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Supreme Court 10 February 2026

R v Willcockson

[2026] NSWSC 46

Homicide
EVIDENCE WITNESS EVIDENCE UNFAVOURABLE WITNESSES EXAMINE AN UNFAVOURABLE WITNESS

Citation: R v Willcockson [2026] NSWSC 46
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 10 February 2026
Judge(s): Harrison AJ

Background

This decision arises in the context of a murder trial. The accused, Mr Willcockson, is charged in connection with the shooting death of Paul Davy. Through his counsel, Mr Willcockson offered to plead guilty to manslaughter on the basis that while he was holding the gun that discharged and killed Mr Davy, the discharge was accidental — he did not fire intentionally and did not intend to kill or cause really serious injury.

A key Crown witness, Patrick Craft, had provided two statements to police in late November 2023, just days after the events in question. In the second of those statements, Mr Craft described the accused arriving at his home on the evening of the shooting and making statements that, if accepted, could be characterised as admissions inconsistent with an accidental discharge. Specifically, Mr Craft told police that the accused said words to the effect of "I shot him … Pauly's gone" and recounted that the deceased had challenged the accused to shoot him before the accused did so.

When called to give evidence at trial, however, Mr Craft gave a significantly diluted account. He said he recalled only that the accused said something about "no more Pauly" and "shot him," and claimed he could not remember the fuller conversation recorded in his police statements. Even after being shown his second statement and given the opportunity to revive his memory, Mr Craft maintained he could not recall the details. The Crown applied for leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Craft as an unfavourable witness.

  • Whether Mr Craft's evidence at trial was "unfavourable" to the Crown within the meaning of s 38 of the Evidence Act 1995 (NSW), thereby enlivening the court's power to grant leave to cross-examine him.
  • Whether leave to cross-examine should nonetheless be refused on discretionary grounds, having regard to the considerations in s 192(2) of the Evidence Act, particularly the potential for unfairness to the accused under s 192(2)(b).
  • Whether Mr Craft's claimed inability to recall the contents of his police statements was genuine, or whether he was deliberately avoiding giving evidence adverse to the accused.
  • Whether s 137 of the Evidence Act (the mandatory exclusion of prejudicial prosecution evidence) had any application to the proposed cross-examination.

Decision

Harrison AJ granted leave to the Crown to cross-examine Mr Craft under s 38.

On the threshold question of whether the evidence was "unfavourable," the defence initially argued that Mr Craft had not actually given unfavourable evidence, but this argument was not ultimately pressed. His Honour considered this concession uncontroversial: Mr Craft's failure to give evidence consistent with his police statement — and instead providing a version inconsistent with it — plainly qualified as unfavourable to the Crown.

His Honour drew a distinction between the present case and the situation in Ridgeway v R [2024] NSWCCA 85, where a witness had positively asserted that her prior police statement was a lie. Here, Mr Craft did not recant or claim his statements were false; he merely said he had no present recollection of the matters they recorded. He agreed the statements were truthful — or "very bloody close" to the truth — but maintained he simply could not recall the conversations. His Honour, having observed Mr Craft's demeanour and responses during attempts to revive his memory, concluded that Mr Craft was "actively attempting to avoid giving any evidence in court that was adverse to the interests of Mr Willcockson" rather than genuinely unable to remember.

On the discretionary question under s 192, the defence argued the evidence should be excluded because of unfairness to the accused under s 192(2)(b). His Honour rejected this, drawing a clear line between a result that may be "inimical to Mr Willcockson's forensic interests" and one that is properly characterised as "unfair." The two are entirely different things. The importance of the evidence was assessed as extremely high, particularly given Mr Willcockson's foreshadowed defence of accidental discharge, engaging s 192(2)(c) and (d). Defence counsel did not suggest s 137 had any application, and his Honour saw nothing in the proceedings that would make the grant of leave unfair to either the accused or the witness.

His Honour also addressed Mr Craft's claimed cognitive difficulties (frontal lobe damage, long-term methamphetamine use). He found that the form and content of Mr Craft's police statements — given within days of the events — were "thorough and detailed" and bespoke "an acute ability to recall events and to relate them to investigating officers in a precise and considered fashion." His Honour was not satisfied that any condition had adversely affected Mr Craft's capacity to assemble and relate events shortly after they occurred, nor that his current memory was genuinely so impaired that he could not give evidence about the statements he gave in November 2023.

Orders Made

  • Leave was granted to the Crown to cross-examine Mr Craft pursuant to s 38 of the Evidence Act 1995 (NSW).

Key Takeaways

  • A critical distinction exists between forensic disadvantage and unfairness: the Supreme Court confirmed that damage to an accused's case resulting from the grant of leave under s 38 does not, without more, constitute "unfairness" within the meaning of s 192(2)(b). Specific unfairness beyond mere forensic prejudice must be identified to oppose a s 38 application.

  • Where a witness claims memory loss but does not disavow the truth of prior statements, a clear case for s 38 leave arises. Harrison AJ found that a witness need not actively recant a prior statement for the evidence to be unfavourable; evasive non-recollection, particularly where the Court is not satisfied it is genuine, is sufficient.

  • Judicial observation of witness demeanour played a significant role in the decision, as Harrison AJ concluded that the witness was deliberately avoiding giving adverse evidence rather than genuinely unable to recall. This finding was based on direct observation of the witness's responses during the memory revival exercise.

  • The quality and detail of prior statements can undermine claims of cognitive impairment. Because the witness's police statements were thorough and articulate, and made close in time to the events, the Court found that later claims of cognitive difficulties preventing accurate recall were not persuasive.

  • Under s 192(2)(c) and (d), the importance of the evidence and the nature of the proceedings weighed heavily in favour of granting leave. The Supreme Court held that where a prior statement goes directly to a central issue (in this case, the accused's state of mind at the time of the shooting) this factor strongly supports the grant of leave.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 38, 137, 192 (particularly s 192(2)(b), (c), and (d))

Cases:
- Ridgeway v R [2024] NSWCCA 85