R v Keli LANE [No 4] [2010] NSWSC 1531

New South Wales Supreme Court

CITATION : R v Keli LANE [No 4] [2010] NSWSC 1531

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

JUDGMENT DATE : 23 August 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 23 AUGUST 2010

2009/256171 REGINA v Keli LANE

JUDGMENT – Re admissibility of hypothetical question put to witness – see p 552 of transcript 1 HIS HONOUR: That leaves me finally with one further matter for decision so I will endeavour to deal with it immediately. This is the issue that arose before the morning tea adjournment. The Crown wishes to ask Mr Gillies, who is presently giving evidence, what it is he would have done had he been told by the accused that she was pregnant at the relevant time. His evidence to date, of course, is that he was completely and unequivocally unaware of the pregnancy. 2 The Crown has identified the relevant point as this: "Did the accused lie to Ms Fung when she said she had no support and that she was entirely on her own?" In my view, however, the jury are perfectly able, as the evidence stands, or is likely to stand, to determine whether this was a lie or not. They will not be assisted by the hypothetical question now being addressed. The question that is sought to be asked of Mr Gillies in my view is so hypothetical that it could not provide any useful guide as to how he might have, in fact, reacted had the information been revealed to him at the relevant time. That is my first observation. 3 But whether I am be right or not about that observation, it seems to me that in any event the evidence is not relevant. It does not seem to me that the witness's hypothetical state of mind as to his conduct is relevant as a factual criterion to determine whether the accused told a lie to Ms Fung. This is because that question has to be judged simply in the light of the fact that the accused did not tell Duncan Gillies about the pregnancy according to his repeated evidence, and his evidence that indeed he knew nothing about it. 4 The hypothetical question sought to be asked, in my view, is apt to distort the issue into an analysis that is to be made against an entirely hypothetical set of facts. For example, the question really postulates this; if Duncan Gillies had known about the pregnancy, and if Keli Lane had known that he knew about the pregnancy, what would she, in that hypothetical situation, have said to Ms Fung in the light of what the witness might now say in the witness box as to his actions, had he in fact known of the pregnancy. 5 Putting the analysis in that way shows just how far removed from the real issue that question is, and in my view, it is so far removed as to be not relevant. I repeat, the jury will easily be able to conclude on the evidence now before it, if the evidence remains as it is, that Keli Lane's remarks to Ms Fung were not truthful, if that is how they view those remarks For those reasons I will not allow the question. **********