wisbeach was not deficient as alleged. It is hard to believe that Exposed was not
alive to this flaw in its investigation.

The next stop in the search to discredit the police investigation was Dr Ruyters who stated:

49
Lane v R [2013] NSWCCA 317 (13/12/13).
50
Exposed, Episode 3, at 0.25.
51
Lane v. R [2013] NSWCCA 317 (13/12/13) at paragraph 281.
52
Exposed, Episode 2, at 0.28.
53
Lane v. R [2013] NSWCCA 317 (13/12/13), paragraph 214 at Q 53.
 17

“Then there’s a witness who remembered seeing mail that was addressed to
an Andrew Norris” 54
Neither Dr Ruyters nor Exposed mentioned that this witness, one Peter Clark, had given at least two,
possibly three, inconsistent versions of his evidence and his credibility was destroyed when cross-
examined as a hostile witness55. Dr Ruyters and Exposed knew this, or should have known it. The
reporting was either biased or dishonest.

Viewers were then told that “confidential police documents on the USBs reveal multiple residents of
Wisbeach were never interviewed by detectives”56. Despite referring to “multiple residents”, in fact
only one such resident was identified. He was a Mr Daryl Henson (hereafter “Henson”). Henson was
located in New Zealand via a Facebook search. Contact was made and what appeared to be a Skype
interview was conducted with Henson. A photograph of Keli was held up by the interviewer and
Henson immediately identified Keli as a person he “definitely” remembered seeing at Wisbeach
some 22 (or 23) years before 57.

An interview was arranged in New Zealand. Henson described how he was working on his car in the
car park underneath the Wisbeach apartment block and “this lady” would exit the car park. It would
be quite late, sometimes 1.00am. He saw her so many times he thought she lived there. She
probably could not see him in the dark. He was confident “100%” that he saw her. But despite
Henson’s confidence, there were some formidable problems with what he said. In particular, it is
hard to believe that he would be able to recognise a person in 2018 who was a stranger when he last
saw her in darkness in 1995/96. It seems even more of a stretch that he was “100%” confident of his
identification, and even more that he would be able to recognise the person on a Skype image.

There was also an almost insurmountable difficulty with Henson’s evidence. Keli herself had stated
to Detective Kehoe (in 2001) that when she stayed with “Andrew” she would attend water polo
training at Dawn Fraser Pool at Balmain the morning after. Thus, apparently, she never departed
Wisbeach late at night. Thus, the woman seen by Henson was not Keli. Henson’s evidence was of
no assistance whatsoever. Exposed ought to have known this.

From this point onwards, Exposed went even further off the rails. Dr Ruyters was interviewed again
and contended that the discovery of a witness who saw Keli at Wisbeach would be “very significant”
or “very compelling”. One of the Exposed reporters joined in the hyperbole. She asserted that if
somebody saw Keli at Wisbeach “that would change everything” 58. All of this was incorrect.
Evidence that Keli went to Wisbeach was evidence of that and no more. It did not, for example,
corroborate Keli on visiting an “Andrew” at Wisbeach. Moreover, it fell way short of corroborating
Keli’s defence – that she handed Tegan over to Andrew Morris/Norris on 14 September 1996 at
Auburn Hospital. All that it was capable of doing was erasing one of Keli’s lies – one of 95 lies. The
other 94 lies remained.

54
Exposed, Episode 2, at 0.31
55
Lane v. R [2013] NSWCCA 317 at paragraphs 144 to 169.
56
The “USBs” were a collection of police documents supplied to Exposed by a person who was unidentified.
57
Exposed, Episode 2, at 0.32.
58
Ibid.
 18

The next attempt to discredit the police investigation, in particular the searches, was the revelation
that the police did not obtain three months of Keli’s phone records (December 1996 to February
1997) which might have revealed calls being placed to “Andrew Morris/Norris”, and thus revealed
Andrew’s phone number59. This allegation suffered from many of the flaws I have already discussed.
Suffice to say that the police investigation (including searches) was massive. It was a long bow, if not
fanciful, to suggest that three months of phone records might unlock what eight years of intensive
police investigation failed to reveal.

