Disclosure in the
Keli Lane case
Our fight for the secret recordings
Why won’t the NSW Police Force disclose hundreds of secret Keli Lane recordings? and why is this important?
Despite our numerous attempts, NSW Police have refused to provide access to hundreds of secret recordings of intercepted telephone and listening device conversations they obtained during the Keli Lane Investigation. We believe the recordings contain material that could assist in Keli Lane’s wrongful conviction claim. An application has been made to the NSW Civil and Administrative Tribunal for a review of the decision to refuse access.
There continues to be a strong public interest in the Keli Lane case, so we have decided to share our application documents and arguments through this page because we believe in an open and transparent criminal justice system.
Transparency and openness are crucial to public confidence in criminal justice institutions. Police and prosecutors across Australia have ethical and legal obligations to disclose all relevant material to the defence as part of a duty to conduct a fair case, and this includes all relevant information that might reasonably be expected to help the defence. The prosecution has to be pro-active in meeting its disclosure obligations - it’s not up to the defence to ask for information that it is entitled to have.
The problem is that it is impossible to know whether – or if – those obligations have been met without scrutinising the material in the first place. There isn’t any system to monitor how, or what, evidence is disclosed in Australia, so defendants must rely on how well – or if - police and prosecutors comply with their obligations to disclose. This isn’t a situation that inspires confidence in the administration of criminal justice, or in the reality of an open justice system.
Jarryd Bartle, Gregory Stratton & Michele Ruyters have previously talked about the reasons why police and prosecution might not always disclose evidence in criminal trials. The problem of non-disclosure has also been identified in the UK after a series of collapsed trials.
NSW police obtained telephone interception warrants in 2003 and 2008 to intercept Keli Lane’s home and mobile phones and a listening device warrant in 2004 for Lane’s home. The telephone interception warrants were obtained under federal legislation - the Telecommunications (Interception and Access) Act 1979 (Cth) and the listening device warrant was obtained under state legislation - Listening Devices Act 1984 (NSW) (since repealed).
Now it appears that the prosecution only disclosed a fraction of the recordings the police obtained under each warrant and the trial judge who presided over Keli’s trial has called for an investigation, describing the number of missing recordings as ‘extraordinary’.
Our curiosity about the missing recordings piqued early in our investigation because the trial brief included extensive telephone logs of the mobile phone numbers held by Keli’s friends but didn’t include any of Keli’s own mobile phone records. Instead, the prosecution included a spreadsheet that had been prepared by NSW Police with selected records from Keli’s mobile phone history.
We then started to examine the recordings in more detail.
Warrant A (2003-2004)
NSW Police first monitored Keli’s landline between 20 December 2003 to 29 January 2004. The prosecution disclosed 53 audio recordings and transcripts to the defence and included an itemised list of the recordings that gave each recording its own identifying number e.g. 1 C0XXXX-00 00407 14:13:54 17-01-2004.
The recordings weren’t listed in chronological order. When we reordered them chronologically in a spreadsheet, the identifying numbers fall into a pattern where in the example above:
· ‘1’ is the number of the recording as it appeared in the itemised list;
· ‘C0XXXX’ is the warrant number;
· 00407 is the individual recording number and;
· the remaining numbers are the date and time.
The last recorded conversation is numbered: 45 C0XXXX-00 00688 17:35:09 29-01-2004. This 00688 recording was made on the last day of the warrant. Assuming the first recording began at 00001, we assumed there must be at least 688 recordings.
Warrants B & C (2008)
Later in 2008, NSW Police monitored Keli’s land line again from 23 July to approximately 11 September or later (Warrant B) and her mobile phone from 25 July to approximately 16 September or later. (Warrant C). We haven’t been able to confirm the dates for the 2008 warrants as we’ve been refused copies of the warrants.
We applied the same logic to these recordings and found that only 7 recordings from a potential 352 recordings had been disclosed to the defence under the Warrant B and a remarkably small number of 13 voice calls and 11 SMS messages were disclosed to the defence from a potential 857 recordings and SMS.
