R v Cairney (No 7)

Legislation Cited: Children (Criminal Procedure) Act 1987 (NSW) s 15A
Criminal Procedure Act 1986 (NSW) ss 142-144, 146-148
Evidence Act 1995 (NSW) s 38

Cases Cited: R v Cairney (No 3) [2024] NSWSC 1513
R v Cairney (No 6) [2024] NSWSC 1550

Category: Procedural rulings

Parties: Rex (Crown)
Paul John Cairney (Accused)

Representation: Counsel:
K Ratcliffe with S Allan (Solicitor Advocate)
(C Taylor with S Allan appearing on and after 23 June 2025 and Mr Allan appeared alone on 27 June 2025) (Crown)
S Climo (C Feiner appearing on and after 24 June 2025) (Accused)
Solicitors:
Solicitors for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s): 2022/381365

Publication restriction: Section 15A Children (Criminal Proceedings) Act 1987 (NSW) applies to the identity of two witnesses.

EX TEMPORE JUDGMENT (REVISED)

1. Since Monday 19 May 2025, I have been dealing with outstanding pre-trial evidential issues prior to the empanelment of the jury in this matter, in which Mr Cairney will stand trial for the murder of the deceased, Mr Jason Smith.

2. Mr Cairney, when previously arraigned before me in this Court, has pleaded not guilty to that charge.

3. It is common ground, as I detailed in previous rulings, that a central issue at the trial will be whether the legal justification of self-defence is available to Mr Cairney. I remind myself that there is evidence which I need not detail now which will be led before the jury laying a foundation for that issue and, in those circumstances, the legal onus of negativing that issue beyond reasonable doubt lies upon the Crown.

4. A jury was previously empanelled to determine the case on 21 November 2024 at Wollongong, and I was then the trial judge. I discharged the jury on 25 November 2024 for reasons I explained in my judgment in R v Cairney (No 3) [2024] NSWSC 1513 (R v Cairney (No 3)**). Shortly put, the reason for the jury discharge was the late service, after empanelment, of a statement dated 23 November 2024 by Mr Jay Constable, a witness, which contained material evidence in several respects. I described and summarised that evidence at [22]-[25] of R v Cairney (No 3).

5. Without descending into the whole of the circumstances, up until the point of the service of Mr Constable's statement, the Crown Case Statement, required to be disclosed under s 142, had referred to an unidentified person being in the company of Mr Smith when he attended the premises central to this trial on the afternoon of his death. All references to legislation in this judgment are references to the Criminal Procedure Act 1986 (NSW) (the Act) unless otherwise specified.

6. Both parties had, up until 20 November 2024 or thereabouts, proceeded on the basis that that person was unidentified because efforts to identify him had been unsuccessful. The trial was proceeding on the basis that that person was not available to give evidence at the trial and what his evidence might be was entirely unknown to both parties.

7. In discharging the jury, I formed the view that the evidence disclosed by the very late served statement of Mr Constable materially altered the prosecution case and, in important respects, was contrary to facts put in the Crown opening and, if accepted, tended to undermine a significant factor relied upon by Ms Climo in relation to the issue of self-defence that she identified for the jury in her opening.

8. Mr Constable's statement covers a lot of ground, most of which, in my opinion, is of peripheral relevance to the main issues. It is clear that he was not present during the final confrontation between Mr Cairney and Mr Smith which resulted in Mr Cairney fatally stabbing Mr Smith. However, Mr Constable does describe attending the relevant premises in the company of Mr Smith once only.

9. For present purposes, the salient aspects of Mr Constable’s statement are at paragraphs [12], [13] and [23]-[24]. While I will not read them out in full, in my assessment, it is quite clear, reading the whole of the statement of Mr Constable fairly and in context, that his evidence was expected to be that he attended the premises in the company of Mr Smith on the fatal afternoon of 18 December 2022. He was present when Mr Smith knocked on the front door of the premises which was answered by, with no disrespect, a middle-aged female, whom I infer was Mr Cairney's partner, Ms Sandra Ponfield. Soon after, Ms Ponfield called out to Mr Cairney who also emerged from the inside of the premises before, inter alia, the first phase of the confrontation involving Mr Smith and Mr Cairney commenced. Mr Constable makes no mention of any other attendance at the premises that day.

