R v Cairney (No 12)

Legislation Cited: Evidence Act 1995 (NSW) ss 44, 165

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. Ms Climo of learned counsel has applied for a discharge of the jury. The basis of the discharge application is a direction I gave to the jury yesterday, during Ms Climo’s cross-examination of Sergeant Cajna, a crime scene officer who carried out some of the crime scene investigation on the evening of 18 December 2022 and the morning of 19 December 2022.

2. The direction I gave to the jury commences at 608.1-609.40T. I will not set that direction out in full. The background to the direction I decided to give really commences at 602T, where I asked the jury to return to the jury room while I raised an issue with counsel, in particular with Ms Climo, who was, at that time, cross-examining the witness.

3. Sergeant Cajna's evidence commenced on 2 June 2025, and it became apparent to me at the outset that she had been engaged without objection from Ms Climo to give evidence generally about the forensic investigation covering not only her own work but the work of other officers also. During her evidence, statements of other crime scene officers were placed in her hands, and she was asked to give evidence by reference to what was written in those statements. By this process she gave crime scene evidence extending well beyond her own knowledge acquired by her own perceptions.

4. Those other crime scene officers’ statements included the statement of Detective Technical Sergeant Gibb dated 15 December 2023, marked as MFI-19, the statement of Detective Senior Constable Lyndall Robertson of 7 December 2024, marked as MFI-20, the statement of Crime Scene Officer Kirsten Johnston dated 14 November 2024, marked as MFI-21, a second statement of Detective Technical Sergeant Gibb dated 28 May 2023, marked as MFI-22, and finally, a statement of Senior Constable Prins dated 2 August 2024, marked as MFI-25. In addition, photographs taken by other crime scene officers were introduced into evidence through Sergeant Cajna.

5. Exhibit P, was a large bundle of crime scene photographs (most of which, as I understood, had been taken by either Sergeant Cajna or her colleague who was present at the same time, Crime Scene Officer Steve Watton), but additionally the photographs in Exhibits R, S, T, U, V, W and X were introduced through the witness. Portions of that material the witness had helped to compile, including a CAD plan of the crime scene, but other exhibits, such as Exhibits R, S and U were photographs taken by other officers, including Detective Technical Sergeant Gibb, without Sergeant Cajna’s input. Exhibit W was an additional grouping of seven photographs taken by the witness.

6. All of the evidence of the witness that was not the product of what she saw, heard or otherwise perceived was hearsay in its purest form, and I made an assumption, in the absence of objection by counsel, that the evidence was being introduced through Sergeant Cajna as a convenient way of introducing work carried out by the group of crime scene experts who were involved in the investigation over a number of days, both at the crime scene and at the premises controlled by the police, just as the evidence of Detective Sergeant Piggott, the officer-in-charge, was a compilation of evidence that had been gathered, not only by him, but by other officers involved in the investigation, again, as a convenient way of putting this evidence before the jury. There was no objection, as I have said, to any of the evidence-in-chief given by Sergeant Cajna on the basis of hearsay, which much of it clearly was.

7. During cross-examination of the witness, it became apparent to me that not only was Sergeant Cajna giving evidence of her own part in the investigation, and to the extent permissible, expressing opinions according to her expertise arising from the work she had carried out, but effectively, she was also being challenged, from the impression I formed whilst listening to the evidence, about the thoroughness and appropriateness of the work performed by other crime scene officers.

8. The passages of evidence, including evidence-in-chief that Ms Climo reminded me of this morning, are at 520-522T. Further passages are at 527-528T. It is not possible for me to set out all of that examination-in-chief in this judgment.

9. I then was taken to the cross-examination conducted by Ms Climo on 3 June 2025 at 596-600T, before my eventual intervention at 602T, to which I have already referred.

10. It is apparent to me from reviewing those parts of Sergeant Cajna’s evidence that, contrary to what I had understood Ms Climo’s submissions to be, there is no doubt whatsoever that the whole of that evidence relates to evidence that is hearsay in nature. In fact, it amounts to Sergeant Cajna doing no more, without objection, than relaying the evidence that other witnesses, whose statements were placed in her hands for that purpose, could give. For instance, starting at 520T, the Crown Prosecutor asked, in substance, whether there were any changes in the position of the door and window of the trailer, the property of Mr Smith, which was parked at the end of the driveway of Turner Esplanade between the time of Sergeant Cajna’s arrival at the crime scene on the evening of 18 December and Detective Technical Sergeant Gibb's arrival on 19 December 2022. The crime scene log, upon which she was also cross-examined, established that her shift had ended some hours before the commencement of the work of Detective Technical Sergeant Gibb. There could be no doubt that she was in no position to give any evidence whatsoever about changes in the position or configuration of the trailer, at least between the hours that she finished work and Detective Technical Sergeant Gibb started work on 19 December 2022. Sergeant Cajna’s answer to that question, as recorded in the transcript (although, I note that, yesterday, Ms Climo told me she thought there was a mistranscription, which has not yet been the subject of any agreement or review), was “not to my knowledge” (520.28T).

