R v Keli LANE [No 15]

[2010] NSWSC 1542

CITATION:	R v Keli LANE [No 15] [2010] NSWSC 1542
HEARING DATE(S):	09/08/2010 - 13/12/2010
JUDGMENT DATE :	11 November 2010
JUDGMENT OF:	Whealy J
CATEGORY:	Procedural and other rulings
PARTIES:	Regina (Crown) Keli LANE (Accused)
FILE NUMBER(S):	SC 2009/256171
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)
LOWER COURT JURISDICTION:	Supreme Court

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

WHEALY J

THURSDAY 11 NOVEMBER 2010

2009/256171 REGINA v Keli LANE

JUDGMENT: Re admissibility of evidence – see p 2758 of transcript

1 HIS HONOUR: The Crown wishes to support by the tender of a map an argument in its final address that there were areas not far from the Auburn Hospital where the accused might have murdered her child, they being areas described as areas of particular solitude and/or seclusion. The Crown frankly concedes, as it must, that there is no evidence that directly suggests the accused murdered her child and equally there is no direct evidence to show where that might have happened. It is true, I think, as Mr Chapple says, that one particular aspect of this trial that raises special concerns about the tender relates to one specific aspect of the Crown opening referring to the Olympic site as a place where the child may have been killed. There was no Crown evidence to support the suggestion. As it turned out, the Crown withdrew those remarks before the jury when strong objection was taken by Mr Chapple. I should make it clear that if those remarks had not been withdrawn, I would have discharged the jury at that point.

2 Allowing the trial to continue after the withdrawal of those remarks still leaves hanging in the air a risk that the jury might remember the Crown's words. It might overlook his withdrawal of those remarks or perhaps just ignore the withdrawal and indulge in speculation. This danger would be heightened by looking at a map that shows open areas, such as the Olympic site, the undeveloped suburb of Newington, the Rookwood Cemetery, the various areas of parks and so on. In my view, there is a real risk that this photograph will invite speculation and may revive memories of the suggestion that was withdrawn. The jury would be tempted to look at it, no matter what submissions are made, and wonder to themselves whether the child might not have been murdered and disposed of in one of those secluded areas. That is, to my way of thinking, precisely what a jury must not do in a case where there is no evidence to support the proposition that the place of murder and disposal has been identified. Indeed, I would say that the prospect of such speculation is not only a live one but reflects just how prejudicial the tender is in the particular circumstances that I have outlined, and with the particular history I have outlined.

3 Mr Tedeschi very properly indicated that he will submit to the jury that the Crown cannot show where the alleged murder occurred and that there is no evidence to enable that to be done. That I think is a fair submission but I am very wary of any submission that moves beyond that point, especially if it were to invite speculation and if that speculation were graphically supported by the tender of a document such as this map.

4 For those reasons I have come to the conclusion that the tender of the map should be rejected.

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