The allegation about missing phone records also gives rise to this question: why didn’t Keli obtain
these records herself? After all, they were her records. It was stated by Exposed that the phone
records have since been destroyed, although viewers were not told when they were destroyed. For
all we know they had been destroyed before Keli first raised Andrew’s name in February 2001
(making it impossible for police to have found the records). However, I am content to proceed on
the assumption, in Exposed’s favour, that the records were still available at the time of the inquest in
2005. Turning to that inquest, the counsel who represented Keli was Mr Hamill SC. He was
interviewed on Exposed and appeared bemused on camera to learn about this lacuna in the phone
records. This is baffling because it was visible and obvious in the Coronial brief in 2005 (the relevant
page of the Coronial brief was shown on Exposed). Hamill SC must have had that brief and it is fair
to assume he read it. This brings us back to Keli. It is clear that Keli (and Hamill SC) were on notice
of the gap in the phone records in 2005. Although there was no obligation upon Keli to prove the
whereabouts of Andrew/Tegan for the purely legal purpose of defending herself in criminal
proceedings, it has to be wondered why Keli herself felt no motherly compunction to start searching
for Tegan, and start searching at least as early as 2005 (and probably well before) when she came on
notice that Tegan’s whereabouts was an issue. And it has to be suspected that phone records of
calls to Andrew might have been one of her first ports of call if she was genuinely interested in
finding Tegan. Furthermore, she was actually on notice that her phone records were an issue back in
2001 when she was questioned by Kehoe and said to him she would “start looking tonight” for
Andrew’s mobile phone number. And then she told him it was “just a matter of going through
things”. It did not sound like it would be a difficult search. It might be inferred that her omission to
get those records herself at least in 2005 (or earlier) was an indication that she had no genuine
desire to locate Andrew/Tegan at all. The further inference might be that Andrew never existed and
Tegan ceased to exist before 1999.

In all of my research, I have found no evidence of Keli searching for Tegan, save for two very brief
messages advertising in 2004 for “Andrew Norris” on a web site catering for long lost school friends
searching for each other. Even allowing that Keli may have had limited resources, this tends to make
it not believable that Keli had any real interest in finding Tegan. This tends to reinforce that Tegan
does not exist.

The next attempt to discredit the police search was the criticism that no “comfit” was ever drawn60.
A “comfit” is an identikit picture of a person, usually used to identify and locate suspects in criminal
investigations. One can only suppose that a comfit was never undertaken because it never occurred
to police (because Keli herself was the suspect). However, in fairness, there was no reason why a
comfit ought not to have been drawn. If so, it might qualify as a shortcoming in the investigation.
But the notion that a comfit would have achieved anything when the massive searches otherwise

59
Exposed, Episode 2, at 0.49ff.
60
Exposed, Episode 2, at 0.57.
 19

undertaken did not reveal anything seems far-fetched. In my opinion, the absence of a comfit was
an insignificant blip in what was in truth a meticulous and enormous search effort.

Furthermore, importantly, there was an over-arching misconception on the part of Exposed in
assuming, and leading viewers to assume, that the police search evidence was the only evidence
tendered by the Crown to prove Tegan was deceased. I have not seen, nor would I expect to see,
any suggestion by the Crown that the search evidence of its own was capable of proving Tegan was
deceased. The search evidence was tendered to prove no more than that the police had made a
genuine effort to find Tegan alive, and that they had not found her alive. It could not, of itself, prove
she was deceased.

Finally, in any event, even if the police investigation was less than optimal, this was not something
that caused prejudice to Keli. As the CCA stated:
“. . . it is difficult to see what prejudice was caused to [Keli] by the nature of the investigation.
Every lead [Keli] gave to Detective Gaut was followed up. Potential witnesses in her favour,
such as Lisa Andreatta, were located and questioned. As it happens, the evidence Ms
Andreatta gave did not assist [Keli] at all. But it can hardly be said that a substandard
investigation caused prejudice to [Keli]. It was evidence that the investigation yielded that
caused prejudice, but it was not in any way unfair prejudice” 61 [emphasis added]

The attempt by Exposed to discredit the police search was, essentially, a meaningless frolic.

Claim 8 – Keli’s senior counsel, Mr Chapple SC, was only given the brief three weeks before the
trial started, the inference being that Keli was unfairly prejudiced62

Mr Hamill SC was again interviewed and asserted on camera that three weeks did not sound like
enough time to prepare for the trial, the impression being created that three weeks was in fact not
enough time. I disagree for various reasons. Most importantly, the best judge of whether Chapple
SC had enough time to prepare was Chapple SC, not Hamill SC. I am unaware of whether Chapple SC
asked for an adjournment for extra time to prepare. If he had have asked for an adjournment, I have
no doubt that Whealy J would have allowed him some more time. As it transpired, numerous short
adjournments were granted to Chapple SC later in the trial. It is almost inconceivable that an
adjournment of some form would have been denied at the start of the trial. Moreover, in the CCA,
there was no complaint from Keli, or her new lawyers, Terracini SC and Trevallion, that Chapple SC
had been forced on to trial in a way which prejudiced Keli. It is almost unthinkable that that would
have happened.

It has been suggested that Keli may have been at least partly to blame for the late briefing of
Chapple SC because she had been holding out trying to get somebody else. This is a common
enough scenario, but I have no way of verifying this in Keli’s case63.

