R v Keli LANE [No 7] [2010] NSWSC 1534

New South Wales Supreme Court

CITATION : R v Keli LANE [No 7] [2010] NSWSC 1534

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

JUDGMENT DATE : 13 September 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

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

WHEALY J

MONDAY 13 SEPTEMBER 2010

2009/256171 REGINA v Keli LANE

JUDGMENT – Re application for a view – see p 1229 of transcript 1 HIS HONOUR: An application has been made for an inspection to be held by the jury tomorrow, Tuesday 14 September. The areas to be inspected are set out on a document which has been placed before me which I will mark as identification 52.

MFI #52 DOCUMENT SETTING OUT AREAS TO BE INSPECTED ON VIEW. 2 There is no objection to the inspection being held, no objection is made by or on behalf of the accused. There is indeed agreement in principle to the holding of an inspection. Section 53 gives the Court the power to order an inspection, but subsection (2) notes that the Court is not to make an order unless the Court is satisfied of certain things that are then set out. The first of those is that the parties will be given a reasonable opportunity to be present, and in that regard I understand that Mr Chapple SC, on behalf of his client, will obtain some instructions and let me know later in the morning as to her position. I hold the view myself that it is desirable for the accused to be present although there are clearly circumstances where that would be a less than desirable situation such as where an accused person is in custody and that matter may not be known to the jury. 3 There are situations that I have encountered myself where I thought it was not necessarily in the best interests of the accused to be present at a view, but I will be guided by Mr Chapple as to the present position. 4 Now, some of the matters that then may be taken into account by the Court are whether the inspection will in the Court's opinion assist the tribunal of fact in resolving issues of fact or understanding the evidence and, generally speaking, I would think that the prospect of an inspection clearly answers that question in a positive fashion here. I am not aware as to whether there is any matter that might make any aspect of the inspection unfairly prejudicial or misleading or confusing. No such matter has been put to me by either of the parties and I would not think that there is any problem in relation to the requirements of subsection (c) which deals with those matters. 5 One matter that has to be dealt with, of course, is what directions are to be given to the jury and that will clearly include any direction pointing out the extent to which the place to be inspected has been materially altered. I will be guided by the parties if there is a need to say anything about that aspect of the matter. 6 Section 54 enables the jury to draw any reasonable inference from what it sees, hears or otherwise notices during an inspection and I would think it is desirable that I should draw that to the jury's attention. At the same time I will remind the jury they are not able to conduct experiments of their own and make further inquiries of their own, and in one sense the inspection to be held is an exception to the general direction I have given them as to how they take matters into account. The general rule, of course, is that it is only the evidence they hear in the courtroom that is relevant to their deliberations. Here the exception is the way in which they may draw reasonable inferences from what is seen or heard or otherwise noticed during the inspection. 7 I am sometimes tempted to observe that the language of section 54 is unusual in that it appears to forbid the jury from drawing any unreasonable inference from what they see or hear during an inspection. But in any event, there is a standard direction that is given and I will give that provided nobody has any objection to it. In all, then, in the circumstances I am satisfied that an inspection should be held as requested, however, there are some formal matters that we have to further consider and I will do that later when Mr Chapple has his instructions. **********