R v Weaver (No 5)

[2022] NSWSC 603

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Weaver (No 5) [2022] NSWSC 603
Hearing dates:	12; 13; 14; 15; 19 April 2022
Date of orders:	19 April 2022
Decision date:	19 April 2022
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I refuse the Crown’s application and direct that Ms Howlett give evidence in the usual way in the presence of the jury from the witness box.
Catchwords:	EVIDENCE – witness evidence – application for witness to give evidence via audio visual link – application refused
Legislation Cited:	Nil
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. Ms Howlett is Mr Weaver's former partner and in the judgments I gave last week in relation to preliminary evidential rulings, the nature of their relationship was discussed. I also discussed the expectation that she would be giving evidence on behalf of the Crown and that she has received the leniency which is usually extended to persons who render valuable assistance to the authorities, when she was sentenced for the offence of being an accessory after the fact to the murder of Mr White. The sentencing judge was RA Hulme J.

2. From what I know of the case, I am aware that Ms Howlett has a number of issues which might increase the anxiety people often feel, if not everyone, when they are coming to court to give evidence in serious criminal trials. It is unnecessary for me to detail them for the purpose of this judgment. For that reason, the Crown has made an application that she should be permitted to give her evidence remotely and the learned Crown Prosecutor has drawn an analogy between complainants in domestic violence or sexual abuse cases and the position of Ms Howlett.

3. There is some suggestion in the material I had to examine last week for the purpose of the other rulings that there were abusive aspects to the relationship between Mr Weaver and Ms Howlett. Although the analogy has some validity, my own view is that it is not sufficiently strong to justify making an order that Ms Howlett should give her evidence by AVL, given that she is available, she can come to Newcastle and arrangements can be made so far as they are appropriate to make her feel as comfortable as may be justified in coming to give evidence.

4. In making this decision I have borne in mind that Mr Weaver is facing the most serious charge known to the criminal law, other than treason. In that regard, although it is my obligation to ensure a fair trial for both parties, there is a particular obligation on me in a murder case to ensure that the usual safeguards that an accused person is entitled to enjoy are fully observed. In that regard, the right to have a trial in open court and to have the accusations made against him made publicly by his accusers is a very important aspect of the rules of natural justice so far as they apply to a serious criminal trial.

5. Although there is much to be said either way, as there so often is in matters of practice and procedure, I am of the view that Ms Howlett ought to give her evidence in open court in the usual way. I am content that there be a support person present in court from whom Ms Howlett can derive reassurance in terms of a familiar face being present in what might be an unfamiliar environment.

6. There is also an issue about whether there is likely to be any strife between her and Mr Weaver's family. I treat her apprehension with respect, but there is no material before me which would make me apprehensive that this might occur. I am told that Mr Weaver's mother will be a witness in the Crown case and indeed Mr Costello has opened in that way to the jury. I am told that Mr Weaver Senior was in court today and I saw a gentleman who would probably fit that bill sitting in the back of the court during the opening addresses of counsel. He seemed to conduct himself in an entirely appropriate manner while he was here in court. I am also told that he has never met Ms Howlett.

7. In all the circumstances I am of the view that I should refuse the Crown's application and I direct that Ms Howlett give evidence in the usual way in the presence of the jury from the witness box.

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Amendments

19 May 2022 - Publication restriction lifted at the end of trial

Decision last updated: 19 May 2022