61
Lane v. R [2013] NSWCCA 317 (13/12/13) at paragraph 290.
62
Exposed, Episode 3, at 0.23.
63
Chin, Nice Girl, p. 267. .
 20

Claim 9 – One of the motives alleged by the Crown – that Keli did not want her water polo career
interrupted by having responsibility for a baby – was false. Keli was never realistically a candidate
for selection for the Australian water polo team for the 2000 Sydney Olympic Games.

Exposed broadcast an interview with a water polo coach who stated that Keli was not a candidate for
national selection. However, the interview raised more questions than it answered. In particular, it
begged the question of whether Keli’s poor prospects of selection were ever communicated to her.
It appears not. Chin wrote that in late 1997 Keli asked the Australian College of Physical Education if
she could take a year and a half away from studies to concentrate on making the Australian team64.
Thus, whatever the coach/es may have thought, Keli appears to have remained as determined as
ever to make the national team.

Moreover, the Crown’s case on motive was not as narrow as simply alleging that water polo was the
motive for the crime. The Crown’s case alleged that there were several motives. The Crown’s case
on motive was, in its broadest sense, a case that Keli could, or would, not take on the responsibility
of having and caring for a baby. To some extent, Keli made out the Crown’s case out of her own
mouth when she told Kehoe in 2001 that she was unable to look after a baby.

Furthermore, it was unnecessary for the Crown to prove motive65. That the Crown did prove motive
was a welcome addition to its case, but its absence would have been unlikely to result in a different
outcome in the circumstances of this case. The evidence in favour of guilt was otherwise ample. It
was not a borderline case.

Claim 10 – There was no evidence, or insufficient evidence, that Keli murdered Tegan 66

These are mantras that supporters of Keli have chanted since her conviction. They are not new.
They are catchy hook-lines. They have superficial attraction. But they are quite inaccurate,
sometimes to the point of being complete untruths.

The “no evidence” point is nonsense. There was so much evidence of Keli’s guilt that it took four
months of trial time to present it to the jury. For four months, the jury did nothing but see, hear and
evaluate the Crown’s evidence of guilt. The Crown’s opening took three days alone. The CCA would
later describe the guilty verdict as “amply open to the jury”67.

Dr Ruyters was interviewed on Exposed and stated:

64
Chin, Nice Girl, p. 88.
65
Pointer v. United States [1894] USSC 38; 151 US 396 at p.143; De Gruchy v. R (2002) 211 CLR 85.
66
Exposed, , Episode 3, at 0.18.
67
Lane v. R [2013] NSWCCA 317 (13/12/13 at paragraph 291.
 21

“There’s no evidence of a death, no evidence of a body, no evidence of a homicide, there’s no

witnesses, there’s no confession” 68
These statements were incorrect. There was ample evidence of death and homicide. It was not
direct evidence. It was inferential and circumstantial, but the courts have repeatedly stated that
circumstantial evidence is every bit as powerful as direct evidence69. It is simply not to the point to
state that there was no direct evidence. The absence of direct evidence mattered not one bit to the
soundness of the conviction70.

Exposed claimed to have obtained an “internal brief questioning whether the circumstantial evidence
was enough to charge Keli Lane with murder”71. This document was not shown. A document, which
may or may not have been the same document, was then shown to Ms Rhodes. It appeared to be
dated 2008, two years before the trial commenced. Ms Rhodes spoke these words, appearing to
read from the 2008 document:

“the evidence does not establish a motive beyond reasonable doubt”

The value of this statement was questionable, to say the least, given that the prosecution did not
have to prove motive.

There was then this exchange between Ms Rhodes and the reporter:
Rhodes: By November 2008 to be completely honest, we had not reached the
standard of beyond reasonable doubt, um so we weren’t in a
position to charge Keli Lane at that point so we sought legal advice
Q.: . . . it hadn’t . . . met the bar for murder.
Rhodes: It hadn’t met the standard of proof required
Q.: After, gosh, two years investigation in homicide, several years with
Manly, a Coronial inquest
Rhodes: It still wasn’t there. So we wanted, I wanted, to know whether or
not it would ever get there, or we were wasting our time and should
we, um, stop, and that was why we sent it to the DPP for a legal
advising 72

A powerful impression was created by these exchanges, assisted by the deeply grave tone of the
reporter’s voice, to the effect that the Crown had insufficient evidence to prove murder. However,
everything said was referable to the state of the evidence in 2008. This had no relevance to the
strength of the Crown case by the time the trial started in 2010. By 2010, the evidence was plainly

68
Exposed, Episode 3, at 0.18.
69
Taylor Weaver and Donovan 21 Cr App R 20 per Hewart LCJ at 21; De Gruchy v. R (2002) 211 CLR 85, per
Kirby J at paragraph 48, citing Commonwealth v. Harman 4 Pa St 269 at page 272.
70
It might also be noted that at the end of the Crown’s case, Keli made a no-case application. That is, she asked the judge
to direct an acquittal because the Crown’s case was insufficient to go to the jury. The trial judge refused Keli’s application.
The trial judge determined that there was sufficient evidence to go to the jury and that, properly instructed, it was open to
the jury to convict Keli.
71
Exposed, Episode 3, at 0.10.
72
Exposed, Episode 3, at 0.10.
 22

sufficient, given that the jury convicted Keli, and the conviction was confirmed by unanimous
decision of the CCA.

