R v Weaver (No 4) [2022] NSWSC 602

Supreme Court New South Wales

Medium Neutral Citation: R v Weaver (No 4) [2022] NSWSC 602 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, 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

EXTEMPORE jUDGMENT (REVISED) 1. I am continuing the process of making preliminary rulings on disputed passages in letters written by Mr Weaver to Ms Howlett in the weeks and months after the alleged murder of Mr White on 20 December 2019. 2. Counsel have further reduced the issues between them in respect of these documents. I commend them for their efforts and I'm grateful to them for the conciliatory spirit that both have brought to bear in relation to resolving these issues. There are six passages which remain in dispute. Those six passages are spread across letters dated 31 January 2020, 7 February 2020 and 8 February 2020. To a large extent the representations, the subject of the debate, are repetitions of material which I have largely admitted over the objection of Mr Evers of learned counsel for the accused. 3. I will summarise his argument in a moment, but it's important I think to set out in full the first of the disputed representations which appears on page 4 of a letter of 31 January 2020 at the foot of the page. This is in the following terms, and again I will seek to add necessary punctuation to make the syntax clear: "I look at your photo, but every time I do, I only think about the kitchen incident and the sound of you getting fucked hard. Thanks. Thanks, you ripped my heart out. I wish I knocked you both then, but I was too slow and just missed catching you by two seconds. So, I would of (sic) probably been doing time for two murders that I actually did, not this bullshit that I didn't. At least then I could accept it." This is clearly a repetition of matters I have admitted. The kitchen incident referred to is said to have been an act of sexual intercourse between Ms Howlett and Mr White in the kitchen of Mr White's home unit, on the Crown case, on the very day that Mr Weaver was released to his parole to serve the balance of a term of imprisonment in the community. From earlier representations about it I have already ruled as admissible, the jury would be entitled to conclude, but may not, that it had a deep and lasting effect upon his feelings. 1. The real point of Mr Evers' objection about this passage and in respect of which he invokes s 137 of the Evidence Act 1995 (NSW), is the reference to doing time for two murders. Mr Evers argues in substance, and I mean no injustice to the care with which the argument was put, that the danger here is the appearance of Mr Weaver admitting a preparedness to murder two people in retribution for what he regarded, by reference to other of the representations already the subject of rulings, as the betrayal of him by Ms Howlett. Mr Evers submits that Mr Weaver denies guilt of the murder of Mr White with which he is charged, and he maintains his plea of not guilty on the basis that I have explained in previous judgments. 2. I accept that the apparent willingness to engage in revenge killings for acts of sexual betrayal is a factor which is capable of prejudice toward Mr Weaver in a jury's thinking. Again, however, the evidence is tendered for the purpose of demonstrating, as I have said already, how deeply Mr Weaver was affected by his belief about the kitchen incident. The expression that he would be doing time for two murders is really an expression that emphasises the extent of his affectation by his belief about that matter. 3. I am again, in relation to this matter, influenced in my thinking by the consideration that this is Mr Weaver's own account of his depth of feeling freely proffered in his own words, and in language of his own choosing. I do regard it as evidence which is capable of having significant probative value. I have acknowledged its capacity for engendering a degree of prejudicial thinking on the part of the jury. As I have ruled in respect of other representations, I am of the view that that risk of prejudice can be appropriately ameliorated by directions from me about the use to which this evidence and evidence like it can properly be put. In particular, I would direct the jury that the statement cannot be taken as evidence that Mr Weaver is a man who would be prepared to commit a double murder. Obviously, he formed the belief of which I have spoken at the time the incident occurred and he did not react in the way that this letter suggests he would have had he caught Ms Howlett and Mr White in the actual sexual act. Rather, the statement that he would be doing time for two murders once again goes to the depth of his feeling, feelings which he still experienced at the time he wrote the letter at the end of January 2020. 4. I will also say as I have discussed with counsel during argument, that what is to be made of each of these representations including this representation is quintessentially a jury question. There are two sides to the argument and the jury will hear both sides to the argument as to what should be made of this representation, in addition to the direction I have in broad terms outlined I would give. 5. As Mr Evers would have it, the representation says nothing probative about Mr Weaver's state of mind on 20 December 2019 but is really the product of his ruminations, that is as he might express it, the result of his "doing head miles" while in custody and only speaks to his state of mind when he wrote the letter and not otherwise. 