R v Keli LANE [No 6]

HIS HONOUR : The issue is I think a fairly simple one. It engages the usual clash between the concept of probative value and the prospect of unfair prejudice, or perhaps more accurately in the context of the present question, whether evidence might be used unfairly. The Crown has argued that the evidence would be relevant as bearing upon one of the possible reasons why the accused had become pregnant on a number of occasions despite the fact that she was using the contraceptive pill. The Crown expanded this argument by suggesting that the jury would have a legitimate concern, or might have a legitimate concern, about the issue as to why she was falling pregnant so often.

In my view, however, in whichever way the argument is put, the evidence seems to be, in general terms, not relevant to the issues in the trial involving the perjury charges or the murder charge. I would assess the probative value as very low, perhaps really at nought on the scale of relevance.

On the other hand, I think questions about the accused's drinking habits during pregnancy would be inclined to make the jury think badly of the accused as a mother to be, a pregnant person, and I think that it is undesirable that this type of evidence should go before the jury for that reason. Of course, it is always possible to give directions to avoid prejudice, but the directions I would have to give here would be, in effect, to tell the jury to ignore the evidence altogether. I think that only highlights the fact that the evidence has very little probative value at all.

Finally, the Crown argued that, unless there is some evidence before the jury on the point, they may unfairly speculate as to why it was the accused was becoming pregnant. I doubt whether they would, but if there is any danger of that, they can simply be given a direction that it is not a relevant matter for them to consider and it is certainly not a matter for them to speculate about.

Finally, I would say even if there were evidence of these drinking habits and even if there is a suggestion made ultimately that those excessive drinking habits, if they existed, were in some way a factor in the accused becoming pregnant, then I think that evidence itself would really involve a process of speculation. So whichever way you look at it, it seems to me that section 137 requires that the evidence be excluded and I would not be prepared to allow it for that reason.