R v Keli LANE [No 19]

HIS HONOUR: In my view, the Crown should not be permitted to advance this argument and in particular the suggested conclusion. It is completely contrary to the decision I gave. In that decision, as the Crown has correctly identified, I firstly said that the evidence fell well short of fulfilling the necessary conditions to enable it to be placed before the jury as conduct pointing towards consciousness of guilt.

I then turned, however, to address a second problem, that is, that the evidence was already before the jury and I asked “what should be done”. It was clear in my view, essentially for the same reasons as I set out in my decision, that it would be unfairly prejudicial to the accused if the Crown were to the make a submission that suggested that the accused had no real interest in the outcome of the investigation. That seems to me to be unfairly prejudicial to her and is really part and parcel of inviting the jury to conclude that she knew the child was dead.

Secondly, the Crown argument suggested that the accused was making a pretence of being interested in the detective's investigation, I examined that proposition in the judgment and there is no need for me to repeat what I had to say about that.

In my view it is necessary for the court to make a section 136 order, and in the exercise of my discretion, I make an order under section 136 limiting the use to be made of the evidence as I said I would do in the judgment. The limitation is that the evidence is to be used for context only. That means that it is used for no other purpose than to enable the jury to understand what the two people were talking about the next day. That is my ruling.