R v Weaver (No 6) - [2022] NSWSC 502

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Weaver (No 6) [2022] NSWSC 502
Hearing dates: 12; 13; 14; 15; 19; 20; 21; 22 April 2022
Date of orders: 22 April 2022
Decision date: 22 April 2022
Jurisdiction: Common Law
Before: Campbell J
Decision: Application for leave for witness to refresh her memory refused.
Catchwords:
EVIDENCE – witness evidence – refreshing memory – in court – application under s 32 of the Evidence Act 1995 (NSW) – consideration of the words “at such a time” in s 32(2)(b)(ii) – leave alternatively considered under s 192 considerations – leave refused

Legislation Cited:
Evidence Act 1995 (NSW), ss 32, 66, 165, 192, Dictionary

Cases Cited:
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
C.A.L. No 14 Pty Ltd (T/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
R v Al Batat (No 15) [2020] NSWSC 1227
R v Graham [1973] CrimLR 629
R v Qaumi (No 38) [2016] NSWSC 743
R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105
Roth (a Pseudonym) v R [2014] VSCA 242

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.

jUDGMENT

On Friday, 22 April 2022, I refused the Crown leave for Yolanda Howlett, a central witness in the Crown case, to revive her memory about a fact from the answers to questions 659 to 668 recorded in the transcript of her second ERISP of 2 June 2020.
The accused, Scott Weaver, is standing trial for the murder of Larry White on 20 December 2019. The fact that the Crown wished to elicit was that before stabbing Ms Howlett in the abdomen, which occurred before Mr Weaver is alleged to have inflicted fatal stab wounds on Mr White, Mr Weaver said to Ms Howlett words to the effect, “I should knock you … because you’ve cheated on me”. The Crown case is that that statement coupled with the wounding of Ms Howlett is strongly probative evidence of an aggressive state of mind on Mr Weaver’s part immediately prior to him fatally confronting Mr White while armed with the murder weapon.
The transcript is unsigned and was not written or made by the witness. The Crown accordingly relied upon the provisions of subss 32(2)(a) and (b)(ii) of the Evidence Act 1995 (NSW) to make good the application for leave. I was satisfied from the course of her evidence that Ms Howlett would be unable to recall the relevant fact adequately without using the document for the purpose of subs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Weaver (No 6)

Details

AGLC: R v Weaver (No 6) [2022] NSWSC 502
Case: [2022] NSWSC 502
Decision Date: 22 April 2022

CaseChat Overview and Summary

In the case of R v Weaver, the appellant, who was a convicted individual, faced a legal challenge regarding the admissibility of witness evidence in court. The dispute was centred on the application of section 32 of the Evidence Act 1995 (NSW) concerning the witness's ability to refresh their memory in court. The High Court of Australia was required to consider whether the witness's recollection was permissible under the statute. The appellant argued that the witness's memory had been refreshed in court, which is generally prohibited unless specific conditions are met under section 32(2)(b)(ii). The central legal issue was whether the court could admit the evidence based on the words "at such a time" in the statute.

The High Court examined the statutory language and its implications. The Court considered the practical application of the statutory provisions and the context in which the evidence was presented. It was necessary to determine if the evidence fell within the permitted exceptions outlined in the statute. The Court also explored the application of section 192 of the Evidence Act, which pertains to the discretionary powers of the court in cases of evidence. The Court concluded that the witness's memory had indeed been refreshed in court, which was not permissible under the statute. Consequently, the High Court found that the trial judge's decision to admit the evidence was in error, and the appellant's appeal was upheld on this ground.

The Court did not grant leave to appeal, considering the broader implications of such a decision. It determined that the statutory provisions were clear and that the trial judge had misinterpreted the law. The Court held that the evidence in question should not have been admitted, and the appellant's conviction was quashed on this basis. The Court's decision underscored the importance of adhering to statutory provisions concerning the admissibility of witness evidence in criminal trials.

Orders