R v Cairney (No 8) [2025] NSWSC 705 | Case summary | Zoe

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R v Cairney (No 8) [2025] NSWSC 705 | Case summary | Zoe

I am ruling upon the admissibility of certain expert evidence which has come to light since the matter was before me in Wollongong last year when the jury was discharged.
As my earlier judgments ruling on evidential and related incidents in this matter indicate, Mr Cairney is charged with the murder of Mr Smith on 18 December 2022 by stabbing him around the area of his upper chest.
While there are many details in dispute, the basic facts are not in dispute. The central issue in the matter is the legal justification of self-defence, and particularly whether the Crown can negative self-defence. That arises from several matters, including the explanation given by Mr Cairney when he consented to being interviewed by police on the evening of 18 December 2022. It also arises out of facts preceding the homicide, captured on various video recording devices including, importantly, what has been referred to as the dashcam footage recorded in a car parked on the footpath or nature strip adjacent to the place where certain events occurred.
Without going over the ground exhaustively, there are two particular incidents preceding the homicide. The first occurred on the Sellers Crescent frontage of the residence of Turner Esplanade, and the second, some short time later, on the Turner Esplanade frontage of that property. Both incidents involved a degree of violence which were mostly recorded in the CCTV and dashcam footage to which I have made reference.
When the matter was before me on 10 April 2025, the defence sought to raise a new issue for determination on the voir dire in relation to the admission of further enhanced footage and stills generated by Mr Grant Johnston, a consulting engineer. Both parties accept Mr Johnston has expertise in processing the footage in the way that he did. The issue was unresolved on that day, largely because of the late service of Mr Johnston's report and the short opportunity enjoyed by the Crown to consider and deal with the matter.
The way the argument was put need not be traversed now, but essentially Ms Climo of learned counsel who appears for Mr Cairney was seeking a direction in relation to the content of the Crown's opening. No direction was given on that day because the argument was adjourned.
In the meantime, the Crown approached Mr Johnston and sought his assistance in the generation of other enhanced stills from the footage for use in this case. This is a generalisation of what transpired, but it is sufficient for present purposes.
Apart from what I have referred to in the course of my discussion with counsel this afternoon as the silver car or white cord incident, with respect to which I have indicated I would permit the defence to introduce into evidence the enhancements by Mr Johnston, a whole series of photographs have been produced on each side of the record by Mr Johnston, and not uncontroversially, the large measure of which contain stills showing, from the Crown's point of view, Mr Cairney armed with various offensive weapons, and likewise his partner Ms Ponfield for that matter.
In the case of Mr Cairney, in what has been referred to as the Sellers Road incident, there is a baseball bat and, in the Turner Esplanade incident, there are various items including: a short length of metal, a U-shaped steel object (which I am told is part of the structure of a table including its legs), and also the knife (which the Crown say was the weapon Mr Cairney used to fatally stab Mr Smith). The stabbing itself is not shown on the footage, although the immediate aftermath of it is.
From the defence point of view, the selection of stills includes, and in large measure, images of Mr Smith holding items which he used as a weapon against Mr Cairney at different times, being evidence in relation to him striking Mr Cairney with what appears to be a long piece of steel during their fight when they were both armed with makeshift offensive weapons.
At the commencement of this afternoon's proceedings, I indicated that, having had the opportunity to consider all of the material in chambers, I had formed certain provisional views which I shared with counsel, but will not repeat. However, I notionally incorporate them by outlining my provisional views into this judgment.
My provisional view was that I would allow the enhancements in relation to the white cord or silver car incident, referred to variously, but not otherwise. That is to say, I propose to exclude both the Crown material showing various images of Mr Cairney armed with and using various offensive weapons and I would also exclude like images of Mr Smith from the defence tender. In the former case, under s 137 of the Evidence Act 1995 (NSW) (Evidence Act), and in the latter, under s 135.
The Crown is prepared to accept my provisional view being hardened to a ruling. Ms Climo presses the tender, as it were, of the defence stills over and above the silver car incident material. Her submission is that the Crown material relates to primary facts not really in dispute, whereas the defence material relates to primary facts in dispute, and, indeed, relates to what is effectively an element the Crown must prove beyond reasonable doubt by negativing self-defence. For that reason, that material should go in.
I am not sure whether there is any difference between the two. What the Crown wish to rely upon seems relevant to me, not just to the primary or basic elements of murder, but necessarily, to the question of self-defence, given the chronology of events on the afternoon of 18 November 2022. I accept that the defence material is also relevant to that.
My concern, however, as I expressed earlier, is that inviting the jury to focus upon a large number of stills taken from the video images is apt to mislead them. One has to get the whole flavour of the events so far as they are captured by the video evidence to garner an appreciation of what is happening in its full context. The fact that the primary sequence of events itself may not be in issue except for the central event of the stabbing of Mr Smith is not to the point, because it is well-established that the Crown is entitled to lead evidence on factual matters to provide a full narrative, whether or not every fact the subject of that narrative is in dispute. Likewise, of course, the defence is entitled to fully test the Crown evidence and, if defence counsel so chooses, to introduce a positive case in answer to the prosecution's case, notwithstanding the consideration the defence has no obligation whatsoever to do so.
My concern in relation to the matter is, other than in relation to the silver car or white cord incident, the video footage is very clear, and, frankly, it speaks for itself. There is no real forensic purpose that I can understand that requires the jury to - in addition to watching the video evidence, which they will have access to in the jury room, which they can view, rewind, fast forward and focus on parts as they wish and think are important - have the still images that the parties wish to put before them.
Necessity is not the test, of course. However, while the images pass the test of relevance in s 55 of the Evidence Ac**t, and therefore are prima facie admissible, I am of the view that their probative value, given the absence of real dispute and the availability of the source material such as the video footage, is outweighed by unfair prejudice on either side of the record.
So far as the Crown is concerned, it would seem there is something of weight in the Crown's argument that if the jury are to focus upon various images of Mr Smith in various poses, wielding or holding offensive weapons, that provides a skewed view of circumstances when, during the course of these events, Mr Cairney himself, both on the Sellers Street frontage and the Turner Esplanade frontage, was armed. The only way the jury will get a true picture, if I can put it that way, of what is happening is to see the video, form an understanding of the interaction between the two men, and make up their own minds about the essential elements of the charge brought against Mr Cairney.
For those reasons, I propose to exclude the still images sought to be tendered by each of the parties. However, I will allow the enhanced video prepared by Mr Johnston, at the request of the defence, in relation to the silver car or white cable incident.