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Weatherston v R

Weatherston v R

Case [2011] NZCA 276 17 June 2011

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA648/2009
[2011] NZCA 276

BETWEEN CLAYTON ROBERT WEATHERSTON
Appellant

AND THE QUEEN
Respondent

Hearing: 6 April 2011

Court: O'Regan P, Chambers and Randerson JJ

Counsel: R M Lithgow QC, N Levy and M Lillico for Appellant
C L Mander and M F Laracy for Respondent

Judgment: 17 June 2011 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Table of Contents

Para No

The killing of Sophie Elliott [1]

Issues on the appeal [5]

Did statements made in the media during the trial render it unfair? [13]

Was X’s evidence and the evidence given by Dr Weatherston

in cross‑examination inadmissible?
X’s evidence  [52]
Dr Weatherston's cross-examination  [55]

Was X’s evidence and the evidence given by Dr Weatherston

in cross‑examination used inappropriately by the prosecutor? [63]

Should the Judge have given “a hybrid propensity/lies direction”? [68]

Was the Judge’s propensity direction appropriate? [76]

Did the prosecutor by his conduct cause a miscarriage of justice? [87]

Crown expert  [89]
Cross-examination of the accused  [91]
Duty to put the case concerning the knife  [94]
Conclusion  [102]

Should the photographs of Ms Elliott’s wounds have been admitted? [103]

Result [106]
Postscript [107]

The killing of Sophie Elliott

On 9 January 2008 Sophie Elliott was killed in her own home in Dunedin. Death resulted from multiple stab wounds. The killer was Clayton Weatherston, the appellant. He was Ms Elliott’s former lover.
Dr Weatherston was calm when the police arrived. He admitted killing Ms Elliott. He gave as the reason “the emotional pain that she [had] caused [him] over the past year”.
Dr Weatherston was charged with murder. At his trial in June and July 2009, he admitted being the killer, but said he had been provoked. He said that Ms Elliott had attacked him with a pair of scissors and that he had thereafter lost self control. Defence counsel accordingly submitted to the jury that the proper verdict was manslaughter.
The jury convicted Dr Weatherston of murder. He now appeals against that conviction.

Issues on the appeal

Mr Lithgow QC, for Dr Weatherston, advanced seven grounds of appeal. The first was that Dr Weatherston had been denied a fair trial as a consequence of various statements made in the media during the trial. Although the trial Judge, Potter J, had attempted to deal with these, he submitted that the negative publicity was of such a character that no judicial direction could counter it.
The second ground of appeal related to evidence given by X,[1] a former lover of Dr Weatherston, and certain parts of the cross-examination of Dr Weatherston. As to the former, the Crown led evidence of an incident where Dr Weatherston had hit and kicked X. Everyone accepts that evidence was admissible. In cross‑examination, however, X referred to Dr Weatherston having tried to blame her for the incident, something she just “couldn’t believe” and something she thought “remarkably unfair”. Mr Lithgow submitted that evidence was…

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 Weatherston v R

Details

AGLC: Weatherston v R [2011] NZCA 276
Case: [2011] NZCA 276
Decision Date: 17 June 2011

CaseChat Overview and Summary

Clayton Weatherston appeals against his conviction for the murder of Sophie Elliott. The appeal is dismissed. Weatherston's trial took place in a highly publicised environment, including the airing of a television interview with Dr Warren Young, Deputy President of the Law Commission, and articles in the Listener magazine. Weatherston's counsel submitted these events rendered the trial unfair. The Court found no evidence that any juror saw or read the publications in question. Even if a juror had read the Listener articles, the articles' tone was balanced and cerebral. They did not comment in any way on the Weatherston trial. The Court found no basis for speculation that the jury did not follow the Judge's directions. The appeal failed on this issue. The Court then considered whether certain evidence was inadmissible. The Court held that evidence of Weatherston hitting and kicking a former lover, X, was admissible. The Court rejected submissions that evidence of Weatherston's cross-examination and X's response to that cross-examination was inadmissible. The Court held that the prosecutor was entitled to challenge the truthfulness of Weatherston's account and that the prosecutor's cross-examination and final address to the jury were not inappropriate. The Court rejected submissions that the Judge should have given a specific direction to the jury. The Court also rejected submissions that the prosecutor's conduct caused a miscarriage of justice. The Court rejected the submission that photographs of Ms Elliott's wounds should not have been admitted. The appeal is dismissed. The Court acknowledged the professionalism of Weatherston's trial lawyers.

Orders