R v Willcockson

HIS HONOUR: Patrick Craft has been called to give evidence in the Crown case. In short, the Crown contends that Mr Willcockson went to Mr Craft’s home following the shooting that caused the death of Paul Davy. The Crown alleges that Mr Willcockson said things in the presence of a number of people, including Mr Craft, to which Mr Craft has referred in one of the statements he provided to the police. The Crown now contends that Mr Craft has failed to give evidence in accordance with his statements and that the evidence he has in fact given is accordingly unfavourable to the Crown. The Crown has therefore sought leave to question Mr Craft as though it were cross-examining him in accordance with s 38 of the Evidence Act 1995. I granted that leave. These are my reasons for doing so.

It is for present purposes convenient immediately to set out the version of events that appears in Mr Craft’s statements to which Mr Craft has relevantly failed to adhere in his evidence given in this trial. Mr Craft’s statements are dated 26 November 2023 and 27 November 2023. Paragraph 11 of the earlier statement is in these terms:

Paragraphs 3 and 7 of Mr Craft’s later statement are in these terms:

Mr Stewart of counsel for Mr Willcockson opened the case to the jury with preliminary remarks to the effect that his response to the Crown case, and the basis upon which he offered to plead guilty to manslaughter, would be that although he was holding the gun that discharged a cartridge that killed Mr Davy, the discharge of the firearm was accidental in the sense that he did not fire it intentionally and did not do so with an intention to kill Mr Davy or to cause him really serious injury. It will be immediately apparent that Mr Craft’s version of events given to the police at paragraph 7 of his later statement is arguably at odds with Mr Willcockson’s accidental discharge defence and his failure to maintain it when giving evidence before me is unquestionably unfavourable to the Crown.

Mr Stewart at one point sought to contend that Mr Craft had not actually given evidence that was unfavourable to the Crown so that the circumstances informing the application for leave pursuant to s 38 had not arisen. That argument was not ultimately pressed. That appears to me to be an uncontroversial concession: Mr Craft’s failure to give evidence in conformity with his later statement, but instead to give a version inconsistent with it, qualifies as evidence that is unfavourable to the Crown. For example, but without being exhaustive, the following evidence given by Mr Craft clearly inspired the current application:

On the application of the Crown, Mr Craft was given an opportunity to attempt to revive his memory in the face of an alleged inability to remember material consistent with paragraph 7 of his later statement. In my opinion, having seen and heard Mr Craft’s responses to questions asked in that context, he clearly failed genuinely to do so. In my observation, Mr Craft was actively attempting to avoid giving any evidence in court that was adverse to the interests of Mr Willcockson.

At one point an issue arose as to whether Mr Craft genuinely had no memory of the events on 22 November 2023, either by reason of the passage of time, his long-term ingestion of methamphetamine or cognitive impairment following a traumatic brain injury. My attention was drawn to the decision of Ridgeway v R [2024] NSWCCA 85 in which a witness gave evidence that she heard an accused say something in the nature of an admission. The witness admitted that she had given a statement to police that she had heard the accused say this but later asserted that her statement was a lie. In the present case Mr Craft agreed that he gave his two statements to police but did not assert that what he said to them was false. In contrast to the position in Ridgeway, Mr Craft only maintained that he had no present recollection of the matters referred to in his statements, not that what he had told the police was always untrue.

Mr Stewart ultimately conceded that the evidence that the Crown wished to adduce as if in cross-examination of Mr Craft was admissible for the purposes nominated by the Crown but that it should be excluded on discretionary grounds in accordance with s 192(2)(b) of the Act. He did not suggest that s 137 had any application. In my opinion, nothing arising on this application or more generally in the context of these proceedings would make it unfair to either Mr Willcockson or Mr Craft to grant leave to the Crown under s 38. It may be accepted that doing so may be inimical to Mr Willcockson’s forensic interests but that is entirely different to the question of whether it would be unfair. Moreover, having regard to Mr Willcockson’s foreshadowed defence, the importance of the evidence in relation to which the leave is sought is extremely high: see s 192(2)(c) and (d).

So far as concerns the existence or possibility of any unfairness to Mr Craft, I am not satisfied that he was afflicted with any condition that would appear to have adversely affected his capacity to assemble and relate events within a matter of days of the events to which his statements refer. Indeed, the form and content of the statements that Mr Craft gave to the police is thorough and detailed and bespeaks an acute ability to recall events and to relate them to investigating officers in a precise and considered fashion. I am not able to conclude that Mr Craft’s memory of events now is such that he is unable to give evidence with respect to the statements that he gave in November 2023.