Late last year we obtained a copy of a statement made on the 6th of October 2010 by one of the lead police investigators. It appears to have disclosed to the defence for the first time that police obtained additional recordings under the 2008 intercept warrants.
To put the date of the statement into perspective: the trial began on the 9th of August 2010 and ran until the 13th of December 2010. The prosecution began its closing address on the 22nd of November 2010, three and half months after the start of the trial. So this statement wasn’t made or provided to the defence until almost two months after the trial began, and well after the half way point of the trial.
In 2017, we applied under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to all audio recordings as well as the transcripts of these recordings obtained under the 2008 warrants.
Our application was refused in full under Schedule 1 Clause 7(c) of the GIPA Act on the basis:
· of a conclusive presumption that there was an overriding public interest against disclosure of information as this was a document created by the State Crime Command of NSW Police Force in the exercise of its functions relating to intelligence; and
· that releasing the information would be in breach of section 63(1) of the Telecommunications (Interception and Access) Act 1979 (Cth), which prohibits a person from dealing in intercepted information.
In 2018, we made a fresh application to access the specific numbered recordings that we believed had not been disclosed. This request was denied on the basis that the information we asked for had been addressed in our 2017 application.
Internal & External Reviews
We applied for an internal review and requested confirmation that the recordings were still available. This request was unsuccessful on the basis that there was no requirement for the agency to confirm the existence of the recordings.
We then asked the Information Privacy Commissioner (IPC) in NSW for an external review. The IPC review found that the NSW Police Force (NSWPF) hadn’t made the internal review decision within the review period and recommended that the NSWPF make a new decision, which they agreed to do on the 3rd of December 2018.
On the 4th of December 2018, NSWPF refused the information in full on the basis that telephone interception material was heavily protected information and could not be released, relying again on Schedule 1, Clause 7(c) of the GIPA Act.
Michele Ruyters then applied to the NSW Civil and Administrative Tribunal (NCAT) for a review and, after a case conference on the 12th of February 2019, NSWPF was ordered to reconsider their decision.
On the 4th of April 2019, the Crown Solicitor’s Office advised that the Commissioner could not make a new or varied decision because such a decision couldn’t lawfully be made under the enabling legislation.
The Commissioner argued that:
- The Telecommunications (Interception and Access) Act 1979 (Cth) sections 63(1) and 133(1) made it unlawful for anyone to communicate information obtained by intercepting a telecommunication or stored communication and any exceptions did not apply here;
- These provisions of the Commonwealth Act were inconsistent with the legally enforceable right of applicants under NSW GIPA Act; and
- Section 109 of the Constitution applied to resolve the inconsistency in favour of the Telecommunications (Interception and Access) Act 1979 (Cth), such as to prevent the disclosure of the relevant information.
case conference - 15th of may, 2019
At the case conference on the 15th of May (see Order here), we agreed to disagree with the Commissioner of NSW Police. We were invited to withdraw our application on the 4th of April 2019 (see above). We made it clear that we intended to continue with our proceeding. Now, the Commissioner has indicated an intention to apply for an order dismissing our proceedings for 'want of jurisdiction'.
Where does that leave us?
If the application to dismiss goes ahead, the Commissioner has until the 5th of June 2019 to file submissions to support why they believe the proceedings should be dismissed for lack of jurisdiction. We then have 3 weeks to reply with our submissions.
Assuming we're successful - two years after we first applied for access to the missing recordings - we will finally be able to debate the public interest in favour of disclosure versus any public interest against disclosure.
Our director Michele Ruyters says: “We can only repeat: Keli Lane was convicted almost 9 years ago. The police investigation ended. Keli is still in prison. So what's really at stake here? Why can't Keli have access to the recordings that the police and prosecution failed to disclose to the defence before and during her trial? Is there something in those recordings that could possibly explain these extraordinary efforts of NSW Police to deny access.”