R v Cairney (No 11)

Cases Cited: Bugg v Day (1949) 79 CLR 442
R v Aldridge [1990] 20 NSWLR 737
R v Castaneda (No 2) [2015] NSWSC 979

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: Nil.

EX TEMPORE JUDGMENT (REVISED)

1. As I have said in other interlocutory rulings, Mr Cairney is charged with the murder of Mr Smith. The Crown case against him is that, during an ongoing disputation between the two, Mr Cairney stabbed Mr Smith, inflicting a single stab wound to Mr Smith’s upper chest just above the collar bone. This stab wound resulted in a severed artery causing a massive loss of blood resulting in Mr Smith's death very soon thereafter.

2. In the course of Mr Cairney’s voluntary interview with police, it is common ground that Mr Cairney raised matters of self-defence. To put it in a somewhat potted fashion, the account given by Mr Cairney to police was that, in the final fatal confrontation, Mr Smith came at him with a knife, and that Mr Cairney perceived it necessary to stab Mr Smith to defend himself.

3. It will also be put that, in that final confrontation, Mr Cairney’s response in the circumstances as he perceived them, was reasonable or proportionate to the threat. I am, in saying this, paraphrasing the requirements of the law. Of course, it is well known that it is for the Crown to negative self-defence when it is fairly raised on the material to be put before a jury, as it is in this case.

4. Mr Jay Constable is giving evidence, and he is mid-cross-examination. Mr Constable has only a relatively small part to play in the trial. By way of background, there are arguably three important phases to the confrontation that ensued between Mr Cairney and Mr Smith over the afternoon and early evening of 18 December 2022 which ended with Mr Smith being fatally stabbed. Mr Constable spent a large part of the day in the company of Mr Smith when he was, on his account, helping Mr Smith search for his missing F100 utility motor vehicle. He was also present at the first phase of the confrontation, which occurred on an area in front of premises at Turner Esplanade. That is a grassy area usually referred to in the evidence as “the common”.

5. Mr Constable, on his account, was not an active participant in the confrontation between, on the one hand, Mr Cairney and his de facto partner, Ms Ponfield, and Mr Smith on the other, but he was certainly present for a good part of that confrontation. There was also, at the least, a verbal confrontation between Mr Constable and Mr Cairney.

6. Mr Constable is a witness who was formerly unknown to the Crown and defence, but his involvement in this matter came to light on 23 November 2024 when it was before me and a jury in Wollongong. His late involvement in the investigation was the substantial reason for the discharge of the jury then.

7. In all of the important details that go to making up the primary facts in dispute in this case, Mr Constable, at least according to his police statement, gave significant evidence in relation to a particular detail which, at that time, Ms Climo of counsel appearing for Mr Cairney, relied upon to establish that when Mr Smith attended the premises at Turner Esplanade at around 5.30pm on the fatal day, having spent time in Mr Constable's company in search of Mr Smith’s missing vehicle, Mr Smith had with him a bottle containing a quantity of a petroleum product, as the Crown opened it, in the nature of two-stroke, being a flammable fluid. Part of Mr Cairney's case is that threats were made then, either expressly or by implication, to set the house, which he mostly shared with Ms Ponfield, alight.

8. Having given that long introduction, as I have said, Mr Constable is currently under cross-examination. This morning, Ms Climo has put questions to Mr Constable in relation to his convictions for driving whilst disqualified. The course of the cross-examination commenced with questions about non-disclosures to police about the earlier peregrinations of him and Mr Smith on 18 December 2022. In his statement to police and so far in his evidence, Mr Constable maintained that he and Mr Smith were travelling by bicycle. Ms Climo has put to him that in fact, for part of the day at least, he was driving a motor vehicle belonging to a friend of his, Mr Kearns. She now wishes to put to Mr Constable that he has convictions for driving whilst disqualified and similar offences. In particular, having put to him that he was disqualified from holding a driver's licence on 18 December 2022 (which he seemed to accept), and having sought from him an admission that he was driving on that date (which he said he could not remember), she asked him a question along the lines of, "You have many convictions for driving whilst disqualified, don't you?". I only purport to capture the substance of learned counsel’s question. At that point, the learned Crown Prosecutor objected, and a voir dire in relation to the matter has been going on for some time.

9. I have to say that to some extent I have been the author of its prolongation by raising the old case of Bugg v Day (1949) 79 CLR 442 (Bugg v Day), which set counsel on a more extensive search for relevant authority than was probably necessary in all of the circumstances, and I take full responsibility for that loss of court time. Ms Climo relies upon the credibility rule exception under s 103 of the Evidence Act 1995 (NSW) (Evidence Act). Section 103 of the Evidence Act is in the following terms:

103 Exception: cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

10. Section 103(2) refers to matters to which the court may have regard for the purpose of s 103(1), I interpolate, in the event of an objection, as has occurred here. Those factors, which are not exhaustive, are:

…

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and

(b) the period that has elapsed since the act or events to which the evidence relates were done or occurred.