11. Now, the simple fact of the matter is Sergeant Cajna had no knowledge of that period of time she was asked about, at least leading up to Detective Technical Sergeant Gibb's attendance. The question was answered in that fashion, in a way which I consider should not be understood as meaning, ‘No’. To reiterate, as I observed during my direction to the jury, she had no knowledge or awareness of these matters.

12. It is also apparent from the succeeding questions that they were predicated upon the statement of Detective Technical Sergeant Gibb. For instance, the very next question commences, "Did he observe something?". It is quite clear that the questions proceed on the basis that Sergeant Cajna was to answer them in accordance with his statement. Over the page, at 520T, she was directed to look at photographs that he took, and she was asked whether, at the door of the trailer he, not her, observed something and her answer was “Yes, he observed it”. If there needs to be a clear example of hearsay to present to anyone, being a law student or layman, that must be it. And it continues in that fashion. Sometimes the language slips into asking the witness a question that sounds like she is being asked for her own observation, but that is, with respect, in context, only slightly loose language.

13. At 527T, Exhibit S, being photographs taken by Detective Technical Sergeant Gibb, are again placed in the witness’s hand and she is asked some questions about them, without objection, while the photographs are in the hands of the jury and displayed on the screens in court. Frankly, she is being asked to interpret photographs she did not take, taken at a time when she was not present and of an object that she never inspected. I repeat, all of these questions were asked without objection.

14. It was my understanding, as the presiding judge, that this was all being done by agreement between counsel in the interests of presentation of this evidence, rather than calling a squad of witnesses to speak of their own part in the forensic investigation, which could easily have been done.

15. The point I think is best illustrated in-chief at 528T, of which I was reminded, when the prosecutor asked this question:

“It's your understanding that these cords that can be seen in those photographs that were just shown of Detective Sergeant Gibb were seized by police during the search of the trailer?

The answer of the witness was, "I have no knowledge of that, sorry". She was not involved, and it highlighted the fact that the evidence she has given in relation to the work of other officers is entirely hearsay.

16. She was then taken to paragraph [10] of Senior Constable Robertson's statement, an officer known to Sergeant Cajna, and asked questions about what that officer did.

17. Now, in cross-examination, Sergeant Cajna was challenged about the thoroughness of the work that she did on the crime scene, and asked questions about whether she had complied with police regulations or normal procedures in respect of aspects of it.

18. At 596T, Ms Climo asked this question:

“Sergeant, you will recall giving evidence in relation to the examination of the trailer by Sergeant Gibb the day after your attendance?

A. Yes.

And you familiarised yourself with the evidence of Sergeant Gibb?

A. Yes."

In fact, as was pointed out later by the Crown Prosecutor, there was no evidence from Sergeant Gibb, only that she had access to his statement. Once again, and perhaps I have overlooked something, but I cannot think of a clearer confirmation of the consideration that the evidence given by Sergeant Cajna, in those respects, was entirely hearsay.

19. The matter continued by asking Sergeant Cajna to look at photographs taken by Sergeant Gibb and asking her, as it were, to make concessions in relation to the contents of those photographs, which were: a) in evidence; b) spoke for themselves; and c), in the hands of the jury and from which they could draw their own inferences about what was depicted and their significance. Once again, Sergeant Cajna was not being asked to give evidence from what she saw, heard or otherwise perceived; she was not being asked to express an opinion based upon her expertise, with no disrespect, such as it was.

20. Sergeant Cajna was asked this question at 598T:

“You gave evidence yesterday that there was, to your knowledge at the time that Sergeant Gibb undertook the process of photographing the trailer, that no items were removed, do you recall that evidence?”

She said, “Yes”. She is then asked, "And that was to the best of your knowledge?", and she confirmed, "Yes, to the best of my knowledge". She is next asked:

“And when you say to the best of your knowledge, did you base that off your own observation or from a statement of Sergeant Gibb?"