6. The Crown's side of the argument is, as I have indicated already, as he is still deeply affected by his belief about that incident at the end of January 2020, it is highly persuasive evidence of how he must have felt on 20 December 2019. 7. I repeat, these are questions for the jury's evaluation. These are questions which the jury's experience of life and its collective wisdom well equip it to resolve in accordance with the directions of law that will be given. I rule that this representation is admissible. 8. Representation 2 for the purposes of this judgment is contained on page 2 of a letter of 7 February 2020. It is a repetition of an earlier representation which I ruled admissible about a text message Mr Weaver found on Ms Howlett's phone. He repeats the conclusion he jumped to from reading the text message that she must have been in bed with the deceased when she wrote that text message. I have already ruled that a substantially very similar text message is admissible. Repetition does not necessarily add to probative value but nor does it necessarily increase the potential for prejudice, and I propose to allow the representation to be put before the jury. I note for the purpose of this judgment that there are introductory remarks on page 1 of that letter which Mr Evers submits puts the contentious representation in context and I record that the Crown agrees that so much of those introductory remarks as Mr Evers requires should be included in the document prepared to put this representation before the jury. 9. Representations 3, 4, 5 and 6 are contained in a letter of 10 February 2020. I interpolate that the letter of 7 February 2020 is headed, "My final letter," and concludes interestingly, "My last bad letter." The letter of 8 February 2020 commences, "This letter is better. No more bad letters after this, okay?" Those matters I think perhaps indicate that it will be open to the jury to think that Mr Weaver was experiencing something in the nature of an emotional rollercoaster ride. 10. In any event, representation 3 is on page 1 of the letter of 8 February and it is a repetition of his beliefs about the kitchen incident. It also raises mental agitation about some lingerie that another person allegedly bought for Ms Howlett and repeats his beliefs about the sexual relationship between Ms Howlett and the deceased. Again, there is a good degree of repetition as I have said although it is not entirely repetitious. For reasons I have already given, I do not regard the effluxion of time as being decisive of the question of admissibility either under s 55 or for the purpose of s 137 and I propose to allow the representation to be put before the jury. 11. Representation 4 is on page 3 of that same letter of 8 February 2020. It again should be set out in full. It is in the following terms: "I love you more than anything in this world. You mean everything to me. I would kill over you and to hear all these things, witness all these things on your phone, to hear and see what was going on in the kitchen…" It is difficult to correct the syntax because other matters which it is agreed should be withheld are necessary to complete the construct. However, the concern here which distinguishes this representation from some of the others is of course the expression "I would kill over you." Mr Evers submits that that is likely to be a matter which could prejudice the jury charged with the responsibility of deciding whether he is guilty or not guilty of the murder of Mr White for motives of sexual jealousy. I accept the concern that counsel has over that matter, but I need to emphasise and repeat what I have said a number of times, that this is not extraneous material engendering a risk of prejudice. This is a document of which Mr Weaver is the author expressing in his own words how strong his feelings are for Ms Howlett and describing them in that way is powerful. 1. But in my opinion, they are relevant, and I would regard the real forensic risk to be that it is damaging evidence in the sense that it is highly probative, rather than it being evidence which is, in terms of the statute, unfairly prejudicial. It is not an admission of guilt of the murder of Mr White. By that I mean it is not an admission that he killed Mr White with intent. But it is certainly evidence which proves a highly relevant state of mind on his part. In my opinion, its probative value outweighs the risk of unfair prejudice. 2. Representation 5 is on page 4 of the same letter. It is a repetition of the text message representation and repeats the same conclusion that Mr Weaver drew which is the subject of previous representations which I have admitted. For the same reasons, I will admit it. 3. Representation 6 is on page 5 of the same letter. It again is a repetition of his beliefs about the kitchen incident and concludes with the statement: "I can't stop thinking about it 24/7". I am satisfied that it is relevant, admissible evidence. It is to some extent repetitious, but the concluding sentence is capable of demonstrating, if the jury accepted it as such, that, to use another expression, that his belief about the kitchen incident continued to eat away at him weeks after Mr White's death and months after the occurrence of the kitchen incident. In my submission, its probative value does substantially outweigh the risk of unfair prejudice. I will admit representation 6.