11. I apprehend that the focus of the cross-examination will be on the circumstance encapsulated in paragraph (a) under s 103(2), given the failure of Mr Constable to mention driving on 18 December 2022 when he made a statement to police, together with the consideration that every statement made to police contains an acknowledgement that its contents are true and that the maker of the statement appreciates that he or she may be liable to prosecution if the contents of the statement are knowingly false.

12. In substance, the argument before me has been whether a string of eleven convictions for driving whilst disqualified may substantially affect Mr Constable's credit within s 103(1) such that the jury can be asked by counsel for the defence to entirely disregard all of his evidence apart from those portions of it which are objectively verified or corroborated, such as by the CCTV footage which they will be shown.

13. I will note that ‘substantially’ is not a term defined by the Evidence Act. It therefore carries its ordinary English meaning, except to the extent qualified by its context within the Evidence Act and the purpose of the Act itself. In R v Castaneda (No 2) [2015] NSWSC 979, Wilson J said (at [17]-[21]):

“Evidence which could be important, or of real and persuasive significance, when assessing the reliability of statements made by [a witness or other person] must be capable of substantially affecting the assessment of [that person's] credibility.”

14. Her Honour went on in that same passage to point out that the context in the case is important in terms of assessing significance. Her Honour explained how, in that case, the record of the deceased's convictions for domestic violence made evidence of those convictions relevant to his female partner's defence of self-defence when she stabbed the deceased. One can see the obvious significance in context, I observe.

15. As I have said, perhaps the central issue in relation to this material is what is contained, in some detail, in Mr Constable's statement about the reasons why he can recall the event and, in turn, deny that Mr Smith was carrying the potential Molotov cocktail to Turner Esplanade on the fateful afternoon of 18 December 2022.

16. Having said that, very properly, all that Mr Constable has said in his oral evidence in chief is that when they arrived at the premises by bicycle, Mr Smith was carrying nothing by hand. It is a matter for the cross-examiner as to whether the question of the juice bottle containing the petroleum product will be explored in his evidence.

17. I don't propose to go through the authorities in detail. The essence of the law has been refined through my discussions with Ms Climo and Ms Ratcliffe, Crown Prosecutor. Although I was disposed to disagree, I accept, for the reasons given by Hunt J (as his Honour then was) in R v Aldridge [1990] 20 NSWLR 737 (R v Aldridge) (at p 741) that Dixon J's approach to the question of whether traffic convictions went to credit in Bugg v Day was not a majority opinion. It is not necessary for me to say any more about that.

18. Hunt J also emphasised (at p 742) as Ms Climo reminds me, that Bugg v Day was a civil case and that there may be a difference in the application of the provisions of the Evidence Act between what is appropriate in a civil case and what is appropriate in a criminal trial, given the importance of the different issues in a criminal trial. I should also say that Bugg v Day and R v Aldridge were both decided when the question of cross-examination as to credit was governed by s 56 of the Evidence Act 1898 (NSW) (Repealed) (the 1898 Act), not the current Evidence Act.

19. I am prepared to accept the submission of Ms Climo that convictions for driving whilst disqualified, driving whilst never licensed, driving whilst a licence was suspended or the like are of a greater relevance to a person's credit than what might be referred to as mere breaches of traffic regulations, the subject of the judgment of Dixon J in Bugg v Day. I do observe in passing that, in the particular circumstances of that case, his Honour thought cross-examination as to those matters was permissible. I need not go into the reasons why.

20. A long line of convictions of the type, as I am told Ms Climo can prove in this case, is the very type of thing which is likely to reflect poorly on a person's creditworthiness, to the extent it manifests a complete disregard for one's personal obligations and, indeed, the law. Accordingly, persons with a long line of convictions of that type are often treated by the courts as people who regard themselves as above the law.

21. I would say that even had Dixon J's analysis carried the day in Bugg v Day, convictions for that type of offending would have been covered by the dictum his Honour pronounced (at p 467):

“…I think the better view is that at common law a conviction of a witness for an offence could not be used for the purpose of discrediting him if the offence was not of such a nature as to tend to weaken confidence in the credit of the witness, that is to say in his character or trustworthiness as a witness of truth. Traffic offences cannot often fulfil this condition.”

22. The other members of the Court who formed the majority were of the view, given the terms of s 56 of the repealed 1898 Act, that any conviction could be made the subject of cross-examination, subject to a judicial discretion to exclude it.

23. Given that it is the Crown case that all of these events which occurred on 18 December 2022 are important in understanding the probabilities of what occurred between Mr Cairney and Mr Smith in the backyard of Turner Esplanade when Mr Smith was fatally stabbed, I am of the opinion that Mr Constable's evidence may be of some importance in the context of the whole case. For that reason, the cross-examination as to his credit as proposed by Ms Climo satisfies the requirements of s 103 of the Evidence Act.

24. I will allow the question objected to.

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