10. A further significant matter for the purpose of this judgment is the prosecution had served a statement from [the protected witness] (whose name should henceforth not be published by virtue of s 15A of the Children (Criminal Procedure) Act 1987 (NSW)). [The protected witness] apparently told investigators two things of some materiality to the defence case. The first is that Mr Smith and Mr Constable attended the premises twice. On the first occasion when they attended, [redacted] Sandra Ponfield and Mr Cairney were not home as they were at the shops. Also, on that first occasion, [t****he protected witness] told investigators, Mr Smith was carrying a juice bottle which later, after analysis, was found to contain some petrol or petroleum product of a combustible quality.

11. It is apparent from [the protected witness’] statement to investigators that [the protected witness] was also present within the premises on what [the protected witness] regarded as the second attendance of Mr Smith and his companion. [The protected witness] did not know and did not identify Mr Constable attending on either occasion. [The protected witness’] account that there were two attendances is confirmed because [the protected witness] filmed part of what [the protected witness] would describe as the second attendance from an upstairs window of the premises when there was the confrontation that I have already referred to.

12. The second part of Mr Constable's statement of 23 November 2024 is a representation by him in response to specific questions he was asked at paragraphs [23] and [24] of the statement. There Mr Constable stated he did not see Mr Smith carry any petroleum product at the premises when they were both there. I interpolate that matter was represented by Mr Constable because he had been approached about four weeks before the commencement of the trial in Wollongong by a person who one would infer was Ms Sandra Ponfield, who raised the subject with him. As I have said, it was Mr Constable’s statement, principally, although there were other matters, that led to the discharge of the jury, the adjournment of the trial and the eventual change of venue from Wollongong to Sydney.

13. More recently, two developments have occurred. The first is, as is normal practice of all counsel preparing for a trial, the Crown Prosecutor conferenced witnesses leading up to the trial, including Mr Constable on 9 May 2025. During the course of that conference, Mr Constable, in answer to specific questions put to him by the Crown Prosecutor, first, confirmed what I would regard as necessarily implicit in his statement of 23 November 2024, that he only attended the premises once on 18 December 2022.

14. Secondly, in response to the Crown Prosecutor’s question, "Did you ever see a young girl from the premises?", Mr Constable answered, "No". Once again, I observe in passing that that too was necessarily implicit in his statement of 23 November 2024. Mr Constable’s statement is five pages in length comprising 25 paragraphs setting out a full account of his general antecedents, how he came to meet Mr Smith on 18 December 2022 and their peregrinations that afternoon, including the events at the relevant premises. He also gives an account of his knowledge of the aftermath of the homicide of Mr Smith and, as I have said, an account of developments that were recent to the making of his statement.

15. The learned Crown Prosecutor informed me from the Bar table, and I accept, that given what I have said about the conference of 9 May 2025 in accordance with the Director of Public Prosecutions' guidelines, she recommended a supplementary statement be obtained by police from Mr Constable. That was done by the officer-in-charge of this investigation, Detective Sergeant Brent Piggott, on 15 May. It was duly served on that date.

16. As Ms Climo of learned counsel points out, and as the prosecutor acknowledges, it is obvious that although Sergeant Piggott obtained a three-page statement setting out effectively a transcript of questions and answers, including the attachment of a number of still photographs taken on 18 December 2022 depicting Mr Constable passing various CCTV cameras in the vicinity, he failed to deal with the issues that the Crown Prosecutor asked about on 9 May 2025.

17. An email disclosing that relevant portion of the conference between the Crown Prosecutor and Mr Constable was not served until 4:46pm of the 20 May 2025, contained within an email sent by the prosecutor's instructing solicitor to, I assume, Ms Climo’s instructing solicitor.

18. I have gone into this issue in some detail because Ms Climo has made an application under the provisions of s 146 of the Act that I direct that the prosecution be prohibited from relying upon the material served on 20 May 2025.

