R v Keli LANE [No 8] [2010] NSWSC 1535

New South Wales Supreme Court

CITATION : R v Keli LANE [No 8] [2010] NSWSC 1535

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

JUDGMENT DATE : 15 September 2010

JUDGMENT OF : Whealy J

LEGISLATION CITED : Evidence Act 1995 s 135

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

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

WHEALY J

WEDNESDAY 15 SEPTEMBER 2010

2009/256171 REGINA v Keli LANE

JUDGMENT – Re admissibility of evidence – see p 1318 of transcript 1 HIS HONOUR: The Crown has objected to a question that has been asked by Mr Chapple SC of Detective Gaut. This question in turn asks him to agree, pursuant to paragraph 94 of his statement, his principal statement, which I think may have been marked for identification, that he has stated, "During that interview," which was the interview of 8 January 2004: I mistakenly informed the accused that Duncan Gillies had told Irish police during the interview that he knew of the birth of Tahlia and had named himself as the father of that child. At the time I stated this to the accused I believed it to be the case. 2 The statement then explains perhaps how the mistake was made, or mentions matters that attributed to the mistaken belief being held. 3 The Crown has objected to the question as I mentioned. The grounds of objection are, firstly, that the particular part of the interview has by consent been edited, so that the particular assertion, namely, that Duncan Gillies was the father of the child or had told anyone that he was the father of the child has been removed, and any questions put to the accused in that context have been also removed. 4 Secondly, the Crown says the question is not probative of anything nor is it relevant to any issues the jury will have to determine in the trial. 5 Thirdly, the Crown argues that the particular topic may be unduly confusing. It may, in terms of section 135 of the Evidence Act, create confusion and be misleading in the minds of the jury, and so divert them from the task they must follow, having regard to the true issues in the case. 6 Mr Chapple, however, has supported his ability to ask questions on this matter. Essentially he argues that the question goes to the accuracy of the witness' other evidence. He argues that the fact that a mistake or mistakes were made by the detective in the course of the investigation is not unimportant, especially given the major role that Detective Gaut has played in this investigation and that he has, in the main, been the principal officer involved in a considerable number of interviews with the accused and has been involved in informal questioning of the accused. Mr Chapple he says that the jury are entitled to have regard to any mistakes that the witness may have made during the course of the investigation, because these will enable the jury to consider other matters, particularly involving observations he has made, opinions he has formed or conversations he has had with the accused. Their accuracy may be called in question. In other words, it is put, as I understand it, although Mr Chapple did not use these words, as a prequel, if you like, to his general cross-examination of this witness as to his accuracy and the reliability of his recall. 7 Viewed in that way, I think that the material is relevant and probative having regard to the issues in the trial. I do not think the fact that the parties have agreed that the topics be removed from the interview necessarily concludes the issue. It seems to me that that is an appropriate matter to be taken into account, but it does not, upon analysis preclude Mr Chapple from asking questions of the witness in relation to the edited material, provided that the questioning does not raise issues that become misleading or confusing to the jury. To that extent I accept the Crown's submissions. 8 But I understand that Mr Chapple does not propose to use the evidence in that way. His proposal essentially is to point to a mistaken belief, and to confirm that this belief could not have arisen from any of the contents of the statements Duncan Gillies made to the Irish police. I do not understand that Mr Chapple intends to explore any other possible reasons for the mistake, perhaps arising out of the statements either made by Mr XXXX or by Mr Gillies' fiancée Karen and, of course, I would think those matters, if explored in any substantial way, could possibly give rise to a confusing or misleading situation. I do not think either party should be invited to go down that track, either in cross-examination or re-­examination. 9 So I am prepared to allow Mr Chapple to pursue the questions provided that he adheres to the strictures that I have mentioned. **********