R v Weaver (No 8) [2022] NSWSC 606

Supreme Court New South Wales

Medium Neutral Citation: R v Weaver (No 8) [2022] NSWSC 606 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: Allow the admission of the disputed passage to the extent detailed in [3] of this Judgment. Catchwords: EVIDENCE – opinion evidence – exceptions – lay opinion Legislation Cited: Evidence Act 1995 (NSW), s 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 trial

EXtempore Judgment (revised) 1. I have already dealt with an application to admit lay opinion evidence from a Ms Gow. I am now asked to admit what is said to be lay opinion evidence from a Mr Griggs. I have set out the conditions under s 78 Evidence Act 1995 (NSW) in that previous judgment, I will not repeat them. 2. Mr Griggs' statement of 23 December 2019 is exhibit 4 on the voir dire. The contentious paragraph is para 21 which contains observations about Ms Howlett's demeanour on the afternoon of 20 December 2019. I have just said in discussion with counsel that there is a difference between lay opinion which meets the conditions in s 78 on the one hand, and speculation on the other. There is also a difference between admissible lay opinion and what I might refer to as secondary conclusions that say more about the witness's processing of information than about what the witness perceived. Paragraph 21 contains a mixture of those different matters. I will read the paragraph out: "The whole time I spoke with Yolanda, she appeared agitated and looked worried. She was very fidgety and was looking around a lot. She was acting strange. She kept trying to get me to believe everything she was saying; like she had a guilty conscience and she didn't know how to behave. I had known her for so long and this was the first time I had seen her behaving this way. She was visible (sic) very intimidated by Scott. She appeared very frightened of him, she was being very careful around him." 1. Doing the best I can to sort out the various strands of the various concepts that I have referred to, I am of the view that the first two sentences satisfy the s 78 conditions. I am also satisfied the statement that, "She appeared very frightened," likewise satisfies those conditions. The middle section in my opinion really says more about Mr Griggs' processing of information rather than the impression that what he saw, heard, or otherwise perceived of Ms Howlett's behaviour had on him. He says nothing about Mr Weaver being intimidating or being frightening, and those statements to that effect, the last two sentences, other than perhaps the impression that she was very frightened, again are really speculative on the part of Mr Griggs rather than admissible lay opinions that satisfy the conditions in s 78. 2. The matters which I have ruled are admissible in my view are not to be excluded by the operation of either ss 135 or 137 of the Evidence Act.