Supreme Court New South Wales Medium Neutral Citation: R v Weaver [2022] NSWSC 599 Hearing dates: 12 April 2022 Date of orders: 12 April 2022 Decision date: 12 April 2022 Jurisdiction: Common Law Before: Campbell J Decision: Allow the admission of the first and third disputed passage of the record of interview, but not the second. Catchwords: EVIDENCE – witness evidence – accused – ruling under s 192A Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 1995 (NSW), ss 106, 137, 192A Cases Cited: R v Soma (2003) 212 CLR 299; [2003] HCA 13 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Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2019/406492 Publication restriction: Not to be published until the completion of the Trial EXTEMPORE jUDGMENT (REVISED) 1. Mr Weaver is to stand trial for the murder of Mr Larry White. The case against him is that because he was jealous of conduct that he perceived between his partner, Ms Howlett and Mr White and in particular because of sexual jealousy, Mr Weaver engaged in a violent altercation with Mr White, stabbing him with a knife and causing his death. It is said that he did so with the actual intent of, at the very least, inflicting grievous bodily injury on Mr White. 2. I am told that when Mr Weaver is arraigned before the jury panel, he is likely to plead not guilty to murder, but guilty to manslaughter. 3. Although there are a number of issues at the trial, and no concession is made in relation to the deliberateness of his actions, or the intent that accompanied them, it is said that a principal basis on which the jury will be asked to find him not guilty of murder, but guilty of manslaughter, is excessive self-defence. It will be the case for Mr Weaver, at least in substantial part, that when he stabbed Mr White, which he will admit, he did so because he believed his actions were necessary to defend himself from Mr White's aggression. However, he will accept that his response was not a reasonable one in the circumstances as he perceived them. 4. In that context I am asked to rule under s 192A Evidence Act 1995 (NSW) on some contested passages in the recorded record of interview between Mr Weaver and investigating police. The argument has been developed by counsel, both in writing and orally, before me today. I should say that counsel, as is common in New South Wales, have been able to confer with each other and agree largely upon what editing is appropriate to the recording of the interview to make it fit to be put before the jury. There are three passages which are still contentious. 5. It is part of the Crown case that the circumstances which led to Mr White's death on the morning of 20 December 2019 commenced with an altercation between Mr Weaver and Ms Howlett during which he, not for the first time, accused her of infidelity with Mr White and the Crown allege that during that argument he produced a knife, stabbing Ms Howlett in the abdomen. I understand that if he chooses to give evidence, Mr Weaver might accept that such an incident occurred. I interpolate that the injury to Ms Howlett was, fortunately, not serious. 6. The first passage in dispute between counsel is concerned with that incident. It starts at question 481 of the transcript of the record of interview and runs through to question 495. It is fair to say, in that passage as a whole Mr Weaver denies having stabbed Ms Howlett, but states that he had heard rumours, started by his former partner, to that effect. He says that if there was any evidence of injury on Ms Howlett it was because she was, in his words, "a picker" or a person who harmed herself. The Crown submit that the denial is relevant at least, and if not on another basis, as to the credibility of the account given by Mr Weaver to the police. 7. The learned prosecutor also referred to the High Court decision in R v Soma (2003) 212 CLR 299; [2003] HCA 13. That case is to the effect that the obligations of a prosecutor under Australian common law and by application of the accusatorial principle is to lead all evidence upon which he or she intends to rely against the accused in the Crown case in-chief, subject to very narrow exceptions. That case arose in Queensland, but I am satisfied, having had the opportunity to briefly consider it, that the principle which animates the High Court decision is of general application throughout Australia, regardless of the legislative context in which the questions of admissibility of evidence in criminal trials are to be determined. That was a case where the Crown had cross-examined the accused in a rape trial about an allegedly prior inconsistent statement made to investigating police without leading evidence of that statement when the police officer was called. The High Court was critical of that approach or practice and emphasised that the accusatorial aspects of the duty of the prosecutor required the evidence to be put in the prosecutor's own case if it was to be relied upon against the accused. 8. Mr Evers of learned counsel, who appears for Mr Weaver, accepts that is an accurate summary of the principle for which R v Soma stands. He argues that the manner in which Mr Weaver's denial was elicited by police was unfair to the extent to which it was inadmissible. 9. I, with respect, do not accept that argument. It is certainly true that during the passage of the record of interview, which is very long, with which I am presently concerned, investigating police were seeking to, as it were, commit Mr Weaver to his account of the events of 20 December 2019 without, at that stage, confronting him with possibly incriminating facts that they believed their investigation had uncovered or supported. This is a familiar technique adopted by investigators and, in my judgment, it is not, of itself, unfair, even if at times it may produce unfairness. It is trite to say that investigators are not advocates and that although the admissibility of information acquired by investigators is determined by the rules of evidence, and police have obligations of fairness under the legislation which governs their activities, the rules of evidence themselves do not, as it were, bind an investigator. I interpolate, some cross-examiners may permissibly follow a similar approach. 