R v Weaver (No 10) [2022] NSWSC 621

Supreme Court New South Wales

Medium Neutral Citation: R v Weaver (No 10) [2022] NSWSC 621 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: Grant leave to the Crown under s 32(3) for the disputed passage to be read by the witness as part of his evidence. Catchwords: EVIDENCE – witness evidence – refreshing memory – in court – application under s 32 of the Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 1995 (NSW), s 32 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 dealing with a contested application under s 32(3) Evidence Act 1995 (NSW) for Mr Steven Durocher to read out part of paragraph 14 of his police statement of 5 January 2020, which has been admitted as exhibit 5 on the voir dire. Although Mr Evers has not contested a previous application in relation to a different part of the statement, he contests this application. 2. It is necessary to read it onto the record: "We drove down Henry Parry Drive into North Gosford. They pointed out a driveway and some units on the left where they wanted us to go. I drove down the next roundabout and came back and we turned into the side street and went around the block, past the North Gosford Private Hospital. Scott and [Yolanda] were arguing out of control about where to park and what to do. Scott was really aggressive. He said, 'You're reason I'm in this shit in the first place'". 1. The Crown contend that the relevance of the evidence is the last sentence and the statement directly attributed to Mr Weaver. It is contended that this is an admission at least by implication, or to put it more properly, it would be reasonably open to the jury to find that this was an implied admission by Mr Weaver at least of his involvement in Mr White's death. I think I also understand that the submission runs to motive in as much as Mr Weaver also says, "You're the reason I'm in this". 2. Mr Evers opposes the matter's admission. He effectively argues that it is not reasonably open to find that this is an admission by Mr Weaver because the statement even in the context provided by the preceding sentences is just too vague to be probative of any fact in issue in this case. The expression "this shit" which is the only expression to describe the subject of the statement that Mr Durocher would attribute to Mr Weaver is just too indeterminate and could be a reference to any number of circumstances including simply the inconvenience of having to attend the premises at all. 3. I am not of the view that I should accede to Mr Evers' objection. I am satisfied that the statement in the context of the preceding paragraphs, "You're the reason I'm in this shit in the first place," is capable of being understood by the jury as an implied admission of Mr Weaver's involvement in the death of Mr White, and the reason for his involvement in that death. That is to say, an admission of his jealousy over Ms Howlett's favours. These are questions which the jury will have to grapple with, and these are questions which the jury is well positioned to grapple with. It seems to me that the preceding sentences are necessary to give context to the implied admission. It would be effectively devoid of meaning without that context. 4. I understand that Mr Evers also objects to the fact that Mr Weaver and Ms Howlett are said to have been arguing out of control and that Mr Weaver was aggressive. But these are matters which in my view a lay witness can give evidence of. The actual content of the argument is not as relevant as the fact it was occurring, they seemed to be out of control, and that Mr Weaver was aggressive at the time he made that statement. I would have thought that those matters also indicated that they were both under significant stress as they approached the scene of the crime, or at least the jury might think that, and that also is a matter for them to assess which could also provide further context. 5. I have to say in any event that Mr Weaver has made clear from the start of this trial that he accepts involvement in Mr White's death. He denies that he is guilty of murder. To the extent to which sexual jealousy is proffered as a motive by the Crown, there is other ample evidence of that already before the jury. Perhaps the value of this evidence, and that is of course entirely a matter for the jury, may be its relevant contemporaneity. 6. In the circumstances, for the reasons I have given, I grant leave to the Crown under s 32(3) for the passage I have indicated to be read by the witness as part of his evidence. I should say, as the transcript will bear out, that counsel agree that that is the appropriate approach. Given our experience with Mr Durocher as a witness this afternoon, it seems likely that reading the passage to himself will not provoke an actual recollection and that inevitably there will be a second application to have him read it. I will bypass the intermediate step and grant leave under subs (3).