R v Weaver (No 7) [2022] NSWSC 605

Supreme Court New South Wales

Medium Neutral Citation: R v Weaver (No 7) [2022] NSWSC 605 Hearing dates: 12; 13; 14; 19; 20; 21; 22; 26; 27; 28 April 2022 Date of orders: 28 April 2022 Decision date: 28 April 2022 Jurisdiction: Common Law Before: Campbell J Decision: Part of witness statement allowed; Part of witness statement rejected Catchwords: EVIDENCE – opinion evidence – exceptions – lay opinion Legislation Cited: Evidence Act 1995 (NSW), ss 76, 78, 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

EXTEMPORE Judgment (REVISED) 1. The Crown intends to call Ms Karly Gow. Her statement of 30 December 2019 has been admitted on the voir dire as exhibit 3. There is a contentious passage in the statement at paragraph 16. I will simply say that Ms Gow is called as an, essentially, corroborating witness to the evidence of Ms Reagan Rideout, which was, in any event, not seriously challenged. 2. The passage commences with a narrative that Ms Rideout called her into her bedroom at the house they apparently then shared, and when she was on the telephone to a person, Ms Rideout put the telephone on loudspeaker and Ms Gow heard a male voice. The contentious passage consists of this sentence: "The male sounded like he was pretending to cry. It seemed really weird." 3. Later in the statement, Ms Gow goes on to give a narrative of what she heard the person she then identified as Mr Weaver say in terms of denying any involvement in the death of Mr White, who is Ms Rideout's father. 4. The evidence will be sought to be introduced under s 78 of the Evidence Act 1995 (NSW), which creates an exception to the opinion rule established by s 76. The s 78 exception applies in respect of what is normally called lay opinions. Lay opinions are admissible if two conditions are satisfied. The first is that the opinion is based upon what the person saw, heard or otherwise perceived about a matter or event. The second is evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. 5. I do not think there is any doubt that the first condition is satisfied. That is to say that the opinion that the male sounded like he was pretending to cry was based upon what Ms Gow heard. The real question is whether it is necessary to obtain an adequate account of her perception to allow that to be said. 6. I certainly accept that ordinary people can often give opinions about the emotions being expressed by others or by another person. I am concerned, however, about the expression, "Pretending to cry". Everyone is familiar with what is most often referred to as crocodile tears, when a person is exhibiting significant sadness insincerely. Often that expression depends upon not only what you hear but what you see of the person's demeanour at the time. 7. I am prepared to accept that "pretending to cry", although it does not sound necessarily like Ms Gow's language and perhaps has been expressed in that way by the person who created the document, may well be a lay opinion. I accept that it may be difficult to express what were the actual perceptions received by the sense of hearing that caused that impression to be formed. I would, however, reject, "It seemed really weird", as not being the expression of opinion that is necessary to obtain an adequate account or understanding of the person's perception. 8. The question then becomes whether or not that evidence of the shedding of false tears should be excluded under ss 135 or 137 of the Evidence Act on the basis that its probative value is substantially outweighed by the danger the evidence may be unfairly prejudicial. 9. I must say I am of the view that the probative value of the opinion is slight. It is obvious that the account given by Mr Weaver and, at times, Ms Howlett, is completely false. So much has been admitted, at least by necessary implication, by Mr Weaver pleading guilty to the lesser alternative count of manslaughter. The jury themselves will be alive to that salient consideration, and doubtless are already alive to it, having heard evidence from other witnesses. 10. The question then becomes whether it is unfairly prejudicial to have that evidence. Unfair prejudice normally refers to a danger that evidence will be misused by a jury in some relevant way. It does not seem to me that the evidence that Ms Gow formed an opinion that tears were being shed insincerely adds much to the danger of prejudice that might arise from the circumstance that there will be ample evidence before the jury that Mr Weaver attempted to cover his tracks by giving a false account to a number of people after the killing of Mr White. 11. In the circumstances, I am not of the view that the evidence, while it may be prejudicial in the forensic sense in as much as it may weigh against Mr Weaver, is unfairly prejudicial or it is evidence that the jury are likely to misuse. 12. Initially I was concerned about the nature of the opinion expressed and whether it would usurp the function of the jury in deciding for itself the complexion it should put upon evidence of the conduct of Mr Weaver. But having looked at the statement, I am not so sure that is correct. As I say, I reject the expression that she thought it was weird. That says more about her state of mind than anything else, but I will allow evidence to be elicited that her impression was that real tears were not being shed, from what she heard.