R v Weaver (No 11)

[2022] NSWSC 622

Supreme Court

New South Wales

Medium Neutral Citation:	R v Weaver (No 11) [2022] NSWSC 622
Hearing dates:	12; 13; 14; 19; 20; 21; 22; 26; 27; 28 April; 2 May 2022
Date of orders:	2 May 2022
Decision date:	02 May 2022
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I grant the leave to cross-examine on the prior inconsistent statement in the terms sought.
Catchwords:	EVIDENCE – witness evidence – unfavourable witnesses – application to cross-examine witness pursuant to s 38 Evidence Act 1995 (NSW)
Legislation Cited:	Evidence Act 1995 (NSW), ss 38, 77, 192, 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 trial

Extempore Judgment (revised)

1. I made some preliminary rulings last week in relation to aspects of a statement of Mr Nikolas Griggs which the Crown could permissibly lead pursuant to my powers under s 192A of the Evidence Act 1995 (NSW). Mr Griggs has been called to give evidence today and in answer to the type of questions which were asked in an attempt to elicit from him the evidence the subject of my previous ruling, Mr Griggs has given evidence largely to the effect that his impression of Ms Howlett on 20 December 2019 is that she was significantly drug affected.

2. In his police statement made on 23 December 2019 he described his impression of her demeanour and behaviour in different terms, not tethered to his impression that she was drug affected and he described it more in terms of she was anxious, agitated, frightened, intimidated. I am not quoting precisely because the statement is not before me at the moment.

3. The Crown seeks leave to cross-examine him under s 38 of the Evidence Act and submits that the evidence that he has given so far about his impressions is unfavourable in the sense of not being favourable to the Crown because it was not in terms which the Crown expected, having regard to the signed statement and that he has previously made a prior inconsistent statement, namely the statement of 23 December 2019, to which I have referred.

4. Although it was argued that he was not making a genuine attempt to give evidence, I indicated that I did not think that had been established so far and although he is not an easy witness, I did not regard him as being uncooperative, for example, and it seemed to me that although he gave some surprising answers to start with when examined by reference to exhibits, it appeared to me that he was attempting to answer the questions accurately. It may be that he gives the appearance of a somewhat reluctant witness because he criticised his own sketch that he was shown, although he was prepared to accept it as his, but I am not satisfied that he is not making a genuine attempt at this stage.

5. Mr Evers has argued that either the conditions have not been made out for the operation of s 38 or when I have regard to s 192, I would not be satisfied that leave should be granted. He points out that Mr Griggs, like other witnesses who have given evidence, was himself a person who came out of the milieu of being a regular abuser of illicit substances and submits that I should not allow cross-examination under s 38 until his degree of affectation at the time he made the police statement is established or should require that to be explored before I permit cross-examination.

6. I am not satisfied that that would be a proper exercise of the discretion under s 38. It is well-known that the discretion under s 38 significantly expands the armoury of a prosecutor who is of course bound to call all material witnesses necessary to give a coherent narrative of the material facts of the case for the benefit of the jury. Although witnesses who have pertinent information are required to be called, the prosecutor, by virtue of s 38, is no longer bound by unfavourable answers short of “hostility”.

7. Indeed, the better view of "unfavourable" for the purpose of s 38 is simply “not favourable” and the evidence is not favourable if it falls short of the evidence which the prosecutor was entitled to expect the witness would give having regard to, for example, an earlier signed statement. I regard that as an objective standard.

8. Likewise, whether a witness has made a prior inconsistent statement is an objective standard. Not everything that does not completely accord with a signed statement will be inconsistent. The question has to be judged according to the issues to be determined in the case and the facts in issue. Part of the Crown case has always been that Ms Howlett's participation in the events which followed the killing of Mr White was under Mr Weaver's duress. That matter is very much in issue, as the cross-examination of Ms Howlett amply demonstrated. However, given that issue, it does seem to me that there was a very significant inconsistency between Mr Griggs saying Ms Howlett appeared “stoned” on the one hand and saying that she was “agitated” or “frightened” on the other.

9. Now these are mere lay impressions, but they are the type of lay impressions which may be given as lay opinions in accordance with the exception to the opinion rule created by s 77 of the Act and, as I have said, I have already ruled that evidence in the form in which it appears in the statement is admissible subject to certain other matters which I excluded.

10. In my judgment the Crown has made good the conditions which prima facie entitle it, if that is the correct expression, to a grant of leave and I am not satisfied that any of the matters mentioned in s 192 makes any difference to those matters. I must say, with great respect to Mr Evers, he did not point to anything in particular about s 192 which could make a significant difference to the exercise of the discretion, having regard to what I have said about the satisfaction of the subs (1) conditions when I invited him to do so.

11. I record that the Crown does not seek leave at this time to cross-examine Mr Griggs about matters relevant only to his credibility under s 38(2). I grant the leave to cross-examine on the prior inconsistent statement in the terms sought.

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Decision last updated: 19 May 2022