19. I should also say this, notwithstanding the service of Mr Constable's first statement during the trial in Wollongong, my reasons for discharging the jury and my judgment of R v Cairney (No 6) [2024] NSWSC 1550 in relation to the change of venue subsequently ordered, no amendment was made to the Crown Case Statement following the service of Mr Constable's first statement. The question of whether the Crown Case Statement required amendment was a matter Ms Climo raised earlier this week, on 19 May 2025. This was attended to by the prosecution and informally served in court yesterday afternoon on 20 May 2025. At that time, it was apparent that there was no highlighting used to demonstrate the changes the prosecution made in what is quite a detailed document, although the Crown Prosecutor did indicate where material changes had been made. This morning, a fresh document entitled "Amended Crown Case Statement" with relevant highlighting was provided to the Court and to counsel for the accused.

20. It is, I think, important to point to the changes in relation to the case which Ms Climo relies upon in support of her application. Paragraph [13] of the Amended Crown Case Statement states:

“… around 5.30pm the deceased and an unknown male knocked on the door of the relevant premises.”

The unknown male of course is now known to be Mr Constable. The statement goes on to recite the facts that I have referred to earlier in this judgment that, in the absence of Ms Sandra Ponfield and Mr Cairney, [the protected witness] opened the door and stated they were not home. That was not the only interaction with [the protected witness] at that time. After [the protected witness] closed the door, there was a further knock on the door and Mr Smith had a further conversation with [the protected witness] and, according to [the protected witness], [the protected witness] noticed the deceased was holding a juice bottle at the time which, as I have said, was subsequently identified as containing a petroleum product. It is obvious that the source of that information at [13] of the Amended Crown Case Statement was obtained from [the protected witness].

21. The Amended Crown Case Statement is, so far as is in contention, as follows. At [13], attributable to [the protected witness], is the attendance of the deceased and the person now known to be Mr Constable. Mr Constable asked some questions about Mr Smith's missing car, and it is not necessary at this stage to say anything further about that. [The protected witness] told the police in [the protected witness’] interview that Mr Constable was holding what may have been a bottle of alcoholic drink and Mr Smith was holding a juice bottle in his hand, being the same juice bottle that I have referred to previously.

22. I set out [14]-[15] of the Amended Crown Case Statement now in full:

“The anticipated evidence of Jay Constable is that he did not see or speak to a young girl at 20 Turner Esplanade and he recalls only going to the front of the premises on one occasion that day and Sandra Ponfield emerged from the house. The deceased did not have anything in his hand, including a juice bottle, when they went to the front of 20 Turner Esplanade.

The Crown case is that [the protected witness] is mistaken about answering the door to Jay Constable and about the deceased holding the juice bottle at some stage which was later discovered by [Sandra Ponfield] on the bin.”

This change, on Ms Climo's submission, is important in many respects. One is that Ms Climo raised earlier this week, and before the email of yesterday afternoon, the tension, contradiction or conflict, as it could be described, between the accounts of Mr Constable and [the protected witness]. It was in this context that Ms Climo pointed out that no fresh Crown Case Statement had been served and she, not unreasonably I interpolate, inquired in open court how the Crown intended to reconcile or otherwise deal with that apparent conflict. It was at that time that the Crown Prosecutor, I think I may be permitted to say, having taken a moment to consider the question, answered that it may be necessary to make an application.

23. Ms Climo and I understood that the Crown Prosecutor was referring to an application to cross-examine [the protected witness] under s 38 of the Evidence Ac**t 1995 (NSW) (Evidence Act) and, on 20 May 2025, a notice was provided to Ms Climo's instructing solicitor to that effect. Among the matters to be the subject of the application for cross-examination were, paraphrasing, whether the deceased was carrying the juice bottle, and whether Mr Constable was present at the front door when [the protected witness] opened the door. It is inherent in that second matter that the Crown case, as the Amended Case Statement now asserts it, is that Mr Constable was not there at any time when [the protected witness] opened the door, rather, he was only there once when Sandra Ponfield opened the door.