Her answer was, "The statement of Sergeant Gibb". The cross-examiner continues:

“And so your evidence is that Sergeant Gibb didn't indicate there was movement?

That's correct."

21. Sergeant Cajna is then asked, "You don't have an independent recollection of that?” To which she answered, “No." I interpolate that she had no recollection of that whatsoever because she wasn't there and she didn't observe anything that would possibly be capable of laying down any recollection that she could later give in evidence in a court of law, had there been an objection to the evidence.

22. At 598.40T, the following questions are asked:

“In Sergeant Gibb's statement he does not mention moving anything?

A. In Sergeant Gibb's statement he does not mention moving anything.

Q. He doesn't mention the absence of movement either?

A. Correct.”

Again, she is simply being asked what someone else said (or did not say) in a statement that is not in evidence.

23. Now, one can cross-examine under s 44 of the Evidence Act 1995 (NSW) (Evidence Act) on a representation made by another person if the court is satisfied that the representation of that person will find its way into evidence. There was no undertaking given that the statement of Sergeant Gibb would find its way into evidence or that what he observed would be otherwise proved in an admissible fashion.

24. At 600T, Sergeant Cajna was asked:

“You gave some evidence yesterday in relation to your knowledge as a result of Sergeant Gibb's statement that the trailer was removed from this location?

A. Yes."

At the risk of sounding like the proverbial broken record, this can only be hearsay. She is asked about the bagging of particular exhibits, and she says, "I believe so, yes," a clear indication that she is making no more than a statement of belief and not giving any evidence from her own direct knowledge. Doubtless that belief was based upon her knowledge of established police procedure.

25. At 605.45T, having listened to this course of evidence, I intervened, "I mean, she's aware of that because she's read the statements. She's not aware of it of her own knowledge though, is she?" And Ms Climo said, "No, your Honour".

26. Before going on, I wish to say, I'm well aware that there is an important part of the defence case that the investigation lacked thoroughness and that important evidence, for that reason, may have been missed. And it is legitimate for that issue to be thoroughly ventilated in the course of the criminal trial and left to the jury for its consideration when it is asked to retire and deliberate upon whether the Crown has proved its case beyond reasonable doubt. Nothing I said to the jury yesterday ran contrary to that fundamental consideration.

27. When I intervened at 602T, and again, I do not propose to set it out in full, I said:

“I confess to being a little uneasy about this process. I mean, I rather had the impression that, much like happened, and does happen, with Detective Sergeant Piggott at the start, that a lot of material that wasn't really contentious, that arose out of the police investigation, was being introduced through him to get it in front of the jury and move on. I mean, I had the distinct impression that Sergeant Cajna was in the same boat as she was giving evidence, if you like, a compendium of evidence, that had been put together by different crime scene officers."

28. I also observed that Ms Climo had quite properly challenged her in relation to some of the work she did which she apparently did not document properly. I observed, "It's significant" and I added:

“But I don't feel comfortable with the idea that she is cross-examined to more or less challenge her reliability by reference to someone else's reliability, and she can't answer."

29. It was put to me the cross-examination did not go to the reliability of the testimony. I do not accept that submission. It is quite clear that the cross-examination was focusing upon the adequacy of the crime scene investigation carried out by a number of officers, and to that extent, calling into question the results of that investigation as documented in their statements.

30. There will be other witnesses called, I am told, including bloodstain pattern analysts and other evidence in relation to the crime scene when some of these challenges might properly be made to a witness who has some actual knowledge of what is being called into question. I also understand there is likely to be an issue about just where in the backyard of Turner Esplanade the fatal stabbing took place, and that issue might be addressed by reference to the bloodstain pattern evidence. That is a purpose of the challenge that is being made to the conclusions drawn by the crime scene officers.

31. During my discussion with Ms Climo, I pointed out that Sergeant Cajna's knowledge is entirely - it says in the transcript "independent", but the context suggests that what I said was - “dependent upon what other people say".

32. During the discussion with counsel, I asked about whether or not Sergeant Gibb was going to be called, and I was told he was overseas. It was put to me in submission by Ms Climo that Sergeant Climo had adopted the evidence of the others. I do not know of a process of adoption by a witness; it is just another way of expressing the fact that she was giving hearsay evidence, but I also rejected that submission saying that she did not adopt anything. She has just given straight out and out hearsay, because it has been agreed that she could give out and out hearsay to put this material before the Court. I also said:

“Isn't there some other way? I accept you've got an entitlement to do this, Ms Climo, I am just worried about the way it's being done and through this particular witness, that's all.”

