What the jury didn't hear: judge thought case 'weak'

JUSTICE Anthony Whealy will preside over no more trials after he sentences Keli Lane.

By InvestSMART · 19 Dec 2010

By InvestSMART ·
19 Dec 2010

Comments

JUSTICE Anthony Whealy will preside over no more trials after he sentences Keli Lane.

Set to take up an appointment next year as a judge of appeal, his final task as a Supreme Court trial judge will be to sentence Lane for the murder of her baby Tegan.

An affable man with a quick wit, Justice Whealy has overseen many complex cases, including the marathon trial of five men who plotted a terrorist attack. But he warned that in Lane's trial, "more than most, it is necessary to take great care to ensure a miscarriage of justice does not occur".

The judge's views on the "difficult and unusual" case - expressed in the absence of the jury - can be revealed after the verdict.

In previously suppressed judgments, delivered as he determined how - and even if - the trial would proceed, he described aspects of the Crown case as "weak", "feather-light" and "unrealistic".

A month before the jury began deliberating, he threw out a key part of the prosecution case. Emphasising the need to ensure Lane had a fair trial, he ruled the Crown could not use her alleged lies about what happened to Tegan as evidence pointing to her guilt.

"There are many possible explanations available to explain the accused's behaviour, not the least of which is her oft-stated concern that she would lose her family, her boyfriend, her child and her job once it was disclosed she had given a child away," he said.

The ruling raised defence hopes as they prepared to argue there was insufficient evidence to prove the murder charge, and that the jury should be directed to acquit Lane. But the Crown appealed, and the Court of Criminal Appeal overturned Justice Whealy's ruling on November 16, hours before defence barrister Keith Chapple, SC, made the application.

Justice Whealy was bound by legal principles in refusing the application, repeatedly saying it was the jurors, not the judge, who resolved the facts of the case.

"Where there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberation, and that evidence is capable of affording a verdict of guilty, the matter must be left for the jury for its decision," he said.

"It is not the task of the court to form any view as to whether a conviction would be unreasonable having regard to the evidence. It is not a matter for the trial judge, whatever may be his views."

Justice Whealy agreed with the defence that elements of the Crown case, including evidence regarding Lane's alleged motive and opportunity to kill, were "rather weak" but said it was left to the jury to decide.

Go to Google News, then click "Follow" button to add us.

Share this article and show your support

Frequently Asked Questions about this Article…

Who is Justice Anthony Whealy and what was his role in the Keli Lane trial?

Justice Anthony Whealy was the trial judge in the Keli Lane matter. The article notes he will preside no more over trials as a Supreme Court trial judge because his final task will be to sentence Lane for the murder of her baby Tegan before taking up an appointment next year as a judge of appeal.

What did Justice Whealy say about the strength of the Crown's case in the Keli Lane trial?

In previously suppressed judgments revealed after the verdict, Justice Whealy described parts of the Crown case as weak, feather-light and unrealistic. He agreed with the defence that elements such as alleged motive and opportunity were "rather weak," though he said those matters were for the jury to decide.

Why did Justice Whealy rule that the prosecution could not use Keli Lane's alleged lies as evidence of guilt?

A month before the jury began deliberating, Justice Whealy excluded the Crown using Lane's alleged lies to point to guilt to protect the fairness of the trial. He said there are many possible explanations for the accused's behaviour, including her expressed fear of losing family, boyfriend, child and job if it became known she had given a child away.

What happened after Justice Whealy excluded that part of the prosecution case?

The Crown appealed Justice Whealy's ruling. The Court of Criminal Appeal overturned his decision on November 16, hours before the defence made its application to the jury for a direction to acquit.

Can a judge direct an acquittal if the evidence seems weak?

Justice Whealy emphasised legal principles that limit a judge's power to direct acquittal. He said that where there is evidence— even if tenuous, weak or vague—capable of supporting a verdict of guilty, the matter must be left for the jury to decide. It is the jury's role to resolve the facts, not the trial judge's.

What are 'suppressed judgments' and when can a judge's private views be revealed?

The article explains that some of Justice Whealy's judgments were previously suppressed while he decided how and whether the trial should proceed. Those views, which were expressed in the absence of the jury, can be revealed after the verdict.

What does it mean when the judge calls parts of the evidence 'feather-light' or 'unrealistic'?

Those descriptors indicate the judge found aspects of the Crown's case to lack persuasive weight or to be implausible. However, Justice Whealy also stressed that the existence of any evidence that could lead a jury to convict means the jury must consider it; only they can resolve credibility and factual questions.

What is the next step in the case and why is it significant for the judge?

The next step is sentencing Keli Lane for the murder of her baby Tegan. It is significant because, according to the article, this sentencing will be Justice Whealy's final task as a Supreme Court trial judge before he moves to his appointment as a judge of appeal.