R v Keli Lane [No 14]

[2010] NSWSC 1541

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Keli LANE [No 14] [2010] NSWSC 1541

JURISDICTION:

FILE NUMBER(S):
2009/256171

HEARING DATE(S):
09/08/2010 - 13/12/2010

JUDGMENT DATE:
8 November 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:
Evidence Act 1995 s 137

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:

JUDGMENT:

- 3 -

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

WHEALY J

MONDAY 8 NOVEMBER 2010

2009/256171     REGINA v Keli LANE

JUDGMENT: Re admissibility of evidence – see p 2639 of transcript

1. HIS HONOUR: The determination of the issue in relation to this question essentially turns upon the proper application of section 137 of the Evidence Act.  That section is well-known to the parties here and it is in the following terms:

   “In a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

2. There is no need for me, in coming to a decision on this point, to go to the various authorities which examine the section.  It is fair to say, however, that it does not involve the exercise of a discretion.  The court is bound to refuse to admit the evidence if it comes to the view that its probative value is outweighed by the danger of unfair prejudice.

3. As Mr Tedeschi QC rightly points out, it is not just a matter of prejudice, of course, it is a matter of unfair prejudice.  In this particular case, although Mr Chapple has not perhaps precisely identified the unfair prejudice, I take him to be saying that the jury would misuse it or give too much weight to it, and those are considerations that have been held to be aspects that indicate the presence of unfair prejudice.

4. I fairly concede that it is a difficult decision to make in a matter of this kind.  The first observation I would make, however, is that the two letters do substantially post-date the time of the commission of the crime.  The Crown argues, however, that the letters demonstrate a path or a continuing state of mind and certainly suggest that, at least in the 1998 period, perhaps even extending back to late 1997, the accused regarded herself as having prospects, and ambitions, for selection in the Sydney 2000 women's water polo team.  It is also true, as the Crown has rightly pointed out, that there is evidence that suggests, if the jury accept it, that an interest of this kind, or similar to it, was demonstrated as far back as 1995.  There is a live contest about that issue, as I say.  There is no need for me to try and set out the various points of view about it, or to resolve it.  That will be a matter for the jury.

5. In that regard, reference has been made to witnesses who referred to the accused's interest in playing for Australia in water polo at the Olympics Games.  On the other hand, there is cross-examination to suggest that this evidence, at least in the 1995 period, may in the end not carry a lot of weight in the minds of the jury.  I agree with Mr Crown on this, that is truly a jury question.  That evidence is all before the jury.  They will be reminded of it and submissions will be made about it and so on.  I do not doubt that the 1995 evidence may be properly seen as evidence which, according to the Crown case, can be brought forward in support of the submission that the accused's prowess as a sportswoman and her sporting ambitions provided some sort of motive for her in relation to the commission of the central crime in this trial.  On the other hand, Mr Chapple will suggest, as he has to me today, that this is a very flimsy suggestion as a motivation for a serious crime of murdering a child.

   I repeat, that is a jury question and it is not my province to trespass upon it.

6. Looking at the two letters in question, I remain nevertheless of the view that they have very little probative value.  I could not say that they are inadmissible.  I would not accept that proposition.  They are relevant, if for no other reason that they may tend to show an interest as at 1997/98 in the accused being selected in the Olympic team.  On the other hand, it may be that in a number of respects the situation had changed quite considerably in the years 1998, and certainly 1999, to make that a realistic ambition for the accused as opposed to merely some hope for the future.  In this regard I refer to the fact that in this period, although I am not certain exactly when it was, for the first time the sport of women's water polo was to be included in the Olympics.

7. The temporal distance between the sending of the letters and the date of the alleged commission of the offence seems to me a matter that makes this evidence of relatively slight probative value.  As I say, that would not lead to its outright rejection.  The question is whether that degree of probative value is outweighed by the danger of unfair prejudice to the accused.

8. I have said enough in previous decisions to reveal that I approach these sort of questions with caution.  I think that, as I have said elsewhere, this is an unusual trial and it is a trial that has some unique features and difficulties. I do think that there is scope for the jury to give too much weight to these letters.  There is a positive danger that the jury will indulge in retrospective reasoning, whereby the earlier evidence will be given a weightiness it may not possess.  I do not understand that the Crown really needs this later evidence, as Mr Tedeschi has said to me, he can point to evidence in the period leading up to 1996 where there were sporting ambitions being expressed to a number of people.  If the Crown accents his submissions, so be it. 

9. To take documents that are arguably of little weight and use them to unfairly bolster that argument does carry with it in my view the prospect the jury will give too much weight to what the accused said on the subject in late 1997 and towards the middle of 1998.  I cannot conceive that I could give any direction to obviate that danger other than to say to the jury in the end "you really can't give very much weight to this material at all".  But I do not think on balance that such a direction would really cure the prospect that the jury would misuse the evidence in the sense that I have mentioned.

10. So I regret to say, Mr Crown, even though I appreciate the force of what you put to me, that in the end I have come to the conclusion that I should exclude the two letters under the provisions of section 137.

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LAST UPDATED:
22 February 2011