R v Weston (No 2)

[2017] NSWSC 1384

Supreme Court

New South Wales

Medium Neutral Citation:	R v Weston (No 2) [2017] NSWSC 1384
Hearing dates:	13 – 17, 20 – 22, 24, 27 – 28 February 2017
Date of orders:	28 February 2017
Decision date:	28 February 2017
Jurisdiction:	Common Law - Criminal
Before:	Rothman J
Decision:	Application under s 135 and/or s 137 of the Evidence Act 1995 rejected.
Catchwords:	EVIDENCE – criminal proceedings – relevance and unfair prejudice – schedule of telephone records – probative as corroboration or support for some evidence of witness – highly probative – any unfairness will be countered by directions
Legislation Cited:	Evidence Act 1995, ss 55, 56, 135, 137
Category:	Procedural and other rulings
Parties:	Regina (Crown) John Richard Weston (Accused)
Representation:	Counsel: T Baily (Crown) G D Wendler (Accused)   Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Van Houten Solicitors & Barristers (Accused)
File Number(s):	2015/00181328
Publication restriction:	NON-PUBLICATION ORDER RE identity or any matter that would identify witnesses A to G

EX TEMPORE Judgment

1. HIS HONOUR: I find against the application, whether it be made under s 137 or s 135 of the Evidence Act 1995 (“the Act”), or whether it is suggested that the two entries in the schedule are not relevant. They seem to me to clearly fit the description in s 55 and s 56 of the Act, in that they directly or indirectly make more probable the acceptance of a fact in issue in the proceedings.

2. It also seems to me that the text messages, in particular the provision to the phone of Witness G of the address of the accused, is corroborative of the evidence of Witness G at page 116 of the transcript, given that the credibility and/or believability of Witness G is a crucial, if not the crucial, issue in the proceedings.

3. Its probative value as a strand in the cable, in terms of inferences that may be drawn, is extremely important, and I cannot see that it can be used unfairly.

4. In any event, all of this will be the subject of directions, and I reject the application under s 135 and/or s 137 of the Act.

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Decision last updated: 11 October 2017