Supreme Court New South Wales Medium Neutral Citation: R v Weaver (No 2) [2022] NSWSC 600 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 disputed passage to the extent detailed in [18] of this Judgment. Catchwords: EVIDENCE – discretions – exclusion of evidence – criminal proceedings – application for advanced ruling under s 192 Evidence Act 1995 (NSW) – objection under s 137 – whether the probative value of the evidence is out-weighed by unfair prejudice to the accused Legislation Cited: Evidence Act 1995 (NSW), ss 55, 88, 137, 192A 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 EXTEMPORE jUDGMENT (REVISED) 1. I am making preliminary rulings under s 192A Evidence Act 1995 (NSW) on objections taken to the proposed tender of passages from letters written by Mr Weaver to Ms Howlett after their arrest. In particular, I am dealing with a passage on p 2 of a letter written on 11 January 2020, within about three weeks after the alleged murder of Mr White on 20 December 2019. 2. The admissibility of the passage has been dealt with in very close argument. It is clear to me that it is critical to each counsel's conception of the case. For that reason, I will set it out in full. For clarity and meaning no disrespect, I have added punctuation and corrected some spelling: "I hope you forgive me for hurting you physically. I get so jealous. I'm obsessed with you. You're my property only and get violent with you if I feel you betrayed me. So, if you didn't, I'm sorry for that. I feel bad. I hope you can forgive me for everything, Babe. I'm so sorry, Baby. I'm sorry for how things turned out. I never ever meant to hurt you, Bubby. You mean the world to me and always will no matter what happens. Will you stick staunch by me?" 1. As I have said in a judgment earlier today, it is the Crown case that Mr Weaver attacked Mr White with a knife, fatally stabbing him and intending to inflict really serious physical injury because he was obsessively jealous of his partner, Ms Howlett. He suspected that Ms Howlett had been unfaithful to him with Mr White and he was consumed by his jealousy, such that he committed the crime with which he is charged. 2. It was put forward that evidence of this general type was admissible on a number of different grounds. First, it went to motive, in terms of obsessive jealousy; secondly, it went to Mr Weaver's state of mind at the time he stabbed Mr White, obsessively jealous; thirdly, it went to the nature of his relationship with Ms Howlett and persons she came into contact with; fourthly, it was admissible tendency evidence; and fifthly, it, in any event, constitutes an admission of stabbing Ms Howlett on 20 December 2019 before stabbing Mr White. The fourth ground, that is to say tendency evidence, has been put to one side by agreement between counsel, generally, although it may yet raise its head. 3. Mr Evers of learned counsel who appears for Mr Weaver, I think, essentially accepts that the evidence is relevant and would, prima facie, be admissible for that reason. He also accepts, as I understand it, it is relevant in the way the Crown characterise it, save he does not accept that it is an admission of a specific act, such as the alleged stabbing of Ms Howlett on 20 December 2019. 4. His main objection is under s 137 of the Evidence Act, a familiar provision not always susceptible of easy application. It provides that in a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 5. Mr Evers argues that the probative value of the evidence is not great. This is mainly because it is couched in such general terms or at such a high level of abstraction that, on an ordinary reading, one would not draw from it, uninstructed by knowledge of other factors in the case anyway, the idea that it was an admission of the specific act allegedly committed against Ms Howlett and, for that reason, he submits, whether it is characterised as an implied admission or not, because it may be capable of being so understood by the jury, its probative value is low but its potential for unfair prejudice to the defendant is high. 6. He points out, with respect, what is true, that expressions about a male hurting his female partner physically, because of obsessive jealousy; statements that a male regards his female partner as property; and general statements about a tendency to get violent with his female partner are viewed, at this stage of the 21st century, with such abhorrence by right thinking members of the community from whom the jury will be presumptively drawn and it would lead them to approach the case with a closed mind. That is to say that the jury may reason impermissibly that if he is the type of man who generally is prepared to hurt his partner, get violent with his partner because he regards his partner as his property, then he is not the kind of man who is entitled to the benefit of the presumption of innocence. He is not entitled to have extended to him the doubt which the law requires to be extended unless the Crown discharge the stringent burden of proof cast upon it. 7. Mr Evers also submits that that attitude of abhorrence of domestic violence is so prevalent that even a strong judicial direction, whatever that means in context, would be insufficient to guard against the danger which the section itself, by its own operation, seeks to eliminate. 