Supreme Court New South Wales Medium Neutral Citation: R v Weaver (No 9) [2022] NSWSC 523 Hearing dates: 12; 13; 14; 19; 20; 21; 22; 26; 27; 28; 29 April 2022 Date of orders: 29 April 2022 Decision date: 29 April 2022 Jurisdiction: Common Law Before: Campbell J Decision: I reject the contested passage of Ms Hampson's statement of 22 December 2019. Catchwords: EVIDENCE – hearsay – exceptions – evidence of a previous representation being a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind – evidence rejected Legislation Cited: Evidence Act 1995 (NSW), ss 66A, 135, 137 Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Regina (Crown) Scott David Weaver (Accused) Representation: Counsel: B. Costello (Crown) A. Evers (Counsel for the accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2019/406492 Publication restriction: Publication restriction lifted at the end of the trial Judgment 1. I am asked to make a ruling in an advance of Justine Hampson being called to give evidence. Her statement to police of 22 December 2019 has been tendered (Exhibit VD6). The contentious portion of her evidence is in the following terms: (Exhibit VD 6 [6]): "On Friday 20 December 2019 about 9 a.m. I rang [Mr White] who told me he didn't have any [Heroin] but was going to the doctor later that morning and then after that to Sydney to score and he would be back in the afternoon. While I was talking to Larry he lowered his voice and said "Scott stabbed Yolanda in the guts and there was blood all over her and he was going to stab her 100 more times for every minute I didn't give them drugs"." The italicised portion is the representation objected to by Mr Evers for the defence. 1. The Crown submits that the matter is relevant and admissible under s 66A Evidence Act 1995 (NSW). It is submitted that the representation is a contemporaneous representation about Mr White's state of mind. The words uttered coupled with the circumstance of Mr White lowering his voice are said to be capable of being understood by the jury as evidence that at or about 9 a.m. on 20 December 2019 Mr White was apprehensive, concerned or cautious about Mr Weaver's attitude. If the jury accept the evidence in that way, so the argument goes, they may reason that it is unlikely that he would be the aggressor in any confrontation with Mr Weaver that morning, a circumstance tending to negative the issue of self-defence raised by Mr Weaver. 2. Mr Evers submits that the evidence is not capable of supporting the inference for which the Crown contend either on its own or in conjunction with other evidence. Rather, Mr Evers submits the evidence is not relevant because in terms it says nothing about Mr White's state of mind. At best it is a non-contemporaneous narrative about something that happened prior to the telephone conversation and the circumstance that Mr White may have lowered his voice is so general as to be meaningless. It was submitted that there may be many reasons why a person may lower their voice: to guard against the risk of being overheard; for emphasis by way of intonation; or to lend a conspiratorial air to the statement made. The list is not exhaustive. Mr Evers submits that if the evidence is relevant and admissible under s 66A, I should exclude it under either ss 135 or 137 because its probative value is outweighed, even substantially outweighed, by the danger of unfair prejudice to the defendant. 3. In my judgment, the evidence should be rejected. In my judgment, the potential for the jury to infer that the lowered voice statement in the terms it was made was a contemporaneous representation about Mr White's state of mind is tenuous to the point of speculation. I accept that the representation could not rationally affect directly or indirectly the assessment of the probability of the existence or otherwise of any fact relevant to Mr Weaver's belief that stabbing Mr White more than once was necessary to defend himself. This in truth is the issue to which it must go to be relevant. 4. In terms the statement made by Mr White says nothing about his state of mind at the time he made it. It is no more than a non-contemporaneous narrative of a fact which occurred earlier. The lowering of his voice adds nothing meaningful by way of implication. I accept Mr Evers' argument that a person may lower his or her voice in conversation for any number of reasons relevant to the purpose of the communication. These things being so, to ask the jury to draw the inference from the representation in the circumstances in which it was made that the Crown would seek is to invite them to speculate. 5. I reject the emphasised portion of paragraph 6 of Ms Hampson's statement of 22 December 2019. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2022