Supreme Court New South Wales Medium Neutral Citation: R v Weaver (No 3) [2022] NSWSC 601 Hearing dates: 12; 13 April 2022 Date of orders: 13 April 2022 Decision date: 13 April 2022 Jurisdiction: Common Law Before: Campbell J Decision: Disputed passages set out in this Judgment are admitted. Catchwords: EVIDENCE – discretions – exclusion of evidence – criminal proceedings – application for advanced ruling under s 192A 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, 136, 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 continuing today the rulings in relation to contested evidence which the Crown wish to rely upon in the trial. I will not recite the facts of the allegations against Mr Weaver for the purpose of this particular judgment. I have outlined them in broad terms in the judgments I have already delivered. 2. There are two passages in issue on page 2 of a letter written by Mr Weaver to Ms Howlett from gaol on 20 January 2020. I will set them out in full as follows. I will also add what I understand to be the natural punctuation which follows from Mr Weaver's expression, which is in any event very clear. The first passage is: "I want to know where you are at all times. If ever I suspect you cheating on me again, I'll kill you. And then understand you know where we stand. You're lucky I'm even talking to you after everything I found out about what you did." 1. The second passage is: "Don't even look or talk to another man again, okay? Or people are going to end up hurt." 1. Mr Evers accepts that these passages meet the undemanding test of relevance presented by s 55 of the Evidence Act 1995 (NSW). He argues that they should be excluded under the provisions of s 137 of the Act on the basis that their probative value is outweighed by the danger of unfair prejudice to the accused. He submits that the threat to kill Ms Howlett on the one hand, and to hurt other men to whom Mr Weaver suspects she may be attracted on the other hand, are the type of matter which could lead a jury to reason impermissibly to a conviction regardless of the directions about the proper use of this evidence they may be given. 2. He submits that a jury may, having regard to this very direct language used by Mr Weaver, regard him as a real danger to others, and for that reason the jury may be prepared to convict him for reasons of public safety, rather than because they are persuaded beyond reasonable doubt that he is guilty of murdering Mr White. 3. The Crown submits that these expressions go to the very heart of the Crown case concerning motive. As I have said in other judgments, the Crown case is that the content of these letters, written in Mr Weaver's own hand and employing his own language, is relevant evidence which the jury can employ in evaluating the Crown case on motive, being sexual jealousy, the nature of the relationship between Mr Weaver and Ms Howlett which is relevant to the events of 20 December 2019, being one of obsessive possessiveness, and Mr Weaver's state of mind at the time he stabbed Mr White, being one where he was effectively consumed by his jealousy. 4. During the course of argument, I had discussed with counsel the possibility of admitting the evidence subject to a direction under s 136 of the Evidence Act limiting the use that may be made of the evidence given the danger that Mr Evers has identified that it may be unfairly prejudicial to his client. What I had in mind in that regard was an order limiting the use that could be made of the passages to being evidence of his state of mind as at 20 January 2020 and as evidence of the intensity or depth of his feelings toward Ms Howlett. In that regard the jury would be directed that it was impermissible for them to use the passages as evidence that Mr Weaver had an actual intention to kill Ms Howlett or hurt any other person or that he presented a real threat in that regard. 5. Mr Evers argues that as Mr Weaver is standing trial for murder, the introduction into evidence of a statement that he would kill or hurt anybody could be extremely prejudicial and which prejudice may not be cured by the type of direction I have outlined. The learned Crown Prosecutor argues that given it is expected that Mr Weaver when arraigned before the jury panel will plead guilty to manslaughter, the jury will be aware that he is prepared to accept responsibility for that very serious form of homicide and will understand that there is no prospect of him being released into the community if they acquit him of murder because they are not persuaded he is guilty of that most serious offence beyond reasonable doubt. 6. I am of the view, notwithstanding the persuasiveness with which Mr Evers has put the argument on behalf of Mr Weaver, that this is pertinent evidence which ought to be before the jury because it does demonstrate the depth of his feelings. It demonstrates the depth of his jealousy about Ms Howlett and that this aspect of his state of mind is capable of being a factor motivating him to powerful actions. When I say it demonstrates, I acknowledge that I really mean it is capable of demonstrating to the satisfaction of the jury those things. Those questions are matters for the jury. Certainly s 137 of the Act gives me an evaluative power to exclude evidence which is otherwise admissible, but it does not permit me in the exercise of that power to usurp the proper function of the jury. 7. I must say in coming to these conclusions, as I have said more than once, I am influenced by the consideration that these are Mr Weaver's own words. This is how he has chosen to express himself about these very matters which are central to the issues in this trial. I am also of the view that a direction can be fashioned in clear terms which explains to the jury the limited use to which these statements may be put by them and in that regard I again acknowledge the fundamental precept that juries do follow legal directions and also the consideration that modern jurors are likely to be sophisticated, educated people who are capable of nuanced thought and who are capable of understanding that language bears more than one meaning and that evidence is likely to have on occasions more than one purpose. 8. As a corollary of that, I think they will understand when it is explained to them that certain evidence is admitted for only a limited purpose. For those reasons I rule under s 192A of the Evidence Act that the disputed passages set out in this judgment are admitted subject to s 136 of the said Act. ********** Amendments 18 May 2022 - Publication restriction lifted at the end of the trial 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