8. The Crown submits that it is axiomatic that evidence is not weighed and assessed in isolation, but one has to look at it in context. Section 55 of the Evidence Act itself predicates the question of relevance on how the evidence in question fits in with other admissible evidence to form part of the body of the evidence in any case and it is wrong to look at the passage in isolation. 9. The learned prosecutor also submits, so far as this evidence is proffered as an admission, as it is, that not only is the language of s 88 of the Evidence Act clear, but there is a strong body of authority bolstering it, requiring a trial judge to admit the evidence if it is capable of constituting a statement against interest by an accused person in relation to a relevant circumstance in the trial. 10. Mr Weaver will not be tried before this jury for any offence against Ms Howlett, accordingly, to the extent to which this is an admission, it is not an admission of any element of the offence with which he is charged, which is murdering Mr White. Although, it is accepted, I think, at least I am of the view, that what happened between Mr Weaver and Ms Howlett in the short period of time preceding the infliction of the fatal injury on Mr White, is so bound up with that latter event, as to really be part and parcel of what might be regarded at common law as the res gestae. It does seem to me that the evidence is significantly probative of an essential plank of the Crown case going to those factors I've referred to: motive, the related question of state of mind and the nature of the relationship between Mr Weaver and Ms Howlett. It is also capable of being an admission of him stabbing her on that specific occasion of 20 December 2019. That is a matter for the jury. 11. I accept Mr Evers' argument that the prejudicial value of an admission of a propensity to engage in domestic violence, is a matter of real concern and, with respect, he is right to raise it. It does seem to me however, and I accept that some judges may be more jaundiced about such matters, that juries do accept directions given by judges. At least that is a fundamental assumption upon which the whole system proceeds. When one is weighing whether the probative value of the evidence is outweighed by unfair prejudice to the accused, one has to bear in mind that the jury will be given directions not to reason impermissibly. I do not mean just in general terms, but in specific terms. 12. I repeat, this is not an admission that goes to the act of inflicting injury on Mr White, but it is a statement which does go to Mr Weaver's state of mind, the nature of his relationship with Ms Howlett and a motive for hurting Mr White or any other person who he feels threatens his relationship with Ms Howlett. 13. These statements are in his own words. They are not extraneous evidence from some other source. It is notable that to the extent to which he admits a tendency to violence in this passage, it is violence towards Ms Howlett and not towards any other person. For instance, he states that he gets, "violent with Ms Howlett" if he feels Ms Howlett has betrayed him. He is not here suggesting that he is violent with other people. Naturally, if the jury understood this to be an admission of stabbing Ms Howlett on the day, it would be relevant because it would say something about his state of mind. 14. I think that there is force in Mr Evers' submission that given this is about Ms Howlett and not about Mr White, that there is a risk that the jury could misuse his statements in relation to getting violent generally. And although I would of course give them the direction against impermissible tendency reasoning, it may be that that general direction would be insufficient to guard against the danger of unfair prejudice from the balance of the statement. 15. It seems to me that there is a case for taking the blue pencil, as it were, to some of this passage. With no disrespect to Mr Weaver, the syntax is difficult because it lacks punctuation and I have attempted, in reading it orally, to, by my intonation, supply the absent punctuation. It seems to me however, that it is possible to break the passage up sufficiently so that the risk of unfair prejudice is eliminated or at least substantially reduced. 16. For the reasons I have sought to explain, I am prepared to allow the Crown to have, "I hope you forgive me for hurting you physically. I get so jealous; I'm obsessed with you. You're my property only." On balance, and the section calls for a balancing exercise, the statement that he gets violent with Ms Howlett if he feels she has betrayed him is a statement which should be excluded under s 137. It says nothing about his tendency to get violent with others and it does not go to any element of the charge against him of murdering Mr White. To be clear I reject the rest of the passage after "property only". ********** Amendments 18 May 2022 - Publication restriction lifted 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