R v Keli LANE [No 2] [2010] NSWSC 1529

New South Wales Supreme Court

CITATION : R v Keli LANE [No 2] [2010] NSWSC 1529

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

JUDGMENT DATE : 18 August 2010

JUDGMENT OF : Whealy J

LEGISLATION CITED : Evidence Act s 137

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

WEDNESDAY 18 AUGUST 2010

2009/256171 REGINA v Keli LANE

JUDGMENT – On application to exclude evidence under s 137 Evidence Act – see p 379 of transcript 1 HIS HONOUR: In this particular case, the Crown did not exactly pull any punches in its opening. It opened to the jury on the basis that it would be suggesting that there was a special reason why the accused wanted to leave Auburn hospital as rapidly as she could on 14 September 1996. The reason was said to be that she was under an obligation to go to a wedding on that day, and that this was a matter of considerable concern to her. 2 As I understand it, and I may be wrong, I do not envisage that there will be evidence in the form of admissions to suggest that this state of mind was present. There will be circumstantial evidence that she did go to a wedding that day and the jury will be invited therefore, to conclude she was aware of the wedding, that it was on and that she perhaps would be expected to attend. 3 On the other hand, again, I do not know, it may equally be the fact that there seems to have been no reason why she might not have declined to attend and might have given any number of excuses for that decision. Be that as it may, that is the position the Crown has taken in presenting its case. Further, it suggests that the leaving of the hospital in circumstances where there were at least two other possible tasks to be undertaken in relation to baby Tegan, namely weighing the child and making sure that she was identified correctly before she left the hospital, may suggest a degree of urgency. These suggestions will arise from the evidence of Ann Marie Hanlon, and there will be further evidence through Nurse Hanlon that perhaps suggests that none of the nursing staff saw the accused leave with her baby. 4 Against that background, dealing with the way in which one particular aspect of this part of the case will be left to the jury, the Crown opened: She probably left via the fire escape which was almost opposite the room where she had been sharing with the other patient. The door had no alarm on it so she was able to leave the ward without having to go past the nurses' station. It was definitely before 12 noon because the other mother in the same room noticed that she was gone by 12 noon and, in fact, the accused herself many years later when she was being interviewed by the police admitted that she had left the hospital prior to midday. 5 The Crown has fairly conceded that the opening sentence I have quoted may have overstated its position. In that regard, the Crown case is not so much that she "probably" left via a fire escape, but that she possibly did. 6 The Crown has refined its position in argument this morning. The Crown has argued that its case is that the accused had a means of leaving the hospital without passing the nursing station. She had, secondly, the opportunity to do so and, in that regard, it was an option available to her if she chose to leave the hospital in a hurry. 7 The Crown makes that submission on the basis that its case is that she was indeed in a hurry to leave. If she had chosen to go out via the nursing station, the Crown argued, there is a possibility, perhaps even a probability, that she would have been checked at the nurses' station and there would have been a delay. She may have been told to wait while the two unfulfilled tasks were performed. It might be said, of course, that they were hardly tasks that were likely to take more than a few minutes, but that is perhaps a matter for emphasis by counsel in their submissions and questions, rather then a matter for me. 8 The statement to which objection has been taken is that of Ann Marie Hanlon dated 7 November 2008. In paragraph 10 of her statement, the witness says: I recall then walking into the patient Keli Lane's room and explained to her what was then required of her once she attended Ryde Hospital. I explained to her that all documents, including the blue book and newborn screening test, were to be handed to the two nurses from the programme. 9 The paragraph continues then to discuss the steps that were then taken by the witness. 10 Further in the statement at paragraph 13 the witness says: I recall that the patient Keli Lane was in either room 517 or 519, but most probably 517. I remember walking into the room and her feet were facing the nursing station which was down the corridor. 11 And here we come to the part of the statement to which objection has been taken: I know that opposite the doorway to room 519 is a red door that has written upon it the words 'fire stair'. This door opens onto a stairway that then enables a person to leave the hospital. The door opens up to one of the hospital's surrounding streets. Currently, and back in 1996, this door was not alarmed in any way, so if anyone opens the door it can be done so without anyone noticing. I have been shown two photographs of the fire door stairs and can say this is the door that I am detailing. I have signed those two photographs to verify this. 12 Mr Chapple SC's objection derives from the fact that he says there is no evidence in the case to suggest that anyone saw the accused go down the fire steps, or use the fire doors to exit. He says it is pure speculation on the part of the prosecution. Why is this fire escape picked, counsel asks, when there may have been a number of other exits that could have been used? 13 Mr Chapple complains that the Crown has not, in fact, produced evidence to show where the nurses' station precisely was in relation to the actual room occupied by the accused on the day in question. He makes the point that there was nothing wrong with the accused leaving in the way she did, that is, without the weighing and identification process being followed. Counsel did not make this submission, but it occurs to me, it might also be also raised by the defence, in any event, that while she may have been in a hurry it may not, or the evidence, have been a hurry to get to a wedding. 14 On the defence case, it may have been a need to fulfil whatever arrangement had been made to hand the baby over to someone else. All those things are possible and I apprehend that is why the present evidence is of some concern to Mr Chapple. Importantly, he makes the point that there was no hue and cry raised in the hospital. It was not as if the hospital took the view that the departure of Keli Lane with her baby was a matter that required police intervention, or raised a need for any authorities to be contacted. Indeed, there was no need for anything to be done at all. It appears the accused and her baby were free to go if she chose to leave when she did. Mr Chapple's concern is that the evidence, neutral though it be, is being forced unfairly into the confines of the Crown theory and may be misused by the jury. 15 If necessary, if anybody wants me to, I can set out in a final form of these reasons the various authorities that are apposite to the proper construction and application of s 137 of the Evidence Act. The gravamen of those authorities in the present context is this: is the jury likely to misuse the evidence that is being put forward? 16 If the evidence can be simply confined to a statement by this witness that there was in fact a fire stair, and fire exit doors, in reasonable proximity to whatever room it was the accused was in; that that door did lead down to the streets, and that it was not alarmed so that people could leave by it or could use it, if they wished, without encountering any hindrance, then it does not seem to me that there is any risk of unfair prejudice in relation to this matter. The evidence clearly has probative value. It does not seem to me that on its face, however, there would be any real capacity for misuse of that evidence, provided the jury is instructed in due course, that this is not evidence that the accused left by those doors and that exit. 17 So it does seem to me that the type of unfair prejudice that Mr Chapple is worried about can be dealt with by directions. For my part I would not see any particular need to give a direction at this stage. It might be a matter that gives the evidence undue emphasis but I will be guided by counsel on that. Certainly in final summing up, in looking at the evidence of this particular matter, the jury could be reminded that it is no more than evidence of an available opportunity for leaving and that there is no evidence, at least as far as I understand the Crown case, that anyone saw the accused go down that fire step or, in fact, saw her leave at all. There were other avenues of exit available to her and, in the natural course of things, in a busy post-natal ward, she may well have not been noticed by staff as she left. She had been discharged and, it appears, was free to go. 18 Consequently, I am not persuaded that the evidence should be excluded under section 137. As to all the other matters Mr Chapple raised, the fact that there is, for example, no sketch plan of the lay-out of the floor apparently going to be available, that it may fall to the defence to examine where the nurses' station was and whether it was fully staffed at all times and so on, I think they are matters that can be raised in cross-examination. 19 The photos, however, I think are documentary material that would unduly emphasise this evidence. They are not photos of the position as it stood back in 1996 in any event, and I would reject the tender of the photographs. **********