Ms Climo said there is no impugning of the witness' credit, and I accept that that is so. Credit of course goes to reliability, but it is not the only matter that goes to reliability.

33. In any event, after hearing from counsel, I decided that I would, at this stage of the proceedings, give the jury a s 165 of the Evidence Ac**t warning in relation to hearsay and Sergeant Cajna's role in the trial. I also said this at page 608.34T:

“Now, it's obvious that some of the questions that Ms Climo is asking in the proper exercise of her role as defence counsel, in cross-examination of Sergeant Cajna, are questions calling into question parts of the investigation carried out by other officers. Now, the truth of the matter is, apart from, say, Crime Scene Officer Watton, who, you've heard, was Sergeant Cajna's partner when they first went to look at the crime scene, the other investigations which I have mentioned, including the investigations of Detective Technical Sergeant Gibb happened in her absence. She's just going on statements that they prepared in the course of their duty, that were put in her hand when she's sitting in the witness box. Frankly, she knows nothing about what they did or what they found, and perhaps pertinently, what they didn't do. That's, members of the jury, classic hearsay.”

And I went on to give a warning in accordance with s 165 explaining the care with which a jury must weigh and assess hearsay evidence.

34. I also added at 609.15T that Ms Climo did challenge Sergeant Cajna about her work and that they were things that she could answer from her own knowledge. I pointed out to the jury: “That's not hearsay, that's direct evidence and it's open to challenge."

35. I went on to say (at 609.22-26T):

“Now, it may be convenient for this evidence to be introduced through her, but when she says so far as she's aware it wasn't proved, she's not aware, because she's relying wholly upon what's in another police officer's statement, and can I put it this way, you shouldn't hold it against her. I mean, not all of these challenges might be taken seriously by you, and you will be given the opportunity"--

I think that is a mistranscription. Picking up from 609.25T,

“I mean, all of these challenges might be taken seriously by you and you'll be given the opportunity to consider them and it may well be in the exercise of your judgment in assessing all of the evidence, you may think these are important matters for you to give real consideration to when you're deciding the ultimate question in this trial. But if there are serious shortcomings in the work of other officers, then it's not Sergeant Cajna's fault and she can answer for her own work, as she has been asked to do already today."

36. Nowhere in that direction or warning did I criticise the process being undertaken by counsel, criticise counsel herself, nor give any direction prohibiting or forbidding counsel from cross-examining. After the luncheon adjournment, Ms Climo told me that she had had the opportunity to consider the direction. She asked for another direction to the jury that the questions being asked by the defence were in response to the evidence that was led to ensure that the jury were not left with an uneven picture of the evidence in relation to the issue. Ms Climo also submitted that the defence position is that the cross-examination was well open on the evidence, and she asked for a direction that the jury are not left with a perception that the defence have conducted the cross-examination impermissibly. Nothing I said suggested any impermissible conduct on the part of defence counsel. The whole direction the jury were given was in accordance with s 165 of the Evidence Act, and I felt that was appropriate given what was obvious to me about the nature of the process being undertaken.

37. Ms Climo has asked me to discharge the jury on the basis that there is a real risk of a miscarriage of justice given what I said to the jury yesterday. With respect, I do not accept that submission. The basis of it, as amplified during the course of the argument before me this morning, was that, because I had given that direction during the course of the cross-examination, the jury might think that Ms Climo had conducted herself in some improper way which might affect their willingness to listen carefully to her submissions and weigh them appropriately in regard to their persuasiveness at the end of the trial. With respect, as I have tried to demonstrate, and I repeat, there was no criticism of Ms Climo at all in what I said to the jury. Moreover, I emphasised that the issue was a potentially important one and it was legitimate for it to be pursued by the defence.

38. In any event, for these reasons that I have given now on an ex tempore basis, given the stage of the trial, so that the parties will know why I have come to this conclusion forthwith, I am not satisfied that appropriate grounds have been made out to discharge the jury. I decline the application.

39. I will simply add by way of addendum to the foregoing reasons that, having rejected the direction that Ms Climo sought after the luncheon adjournment, I did later in the afternoon, on reflection, offer to give the jury a direction emphasising that there was no criticism of Ms Climo or the appropriateness of the approach of challenging the adequacy of the police investigation that was being taken by the defence. How I would have put it will, of course, appear in the transcript. Ms Climo did not embrace that offer but preferred to take it on consideration as she was well entitled to do.

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