R v Weaver (No 11)

The case of R v Weaver (No 11) involved the defendant, Weaver, being prosecuted for a criminal offence. The prosecution sought to adduce evidence from a witness who had given an unfavourable account of events that would be adverse to the defendant's case. The defendant, in turn, made an application to cross-examine this witness under section 38 of the Evidence Act 1995 (NSW), which allows for such cross-examination if the witness is “unfavourable”. The matter was heard by the Supreme Court of New South Wales.

The legal issue before the court was whether the witness was sufficiently “unfavourable” to warrant the defendant’s right to cross-examine under section 38. The court needed to determine the threshold for a witness to be considered “unfavourable” and whether the evidence presented by the prosecution aligned with this standard. The defendant argued that the witness's testimony was significantly adverse to their case and therefore met the criteria for cross-examination. The prosecution contended that the witness’s testimony, while not entirely favourable, did not reach the level required to invoke section 38.

The court found that the witness’s evidence was indeed adverse to the defendant's case, to the extent that it could be considered unfavourable. The court emphasised the importance of the witness's credibility and the impact of their testimony on the defendant's case. It was held that the witness's account, which conflicted with key aspects of the defence's narrative, met the statutory threshold for being “unfavourable”. As a result, the court granted the defendant’s application to cross-examine the witness under section 38.

The final order of the court was that the defendant would be permitted to cross-examine the unfavourable witness as per the provisions of section 38 of the Evidence Act 1995 (NSW). This decision allowed the defendant to challenge the credibility and reliability of the witness's evidence, which was deemed crucial to their defence strategy.