R v Keli Lane [No 3]

[2010] NSWSC 1530

CITATION:	R v Keli LANE [No 3] [2010] NSWSC 1530
HEARING DATE(S):	09/08/2010 - 13/12/2010
JUDGMENT DATE :	23 August 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

- 1 -

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

WHEALY J

MONDAY 23 AUGUST 2010

2009/256171 REGINA v Keli LANE

JUDGMENT – Re admissibility of photographic evidence – see p 552 of transcript

1 HIS HONOUR: I do not think the second group of photographs should be allowed in. I do not see any harm in the first set of photographs, the ones closest to the birth. I will give some very brief reasons, but it should be noted that the question of the admission of these photographs is one that I make on the run, admittedly. I do so without a full appreciation of all the issues that might arise and, therefore, I do not put out of question depending on the way in which the evidence develops, that the issue may be revisited at a later stage. It may, for example, depend on questions to be asked by the defence. The photographs I reject are the ones taken at the Mercantile Hotel and the Nelson Hotel.

2 My reasons are simply these: I agree to a extent with Mr Chapple SC, that the jury should not be put in a position where they have to decide, based on a selected group of photos assembled for the purposes of the prosecution case, whether the accused did or did not look pregnant onthose occasions, or whether she was or was not successful in her attempts to avoid demonstrating her pregnancy on those occasions. It is also irrelevant in my view whether some people may have thought incorrectly that she was not pregnant, and others may have correctly divined that she was pregnant. Photographs are no more than a snapshot of a particular person in a particular situation at a particular time. They cannot tell a continuous story. The one area where I feel quite strongly, however, is that I agree with Mr Chapple entirely that whether or not the accused acted irresponsibly during her pregnancy by consuming alcohol or by consuming too much alcohol or by becoming intoxicated, is, to my mind, entirely irrelevant to the murder charge. The topic is, in any event, so highly prejudicial that it clearly outweighs any supposed probative value in the proposition that she may have been, to some degree or other, irresponsible during her pregnancy.

3 I cannot accept that this is evidence that should be permitted in the case, and that is a further reason why I think the photographs showing her at the Lord Nelson Hotel and the Mercantile Hotel should not go into evidence. As the Crown has rightly pointed out, the idea of putting in a photograph that has a caption on it "Keli Lane intoxicated at the Lord Nelson Hotel" is completely prejudicial and unfairly so in this trial.

4 The Crown, in fairness, of course, has not suggested that this particular aspect of the photos should be placed before the jury. I appreciate that qualification but, in any event, I think that the topic as I see it at the moment is too prejudicial to be allowed. The photographs make exactly the same point as the caption, perhaps even more prejudicially. As I have said, however, there is really no relevant value in the topic in relation to any of the charges against the accused and the photographs should be excluded on that basis, and the further basis that they will serve no useful purpose other than to inflame the jury unfairly against the accused.

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