R v Keli LANE [No 10]

[2010] NSWSC 1537

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Keli LANE [No 10] [2010] NSWSC 1537

JURISDICTION:

FILE NUMBER(S):
2009/256171

HEARING DATE(S):
09/08/2010 - 13/21/2010

JUDGMENT DATE:
28 September 2010

PARTIES:
Regina (Crown)
Keli LANE (Accused)

JUDGMENT OF:
Whealy J     

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:

COUNSEL:
M Tedeschi QC / H Baker (Crown)
K Chapple SC / S Sloane (Accused)

SOLICITORS:
Director of Public Prosecutions (Crown)
K Laurie, Archbold Legal Solutions (Accused)

CATCHWORDS:

LEGISLATION CITED:

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

FRIDAY 28 SEPTEMBER 2010

2009/256171     REGINA v Keli LANE

JUDGMENT – On the admissibility of evidence – see p 1763 of transcript

1. HIS HONOUR:  The Crown is correct in its submission that section 135 can apply at the behest of the Crown if evidence is unfairly prejudicial to the Crown or if it's misleading or confusing or if it may cause or result in an undue waste of time.  The question of course is not whether those situations arise simpliciter, but whether the probative value of the evidence is substantially outweighed by the danger that those things might occur.  I accept that as a general proposition.  Mr Chapple really does not argue to the contrary.

2. It is my continued view, stated earlier in this trial, that where there are listening devices designed to pick up everything that is said by an accused person, my general approach is that the whole of the material should go in unless there is clear unfairness to one party or the other or where the probative value is outweighed, as suggested in the section.  Of course, the situation of the Crown and the accused are slightly different in such an exercise.  The fact that the accused, apparently, from what I am told, is crying at the outset of this particular conversation and, secondly, has continued to cry while there is a discussion about where the child's comforter has gone, in themselves do not seem to be matters of probative value.

3. But what is of probative value, I think, is the degree to which the accused was upset throughout the conversation.  The Crown wanted, in fact, to demonstrate that she was upset by the prospect of publicity that would expose her in front of her family and friends to the very type of scrutiny and sensationalism that has no doubt attended this matter since shortly after the inquest, indeed right up to the present time.  The Crown wants to take advantage of that evidence in the material, and is entitled to take advantage of it to support the point it wants to make that the accused has nevertheless adhered to her original explanation.

4. The accused's legal representatives also want to place reliance on this material but for a slightly different purpose.  So it seems to me that both the Crown and the defence argue that the general expressions of emotion and concern derived from the listening devices and the telephone conversations are relevant in the trial, and I accept that is the situation.  So I do not accept that the probative value of this evidence, for the reasons the defence want it, is to any degree outweighed by any of the matters in section 135.  I do not see that it is unfairly prejudicial to the Crown.  It may in a sense be prejudicial to the Crown's general argument.  The Crown I think is conscious of that and that is why really the objection has been taken, although the argument is put on a slightly different basis by the Crown.  But the Crown perceives it to be prejudicial to its case, and maybe it is, but that is not the test under section 135.

5. I do not think the evidence is going to cause a particular waste of time.  I do not think it is misleading or confusing.  I have not heard the listening device and I do not know to what extent it might be difficult to hear and the like.  But I am not prepared to rule it out on that basis either, so I will allow it.

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LAST UPDATED:
22 February 2011