R v Keli LANE [No 16] [2010] NSWSC 1543

New South Wales Supreme Court

CITATION : R v Keli LANE [No 16] [2010] NSWSC 1543

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

JUDGMENT DATE : 11 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

THURSDAY 11 NOVEMBER 2010

2009/256171 REGINA v Keli LANE

JUDGMENT: Re admissibility of evidence – see p 2760 of transcript 1 HIS HONOUR: I have heard lengthy submissions from the parties. In my view, the evidence is not relevant. It plainly has less relevance than the evidence I previously rejected on the same topic. This relates to the year 2000 whereas the previous material related to 1997/1998. I think it is very clear that the Crown's attempt to introduce this evidence is simply an endeavour to cavil with the ruling I made earlier, and I am not satisfied that it has relevance. If I am wrong in that, then any relevance it has is very minimal indeed, and I remain persuaded that its admission into evidence will result in a situation where its very low level of probative value, if any, will be substantially outweighed by the danger of unfair prejudice. 2 That unfair prejudice is precisely the matter that the Crown has put to me in the concluding argument it made, namely, that the jury should reason retrospectively that because the accused took part in a particular water polo competition in 2000, that must mean she had a strong ambition to be an Olympic swimmer representing Australia in 1996. The fallacy of this is that at the earlier time the sport of water polo was not an Olympic sport at all. Such reasoning, in my view, would be impermissible, and it would be very difficult to direct the jury appropriately to avoid prejudicial retrospective reasoning. For exactly the same reasons as I gave in relation to the 1997/1998 documents, I reject the tender of the 2000 material. 3 I also reject it because the obtaining of a statement from this witness the day before yesterday is in clear breach of the rulings that I have made on a number of occasions. Those rulings sought to draw a line in the sand for any new Crown material. I simply add that, while I indicated I think fairly to the Crown at the time there would be an escape hatch if matters had simply been overlooked or matters had been inadvertently not attended to or for some compelling reason something had to be proved, then I would have allowed that direction to be breached. But this, in my view, does not fall within any reasonable escape hatch provision, and it is simply too late in my view for the Crown to be running around all over Australia getting new witnesses at this late stage of the proceedings 4 Finally, may I say I remain convinced that the Crown still has available to it an argument it wants to put on motivation, whatever be its strength or weakness. It does not matter much whether the argument is put in terms of an ambition to be an Olympian or to be an elite sportswoman at the highest level. I simply do not see that the Crown is at all prejudiced by the rejection of this evidence. **********