10. The police were seeking to commit Mr Weaver to a version of events, as I have said, and the questions they asked leading up to the passage in dispute were in fact non-leading questions. They asked, "While you were in the bedroom with Yolanda", that is Ms Howlett, "did anything happen during the argument?" and initially Mr Weaver said he thinks he smashed his phone. And just as the police were about to ask a question which may have confronted him with the allegation that he stabbed Ms Howlett, he interrupted and said, "Oh, apparently she got stabbed too". He went on to say, that was according to rumours he had heard, which he believed had been started by his ex-partner. 11. It seems to me that that material is admissible by application of the principle I have referred to in R v Soma. It is evident that if Mr Weaver does give evidence, and he admits in his evidence a stabbing incident involving Ms Howlett, that the prosecution are entitled to challenge him about his denial when asked the question by police, if on no other basis at least under s 106 of the Evidence Act, provided other safeguards are observed. And, on that basis, I rule that that first contested passage is admissible. 12. The next passage concerns questions about the circumstances of Mr Weaver's arrest (Qs 1287-1316, and Q 1336). At that time, he, if I may say so, had a number of issues about which he was entitled to be concerned that police may have an interest in him, which have been outlined in the arguments of counsel, not only by Mr Evers but also acknowledged by the learned Crown Prosecutor. It is expected that arresting police will give evidence of "flight" in the surrounding circumstances of the arrest and there may be issues about that matter when it arises, having regard to what Mr Evers has put to me. 13. For the record, Mr Weaver, in the passage the subject of the second objection, denied any flight. He in fact said he stopped and gave himself up. He was also found to have a knife in his possession or under his control when arrested and there is a later question, question 1336, where he denies that knife had anything to do with Mr White's death. I interpolate that on any basis of the evidence Mr Weaver was well aware that Mr White had been stabbed and that he died as a result of the knife injuries, but I need not descend into that detail any further, given what I understand will be his case at the trial. 14. Given what is said about flight in the context of consciousness of guilt, the Crown submit that what Mr Weaver said about the circumstances of his arrest when asked about it in his record of interview must be admissible. Mr Evers strongly disputes that and points out, as the Crown acknowledged, that there were a number of reasons, even if the jury are inclined to accept, if they hear the evidence, that he took flight when approached by police, why he would do so. He was on parole, he had possession of a firearm when he was subject to a firearms prohibition order, quite apart from his parole, and also had a knife in his possession. All of these were matters which might agitate a person's thinking if police approached them. Mr Evers submits that, for that reason, notwithstanding that it is a jury question, the jury just could not be satisfied beyond reasonable doubt that any flight at the point of arrest was due to consciousness of guilt of murder. 15. I accept that submission by Mr Evers and it seems to me, in any event, that even if I am wrong about that, as an admissibility question, that evidence, given the complexity of Mr Weaver's circumstances at that point of time, should be excluded in any event under the provisions of s 137 of the Evidence Act. For those reasons, I reject that second passage from running from about question 1291 through to 1316 and also the answer at question 1336. 16. With regard to that last question, despite the concerns of the learned Crown Prosecutor, it is not said by anybody that the knife he had in his possession when arrested was the weapon which was used to inflict the fatal injuries on Mr White. 17. The next passage relates to question 1361 through to question 1385. Those questions and answers concern Mr Weaver's account of the nature of his relationship with Mr White prior to the events of 20 December 2019 and his attitude or state of mind towards him. It seems to me that evidence is relevant. In the account he gives, to put things in a summary form, Mr Weaver talks about Mr White's age. He says, in a passage not disputed, "He's a 66-year-old man, like Larry, like he's always been my mate." That statement is obviously exculpatory, in as much as it contains the implication of a complete lack of prior animosity between Mr Weaver and Mr White. 18. The contested passage goes on to give examples of conduct toward Mr White by Mr Weaver which suggests that Mr Weaver looked after Mr White when others attempted to take advantage of him, or stand over him, and while that evidence is not inconsistent with Mr Weaver believing he had to protect himself from Mr White in the particular circumstances of a discrete occasion, it does remain relevant because it suggests that Mr Weaver is much younger and I am told a much more strongly built man than Mr White. It suggests, first, that there is no reason for there to be any animosity between him and Mr White and, secondly and more importantly, that far from being aggressive towards him, he was protective of him. In my judgment, that is evidence which is relevant at the trial and, may I say, is likely also to be covered by the principle I have already referred to in R v Soma, if Mr Weaver gives evidence and is cross-examined by the Crown about the nature of his relationship with Mr White. 19. For those reasons, I would allow the admission of the first and third disputed passages of the record of interview, but not the second. ********** 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: 18 May 2022