R v Cairney (No 14)

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. Earlier today, I made a ruling in relation to two pieces of additional evidence that the Crown wished to introduce through the testimony of Detective Technical Sergeant Gibb. The evidence relates to an issue about an electrical extension cord which was recovered from Mr Smith's trailer as part of the crime scene investigation. This cord has assumed some significance as a matter of primary fact in relation to the issues at trial. Although the jury have not seen the enhanced footage of this yet, part of the issue going to self-defence is footage showing Mr Smith chasing Mr Cairney in a threatening manner on the driveway of Turner Esplanade in the confrontation leading up to the fatal and final confrontation which occurred somewhere in the backyard of those premises.

2. It may seem strange that such an item has assumed such significance in the trial. However, in broad terms, the Crown case is that the item being used in this confrontation by Mr Smith, being an electrical cable, could hardly intimidate anyone; a proposition about which I am not so sure. In any event, the defence case has always been that the item was something much more sinister, perhaps involving part of a sling with a metal hook on the end, and that this was the very type of thing which might cause someone to fear for their own safety during the continuance of the confrontation.

3. Already in the trial, questions have been asked about what is shown in certain photographs of the trailer which depict the cord, particularly in the evidence of Sergeant Cajna, a crime scene officer who was called to give evidence last week. That process itself generated a good deal of argument in the case, which I will not revisit because it is the subject of other rulings and directions that I have given the jury, which will appear adequately in those reasons and the transcript in relation to those directions.

4. However, six images which I admitted on the voir dire for the purpose of the argument this morning as Exhibit WW, I am told now in relation to this application to discharge the jury, and which I was not told this morning, involved the officer (who is an expert, although I do not have his full qualifications), enhancing the images in an attempt to highlight and illustrate that what is shown in image 3 of Exhibit S, about which Sergeant Cajna was cross-examined, is not a single strand of electrical cord, but rather, an entwined cord. That has been done using a photoshopping application on a computer to add colouring to what is said to be the separate but entwined parts of the same length of cable.

5. Ms Climo made a number of objections to the use of this image this morning, which I overruled. She did not raise the issue of photoshopping then. She tells me, perhaps unsurprisingly as a barrister, she is not an expert in the use of the program, and that in order to meet the issue, the accused’s team would have to obtain an expert opinion. She did mention in passing this morning that she would not be in a position to cross-examine the crime scene officer today, but I inferred from the course of the argument that was because of the lateness of the service of the images at 6.34pm yesterday evening, which I also note was a public holiday.

6. I accept that meeting this particular image may involve independent expert advice being obtained on behalf of the defence. Previously, the defence had obtained some expert advice in relation to some of the images on the compilation of video evidence that has already been tendered from Mr Johnston, who is apparently suitably qualified in the field. It may be, according to the Crown submission, that someone less qualified than Mr Johnston might be able to advise the defence in relation to these images. However that may be, the one thing that is certain is that, if it is not Mr Johnston, someone else might well have to be identified and adequately retained.

7. Given that this is the fourth week I have been sitting on this trial, the third week of evidence and the matter is reaching a conclusion, I expect there will obviously be significant, yet unknowable at this time, delay in relation to obtaining that evidence.

8. As I have already indicated this morning, although I would have allowed Ms Climo to cross-examine this particular witness who is to be called on another occasion after she has had time to assimilate the late served material, based off the explanation Ms Climo has now provided, it seems that things are not so simple. I am persuaded on this basis that I should reserve my ruling in relation to Exhibit WW on the voir dire, and I will not permit the Crown to rely upon it.

9. Having said that, the second ground of the discharge application falls away.

10. The remaining two grounds may be stated as follows. First, Ms Climo submits that the cross-examination of the crime scene officer Sergeant Cajna has proceeded on a certain basis and that the jury would have had the expectation that the images in Exhibit WW would have been used in that cross-examination. I must say that I have reservations about the basic premise underpinning that argument given that, as I have already remarked upon in a different context, Sergeant Cajna did not take image 3 in Exhibit S. At best, Sergeant Cajna’s evidence in relation to that was:

(a) hearsay; and (b) no more than her lay interpretation of what the image depicted, a matter which the jury were just as much entitled to make their own conclusion about as any other lay person, in any event.

Sergeant Cajna has expertise, but her expertise does not extend to the interpretation of photographs taken by somebody else, and the image was not something that she had inspected in the course of her part in the investigation.

11. Whatever the jury's expectation, given that Exhibit WW will now be excluded, it will not materialise. But from my own point of view, even were the image to be used, I am not of the view that the jury would have speculated about why Ms Climo had not used it to cross-examine Sergeant Cajna. As I have already remarked this morning in making my now reversed ruling, the use of Exhibit WW would have been explained in the evidence of Sergeant Gibb, which would have made it quite clear that the image was not extant and therefore not available to be used by Ms Climo when she cross-examined Sergeant Cajna. In any event, her concern will not arise.

12. The final ground is the argument there is a real risk the jury will form the view that the defence case seeks to challenge the process of the crime scene investigation, and that the Crown is now seeking to answer those challenges on the run in a manner which is unfair to the defence. I must say, I am not so sure that I accept the premise in relation to that argument either. It seems to me that challenges may be made to Crown evidence, but challenges are not, as it were, trump cards. Challenges are permitted to be answered. There is nothing, to my mind, with a challenge having been made to the Crown case, to stop the Crown from seeking to answer that challenge during the life of a trial.

13. I have remarked more than once that a trial is not a set piece or a rehearsed play; it is a dynamic process. That is why it is referred to as a ‘trial’. Matters are tried and the prosecution case may be challenged, but challenges may be answered, if they can be, during the trial by eliciting evidence from relevant witnesses. It is of the nature of the criminal process, of any litigation, civil or criminal, notwithstanding the emphasis these days on detailed pre-trial disclosure, that the natural course of the evidence throws up the unforeseen, even the unforeseeable. Allowing for the important differences between criminal and civil proceedings, parties are entitled to the opportunity to answer challenges to their respective cases made in the course of the evidence.

14. There would be no point in having a public trial of any criminal charge if everything was supposed to be set in concrete before it started. All that would be required in those circumstances is that the jury would be given a body of material in written form, counsel would address them and the jury would be asked to bring in their verdict; undoubtedly, a wholly unsatisfactory process. That crude illustration, in my view, illustrates, with respect, the fallacy of the proposition that the Crown are not entitled to meet challenges made by the defence during the presentation of the Crown case.

15. I reject the application for the whole discharge of the jury.

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