24. Part of the basis of Ms Climo’s application, as I understood from what had been submitted to me, is the need to hold the prosecution strictly to its disclosure obligations and an explanation of the difficulties the defence face if that does not occur. I must say, from what was put to me, I did not understand Ms Climo to articulate any particular forensic disadvantage in the conduct of the trial constituted by the late service of the additional material relating to Mr Constable’s evidence or the provision of the late Amended Crown Case Statement. Obviously, that statement, if accepted, may undermine only one limb of the self defence argument that the accused’s counsel wish to propound in as much as the existence of the inflammatory fluid carried the possibility of activating a belief on the part of Mr Cairney that when he stabbed Mr Smith he did so with the belief that his conduct was necessary to defend himself and other members of the household from a threat of danger by fire.

25. In any event, there is no doubt that s 142 of the Act sets out in detail the content of the prosecutor's obligation of disclosure. Section 143 deals with the reciprocal obligations of the defence, and there is a provision in s 144 permitting a reply, as I will call it, from the prosecution. It is quite obvious, from s 147 of the Act, were it not otherwise obvious, that disclosure is an ongoing obligation, and, as I have said, s 146 provides for sanctions in the event of a breach of the obligation of disclosure. Section 148 empowers the Court to waive any pre-trial disclosure requirements, but only if the Court is of the opinion that it would be in the interest of the administration of justice to do so.

26. Clearly, I have not ruled upon the s 38 application presaged by the notice, and it has not been ventilated before me. Rather, its existence provides context for my decision. As I have already indicated in these reasons, I am of the view that the key aspects of the late Amended Crown Case Statement were necessarily implicit in Mr Constable's statement of 23 November 2024, served on the defence then. I repeat, it is clear from reading Mr Constable’s statement that he states he attended the premises once only, and when he did so, the door was opened by Ms Sandra Ponfield. As I have said more than once already, there is nothing on the face of his statement of what happened while he was at the premises, nor any suggestion, that he ever had any interaction with [the protected witness] or even saw [the protected witness] at the premises. In the statement, he also clearly says that Mr Smith did not have a container of petroleum, to his observation, at any time when Mr Constable was at the premises, and provides contextual evidence for why he has that recollection. This recollection is first expressed, like the rest of his recollections, nearly two years after the events.

27. It follows that I am of the view that the information elicited by the Crown Prosecutor at the conference was only confirmation of what, to me, was tolerably obvious when the statement was served. Frankly, and with no disrespect intended to the officer in charge, he may have missed the point of the request that a further statement be obtained from Mr Constable. This is because, although the further statement provides much more detail as to Mr Constable's peregrinations, as I have said, on the afternoon of 18 December 2022, it contains very little, if anything, of particular relevance to the central issues in these proceedings. It is also difficult to see how that statement contains representations which might tend to prove, either directly or indirectly, a fact in issue in the proceeding, but I have not heard from the parties about relevance.

28. As I have said, counsel for the accused is entitled to raise issues of compliance with the continuing duty of disclosure with the Court, and the orderly conduct of the proceedings depends upon the parties complying with their obligations under the Act*.* However, in the absence of some real forensic prejudice, as opposed to the prejudice of adverse evidence being introduced, which is always present in any litigation, I am not of the view that the interests of the administration of justice require me to preclude the prosecution from relying upon evidence supporting those paragraphs, to which I have referred, of the Amended Crown Case Statement.

29. To the extent necessary, I waive the non-compliance of the prosecution with its disclosure obligations. In the circumstances where the second statement was obtained following a conference, which typically in the administration of criminal justice takes place close to the trial date, I am satisfied by the Crown Prosecutor's explanation. The non-disclosure in that regard is a matter of about six days. It seems that the statement of 15 May 2025 was promptly served when it came into existence, and it is to be very much regretted that the Crown Case Statement was not amended at some earlier date after Mr Constable's first statement became available. However, with no disrespect whatsoever intended to learned defence counsel, she was alive to the issue, in fact, she raised it. I am satisfied that the conflict or contradiction in the evidence is not a matter that she cannot deal with in the conduct of the trial, and in particular, by the cross-examination of witnesses.

30. In these circumstances, I refuse the application.

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