New South Wales Supreme Court CITATION : R v Keli LANE [No 21] [2010] NSWSC 1548 HEARING DATE(S) : 09/08/2010 - 13/12/2010 JUDGMENT DATE : 23 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 - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J TUESDAY 23 NOVEMBER 2010 2009/256171 REGINA v Keli LANE JUDGMENT: see page 2955 of transcript 1 HIS HONOUR: In part, I consider that the matters in the first of the contested issues have been dealt with by me in my earlier decision. In that decision I said that the accused may have been expressing a view that she was by no means optimistic about the early conclusion to the investigation by the police. That I think emerges from the first part of the call on 9 January 2004. It also may be said to emerge, although less clearly in that part of the conversation, where she is discussing the difficulty about telling her parents about what happened. In that conversation the accused seems to be saying that even if she tells her parents about the births of the three children, including Tegan, that will not end the police investigation which will go on. 2 In the final intercept on 9 September 2004, she certainly seems to be suggesting that she cannot see an end in sight to the police investigation at any time soon. 3 As I see it, the Crown wants to say to the jury in this context that "the accused had no expectation that Tegan was going to be found soon and the investigation terminated." That seems to be consistent with the part in my earlier decision where I said that the Crown could make some response to this and it would entitle, of course, Mr Chapple to make his answer to it. He could argue, no doubt, the situation from the defence point of view. In other words, Mr Chapple can say, "The Crown is really reading too much into it and although the accused is certainly suggesting she can't see an early end to the investigation, that you can't therefore conclude anything that is really something that is adverse to her case in that regard." It may require a direction from me but, again, it is a matter for Mr Chapple to tell me whether he needs a direction to the effect that whatever the conversation means, it cannot mean and the jury must not reason that this is said because she knew the baby was dead. 4 I digress to say I do not know what directions the defence will want me to give, but this is a good example of a situation where I might be willing to give such a direction. The defence, however, may not wish me to do it, so I will need assistance from the defence in due course about that type of situation. 5 The only area therefore where I have any quarrel with the Crown on this point is a matter not set out in this document I have been given. The Crown seems to wish to suggest that, in the conversation, the accused is refuting the suggestion that the baby has been sold, informally adopted or given away. That does not seem to be any part of the document I am looking at. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.