Claim 11 – The Crown prosecutor unfairly prejudiced Keli’s defence by suggesting in his opening
that Keli may have disposed of Tegan’s body at the Sydney Olympic site at Homebush 73

This matter was in the ancient history category. It has been trawled over by commentators on this
case since the day it happened.

True it is that the Crown prosecutor introduced into his opening speech to the jury comments to the
effect that Tegan may have been dumped at the Olympic site. He did so in the absence of evidence
to that effect. This was impermissible because it created the risk that the jury would take into
account something about which there was no evidence. Left at that, it was capable of causing unfair
prejudice to Keli. However, it was not left at that. It was cured. The next day the Crown prosecutor
withdrew his comments to the jury. He did so in these unequivocal terms:
“Good morning ladies and gentlemen, I would like to begin by just referring to several of the
things that I said yesterday. The first thing I would like to do is I suppose by way of a type of
correction. Yesterday I said to you that we don’t know how or where [Keli] killed Tegan, or
how she disposed of the body. There is no evidence at all as to what happened to Tegan or
[Keli] for that matter during those three hours plus between when she left the hospital before
midday, to use your own words and when she arrived at her parents’ house at Fairlight at
3pm. I think it fair to say, ladies and gentlemen, that it would not be appropriate for you to
speculate about what might have happened during that time. I ought not to have speculated
about the Olympic site because there is no evidence of the Olympic site having been
searched. I would like to correct what I said yesterday in that regard.”

Keli would later complain to the CCA that this was insufficient to cure the problem and that the jury
ought to have been discharged, especially since the trial was only in its second day. The CCA
considered Keli’s complaint and then rejected it. The CCA observed, in its unanimous judgment, that
Keli’s counsel appeared to have elected to take forensic advantage of the Crown prosecutor’s error
to highlight Keli’s own argument that the Crown’s case was entirely speculative. That is, Keli elected
to try to turn the Crown prosecutor’s comments around to use them to her own forensic, tactical,
advantage. That being so, “no unfairness attended the process”74. The CCA stated that that was
sufficient to dispose of Keli’s complaint. That may be so. But it does not mean there were not other
reasons for rejection of Keli’s complaint. One that springs to mind is that the jury was fresh from
having sworn its oath to decide the matter solely by reference to the evidence. Having heard both
counsel submit pointedly that the Homebush disposal was not part of the evidence, it was unlikely
they would take it into account in direct avoidance of their recently sworn oath.

The complaint by Exposed about the Crown prosecutor’s comments was completely without merit,
and this should have been known.


73
Exposed, Episode 3, at 0.26.
74
Lane v. R [2013] NSWCCA 317 at paragraph 142.
 23

Claim 12 – The trial was unfair because the Crown continued to bombard the defence with
material as the trial progressed

This was raised at the trial. Whealy J granted adjournments for the defence to consider and prepare
their responses to material belatedly served by the Crown. Keli did not complain that this caused
her to have an unfair trial when she appealed to the CCA in 2013. For these reasons alone, this claim
ought to be rejected.

Closer analysis reveals the claim may be spurious in any event. Viewers were not told precisely what
material was served belatedly by the Crown, or what was its significance. Even assuming it was
significant, the indisputable fact was that Chapple SC was granted an adjournment or adjournments
to have time to deal with the material. This was not an unremarkable sequence of events in a trial.
To be sure, it was not ideal. In a perfect world, the Crown would have served all of the material
upon which it proposed to rely in advance of the trial. However, it happens from time to time that
material is belatedly served. The usual remedy for the accused is the granting of an adjournment to
see if the accused can fairly deal with it. If that proves impossible, then, and only then, might the
question arise of aborting the trial. What happened here, obviously enough, was that Chapple SC
considered himself able to deal with the late served material. The best judge of whether the
material could be dealt with was undoubtedly Chapple SC himself.

There was no unfair prejudice to Keli arising out of the Crown’s late service of material.

Conclusion

I respectfully submit that further examination of the conviction and guilt of Keli Lane would be an
extravagant waste of public funds in the circumstances set out and in the circumstance that an
enormous amount of time and effort has already been expended. The material advanced by the
television programme, Exposed, offers no new evidence or insight. It merely recycles arguments and
evidence that has been previously considered and rejected, or alternatively has been disavowed by
Keli herself. If the matter were referred to a judge of the Supreme Court, it would be a waste of the
judge’s valuable time.

12 December 2018

SIMON DAVIS