New South Wales Supreme Court CITATION : R v Keli LANE [No 1] [2010] NSWSC 1528 HEARING DATE(S) : 09/08/2010 - 13/12/2010 JUDGMENT DATE : 17 August 2010 JUDGMENT OF : Whealy J LEGISLATION CITED : Evidence Act 1995 s 38 CATEGORY : Separate question 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 - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J TUESDAY 17 AUGUST 2010 2009/256171 REGINA v Keli LANE JUDGMENT – Application by the Crown – s 38 Evidence Act – see p 336 of transcript 1 HIS HONOUR: A witness, Ms Sheila Townsend had said in her police statement, referring to the accused's stated reasons for wanting an adoption for her child Tahlia, "she wanted to represent Australia in the Olympics". The police statement was made only recently. The events described occurred in about March 1995. When the witness was cross-examined, she said she could not remember the accused actually mentioning the Olympics. Following the conclusion of cross-examination, the present dispute arose during re-examination of the witness. 2 I have given consideration to the Crown's application to be permitted to question the witness under s 38 of the Evidence Act (NSW). Leave to question under s 38 involves the making of a discretionary decision (s 192 Evidence Act). At the outset a critical point needs to be made: there is a clear agreement between the parties, and a very sensible one, that the witness such as the present was entitled to look at her police statement for the purpose of giving her evidence in-chief. Although the particular matter that has come up here does not, in its terms, specifically demonstrate that the material has been taken from a police statement, that is, the material contained on page 279 of the transcript, it is quite clear in my view that that is where it has come from, and that that is the way it had been introduced. Mr Chapple did not take any objection to this process because of his agreement with the Crown in that regard. 3 As I said during the discussion with Mr Chapple, this procedure, sensible though it is, rather inverts the normal procedure that is contemplated by the Evidence Act. That procedure is one where a witness will come to give evidence, and when he or she is questioned about a recollection of the relevant events and given an answer, the questioner may, either with leave ask a leading question, or by way of questioning under s 38 of the Evidence Act, ask the witness about a prior inconsistent statement bearing on the evidence already given. 4 It is because the normal procedures have been inverted by this agreement between the parties, that the issue in the present debate arises. It does so, unusually, after the witness has been cross-examined. It is quite clear, of course, that the particular matter is clearly not a re-examination issue. 5 I think, in these unusual circumstances, it would be unfair, and contrary to the process that has been agreed between the parties, to go back to a situation where section 38 may now be invoked. 6 It is true that the witness undoubtedly had made a reference in her police statement that suggests the accused mentioned to her the Olympics. But it is also true that she has been cross-examined, and, understandably, given the length of time between the conversation and the making of the police statement, has said that she cannot remember the words that were used in relation to this particular topic. I do not think the Crown should be permitted, in the present circumstances, to take the unusual course of cross-examining when we are, in effect, at the point of re-examination of this witness. Of course, s 38 questioning may be permitted following cross-examination, although this would normally happen only in relatively rare situations. In the present circumstances, however, I do not think it is either appropriate or fair. 7 Further, I do not consider the topic is of sufficient importance to warrant leave being given. Evidence on this point from this witness is not critical to the Crown case. Secondly, I venture to suggest it an issue that will be prove to be a rather waste of time, and an unnecessary diversion, given that the witness' position on the point is quite clear. The position is clear, as I say, because the witness gave a statement to the police, and gave evidence from that statement as her evidence-in-chief. She was then cross-examined and had to concede that she could not really recollect the actual words. Given the passage of time involved, about 15 years, I cannot imagine anything more reasonable than her very fair concession in that regard. To allow questioning on the point would essentially involve a side issue, that is how it was that, when she clearly has no actual recall of the subject, the particular sentence came to be in the statement. It could not be suggested, in my view, that she is an untruthful witness. 8 I bear in mind also that statements made to the police are not outpourings of a witness as to their recollection. Witnesses are sometimes, within proper limits, guided, assisted and prompted as to their recollection. I do not suggest for one minute that there is anything unfair in that process, or inappropriate. It is simply the way it sometimes happens. So statements appear that, upon careful and appropriate cross-examination, cannot be sustained in the witness' recollection. I consider that is the position here and that is where this present topic needs to be left. For all these reasons, I would refuse the application. ********** 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.