Weatherston v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,Blanchard,Tipping JJ
Judgment Date13 September 2011
Neutral Citation[2011] NZSC 105
Docket NumberSC 81/2011
Date13 September 2011

[2011] NZSC 105



Elias CJ, Blanchard and Tipping JJ

SC 81/2011

Clayton Robert Weatherston
The Queen

R M Lithgow QC for Applicant

M F Laracy for Crown

Appeal against a conviction for murder on the basis that a television interview which occurred during the trial was so prejudicial that it may have affected the fairness of the trial; and that the prosecution should have obtained leave from the trial Judge before challenging the accused's veracity by cross-examining him on what he had said in examination-in-chief — whether the criteria for leave to appeal to the Supreme Court were satisfied.

Held: In relation to the television interview by with Dr Young, the Court of Appeal dealt properly with this matter. It was unfortunate that Dr Young chose to go on television on the subject of the provocation defence while a well-publicised trial was underway in which such a defence was being advanced. But he was not commenting on Weatherston's case nor on his particular use of the defence. His statement was made on a channel with a very small audience and did not achieve much prominence. There were strong directions from the trial Judge about ignoring extraneous publicity.

The second matter sought to be raised was whether the prosecution should have obtained leave from the trial Judge before challenging Weatherston's veracity by cross-examining him on what he had said in examination-in-chief about some events which occurred prior to the day on which the offending took place. The proposed argument concerned ss37, 38 and 92 Evidence Act 2006. This argument likewise had no prospect of success. The Court of Appeal correctly interpreted and applied the Act. Sections 37 and 38 were not intended to relate to that kind of questioning of veracity and were, instead, like the old collateral issues rule, intended to stop the introduction of material outside the scope of facts directly or indirectly in issue. In any event, leave would surely have been granted. The Crown had good reason to want to challenge what the applicant had said about the incidents in question and was obliged by s92 to do so by cross-examination. The matters involved were significant and relevant and the Crown needed to be able to contradict him on them.

No arguable matter of public or general importance had been raised and there was no appearance that there may have been a substantial miscarriage of justice. The criteria for leave were not satisfied.

Application dismissed.



The applicant seeks leave to appeal against the dismissal by the Court of Appeal 1 of his appeal against a conviction for murder.


Essentially two matters are raised....

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2 books & journal articles
  • Recognising Acute Intoxication as Diminished Responsibility? A Comparative Analysis
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 76-1, February 2012
    • 1 February 2012
    ...Dargue, above n. 3.130 Quoted in Lomas, above n. 126.131 Considered below.132 J. McGeorge, ‘Weatherston v R [2011] Case Comment’ (2011) NZSC 105.133 [1989] 2 NZLR 166, (1989) 4 CRNZ 241, CA.134 [1992] 2 NZLR 550, (1992) 8 CRNZ 58, CA.135 Ibid. at [66], Cooke P.136 Brookbanks, above n. 23. A......
  • Socio‐legal Studies in Aotearoa/New Zealand
    • United Kingdom
    • Journal of Law and Society Nbr. 41-2, June 2014
    • 1 June 2014 reform is the knee-jerk reactionremoving the defence of provocation in response to the Weatherston case: seeWeatherston v. R[2011] NZSC 105 and commentary at com/2011/10/weatherston-v-r-2011-nzsc-105/>. But the idea that New Zealanders are hostile topublic intellectuals ± see, for ex......

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