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[2026] NSWSC 46
General information, not legal advice.
Supreme Court of NSW
2026-02-10
Harrison AJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Willcockson [2026] NSWSC 46
Hearing dates: 06 and 09 February 2026
Date of orders: 09 February 2026
Decision date: 10 February 2026
Jurisdiction: Common Law - Criminal
Before: Harrison AJ
Decision: Grant leave to the Crown pursuant to s 38(1) of the Evidence Act 1995 to question Patrick Craft as though in cross-examination.
Catchwords: EVIDENCE – witness evidence – unfavourable witnesses – application by the Crown under s 38 of the Evidence Act 1995 (NSW) to cross-examine an unfavourable witness – whether leave should not be granted because of unfairness to the accused
Legislation Cited: Evidence Act 1995 (NSW), ss 38, 137, 192
Cases Cited: Ridgeway v R [2024] NSWCCA 85
Category: Procedural rulings
Parties: Rex (Crown)
Luke Willcockson (Accused)
Representation: Counsel:
C Young (Crown)
D Stewart (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Ross Hill & Associate Solicitors (Accused)
File Number(s): 2023/427883
Publication restriction: Nil
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:
“11. On Thursday 22nd November 2023, I can’t remember exactly what I did, however, I would’ve been at home or out helping with the ride-share business. I never really paid much attention to what Luke and Ashley would get up to. I was home during the early evening. I don’t recall if anyone was home with me at the time. Michael knocked on my front door. It was daylight still but later in the day, getting on night-time. Michael said, ‘Is it alright if I leave the ute here for a couple of days’, I wasn’t happy, but I said, ‘Yes’. I haven’t been happy with Michael for some time because of the way he’s treated Julia. I hadn’t expected Michael to turn up that night. I hadn’t seen him for weeks prior. I went and looked out the back window of my unit and saw a black Ford utility on a car trailer which was attached to Julia’s blue Hyundai Santa Fe. I didn’t go outside. When I looked outside, I saw Michael was un-hitching the trailer. There was another person with him, but I didn’t pay attention to who it was. It definitely wasn’t Ashley or Luke with him. If it was someone, I knew I would say but I don’t know who they were. Michael took maybe ten minutes to leave. When I looked out again, I saw the Ford ute in the driveway, the blue Hyundai parked on the roadside and the car trailer was gone which I thought was very strange. I figured Michael must’ve jumped in another car and left with the trailer. I don’t remember talking to Michael, Luke or Ashley that night. I went out that night to do some ride-share jobs. When I left to go do jobs nobody was home, and I locked the house up. I always leave the key outside on the balcony when I leave in case Luke gets home and needs it to go inside.”
“3. On 26th November 2023, I provided a signed statement to Plain Clothes Senior Constable Mark Jackson. I withheld certain things and have since remembered other things. I have been in fear of being called a ‘dog’ and the repercussions of giving a statement. I’ve had so much in my head and with the frontal-lobe damage I struggle to put everything I hear, together. I was remembering things last night and it was upsetting me, and I was struggling to sleep. I drove to Laurieton Police Station today and saw Plain Clothes Senior Constable Mark Jackson leaving the station. I called out to him. I said, ‘I’ve had time to think about it and want to tell you more’.
...
7. When Michael arrived, Luke and Ashley arrived too, I’m not sure if they had arrived together but I guessed they probably did. As Luke entered the unit with Ashley he walked through the loungeroom towards his bedroom. I was sitting at the table in the loungeroom. Luke said, ‘I shot him ... Pauly’s gone’, I put my fingers in my ears immediately and said, ‘I don’t wanna know, shut the fuck up’. It was kinda surreal. It was hard to believe. As I took my fingers out of my ears, Luke continued, ‘Pauly was going off and he said to me, “You won’t shoot me, go on shoot me then”, so I did.’ I couldn’t believe it. I thought he might’ve been joking because he was so calm. Ashley didn’t say a word. Luke and Ashley went into his room and laid down and closed the door. I didn’t speak to them again that night.”
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:
“Q. All right, I appreciate - does that mean you don't remember the exact words?
A. Yeah, not sure about the exact words but.
Q. Can you give me the rough idea or the rough gist of what was said?
A. Yeah. Well I do have a thing called frontal lobe damage which affects a few different things, brain damage.
Q. I appreciate you telling us about those conditions--
A. So I can't recall everything.
Q. Sitting here today, do you remember any of the words or the gist of the words that were said?
A. Something about "no more Pauly".
Q. Who said that?
A. Luke did.
Q. "No more Pauly"?
A. Yeah.
Q. Did he say what had happened to Pauly?
A. He said "shot him".
Q. Just to confirm, that was Luke that said--
A. Yeah.
Q. --"shot him"?
A. Yep.
Q. Was there anymore discussion about what had happened with Pauly?
A. Not much. I remember sticking my fingers in my ears, said "I don't want to know anymore.
Q. You said "I don't want to know anymore"?
A. Yeah.
Q. Was anything else said?
A. I can't recall, sort of too long ago.
CROWN PROSECUTOR: Would your Honour excuse me, I just want to chat with my friend.
Q. You made two statements to police in this matter, is that right?
A. Yeah.
Q. Your first was on 26 November in 2023?
A. Yes.
Q. So four days after this attendance at your house?
A. Yep.
Q. You recall you made a second statement the day after?
A. Yes.
Q. I want to show you a copy of that second statement. Do you recognise that as a statement you signed and dated on 27 November 2023?
A. Yes.
Q. You've told us about some memory issues. Was your memory of what happened when they attended your house at North Haven better back then on 27 November--
A. No.
Q. --2023?
A. It'd be much the same.
Q. All right.
A. Yeah, I've had it for a long time.
Q. You might have had those memory issues, but was your memory of the conversation better five days after rather than sitting in court today?
A. Yeah.
Q. I want you to go--
A. Suppose so.
Q. --and find on page 2, paragraph 7 for me and you let me know when you've got it?
A. Yep.
Q. Paragraph 7 is what you're telling us about. I don't want you to read it out loud. I'd like you if you can to read it to yourself and let me know when you've done that? Have you had a chance to read that?
A. Yeah, yes.
Q. Having read that, can you assist us with what Luke said to you about what had happened?
A. I read stuff and it doesn't quite compute, so yeah, because I can't recall him telling me what happened but reading that, it sounds like he did.
Q. Right.
A. Yeah.
Q. Were you doing your best to tell police the truth when you gave this statement?
A. Yeah, definitely.
Q. Having read that, do you accept it's the truth?
A. Yeah, close to it, very close. If it's not the full truth, it's very bloody close.
Q. Accepting it's the truth and it's close, can you tell the jury what Mr Willcockson said to you?
A. I can't remember the conversation to be honest with you, about the conversation after he just came in the door and that. Something about "No more Pauly, shot him".
STEWART: Could we discuss a matter in the absence of the jury, your Honour?”
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.
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R
Willcockson [2026] NSWSC 46