R v Cairney (No 17)

Medium Neutral Citation: R v Cairney (No 17) [2025] NSWSC 750

Hearing dates: 11 April 2025, 19, 21-23, 26-30 May, 2-6, 10-12 June 2025

Date of orders: 12 June 2025

Decision date: 12 June 2025

Jurisdiction: Common Law

Before: Campbell J

Decision: The re-direction to the jury regarding the Crown’s re-examination concerning Ms Ponfield’s previous viewing of the dashcam footage and cross-examination concerning Ms Ponfield being hit by the deceased as proposed by the defence is refused.

Catchwords: EVIDENCE – fairness to a witness – directions to jury – where the matter of a witness having seen video evidence in the trial was elicited in cross-examination – where re-examination as to that matter was put to the witness – where direction made to jury regarding the practice of legal representatives’ conferring with witnesses – HELD no further jury direction required
EVIDENCE – fairness to a witness – directions to jury – where the witness cross-examined on the state of mind of another person – questions asked outside rulings on cross-examination – objection to questions upheld – where direction made to jury to disregard exchange between counsel and witness – HELD no further jury direction to be made as proposed

Legislation Cited: Evidence Act 1995 (NSW) ss 38, 39

Cases Cited: Browne v Dunn (1893) 6 R 67)

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. During yesterday’s proceedings, at the conclusion of the evidence of Ms Sandra Ponfield, who is the defacto partner of the accused, the Crown sought leave to ask further questions, if necessary, in chief. The application was made in the presence of the jury and dealt with in those circumstances in an appropriately short form. I asked counsel which topic the questions concern, and I was advised it is about the dashcam footage (1134.10-15T). I granted the Crown leave to do this subject to the right of defence counsel, Ms Climo, to further cross-examine should she wish.

2. During the cross-examination by Ms Climo of Ms Ponfield, segments of the dashcam footage (that has been admitted as part of the video compilation which is Exhibit O in the trial) were shown to her. The witness was asked questions about what it depicted and what she was doing in relation to the actions shown in the footage. There was no objection to that process by the Crown, nor could there have been. It was entirely appropriate and admissible cross-examination.

3. Questions about whether the witness had seen the dashcam footage previously directly arose out of that cross-examination and elicited from Ms Ponfield that she had seen some of the dashcam footage previously. In my opinion, those questions and answers were admissible as re-examination without leave.

4. Section 39 of the Evidence Act 1995 (NSW) (Evidence Act) deals with, as the heading to the provision (which I note does not form part of the Act) suggests, the limits on re-examination. It is in these terms:

39 Limits on re-examination

On re-examination—

(a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, and

(b) other questions may not be put to the witness unless the court gives leave.

5. There are two things one may say about that in accordance with the invariable practice of the courts. Even before the enactment of the Evidence Act, re-examination was allowed on that general basis of re-examining counsel putting questions to the witness about matters either arising out of the evidence given in cross-examination. It had always been the practice of the courts prior to the enactment of the Evidence Act that counsel calling the witness, after cross-examination, could seek leave from the court to ask other questions, generally speaking, being questions in the nature of examination-in-chief. My experience of these matters, going back to the late 1970s, is that leave was generally granted with a degree of liberality, subject, of course, to the right of cross-examining counsel to further cross-examine on the topics elicited under the grant of leave.

6. It arose during the re-examination about whether Ms Ponfield had previously viewed the dashcam footage that the witness was asked, "Where did you see some of the dashcam footage?" (1134-5T), and Ms Climo objected to that question. In the presence of the jury I asked defence counsel, "You are objecting on the basis of privilege?” (that is to say, legal professional privilege), to which Ms Climo answered “Yes, your Honour.”

7. The Crown recorded, which had been noticed by me while I was speaking to Ms Climo, that Ms Ponfield had, in response to the Crown’s question of where she saw “some [of the dashcam footage]”, said "with" (1135.7T) and made a hand gesture indicating the accused’s legal team, including Ms Climo. In her submissions today, as I understand it, Ms Climo also noticed that Ms Ponfield’s hand gesture towards her may have occurred. In any event, I upheld defence counsel’s objection and directed the Crown Prosecutor not to ask about any communication passing between Ms Ponfield, Ms Climo or any instructing solicitor acting on behalf of the accused.

8. The next question was (at 1135.29T):

“Q. So that's the occasion that you have seen some, is it?

A. Yeah."

9. It may have been, I interpolate, that the witness became a little discombobulated by these questions, because I observed that the witness appeared distracted. I checked with her whether the answer she had given was the one she had intended to give and she answered me in the affirmative (1136.4T). To my mind there was nothing improper about any of that re-examination by the Crown Prosecutor. I do not regard it as having been elicited in breach of the rules of evidence.

10. The Crown Prosecutor then moved on to a separate topic, dealing with part of the segment shown to Ms Ponfield of her using a long pole, on one view of it, to chase off Mr Smith, the deceased, who had been fighting with the accused on or about the carriageway of Turner Esplanade. During that exchange, it can clearly be seen that Mr Smith disarms Ms Ponfield of the pole, and during that process, she appears to be struck on the head by Mr Smith. The most obvious aspect of that is that she immediately reacts by putting her hands on the back of her head. From my own point of view, it is a readily available inference that she was struck by Mr Smith. Ms Ponfield was asked about that matter at 1138-9T.

11. At 1139.6T, the Crown Prosecutor did descend into what I regarded as cross-examination by seeking to explore the state of mind of Mr Smith rather than anything about which Ms Ponfield could give evidence. Although the questions were not leading, they certainly were designed to directly challenge the account that Ms Ponfield had given about being struck on the head.

12. Ms Climo objected to that line of questions, on the basis that the Crown’s questioning was cross-examination, and it was not cross-examination under s 38 of the Evidence Act in accordance with the rulings I had previously made. I upheld that objection, and I said (at 1139.20T):

“There was an issue about examination-in-chief which I permitted, but this is cross-examination in relation to this item, and it does ask her to look into Mr Smith's state of mind.”

13. Ms Climo added another ground to her objection when, with respect, she observed that the question did ask the witness to interpret the video. The Crown Prosecutor acknowledged the validity of Ms Climo's objection, the Crown’s question was withdrawn and the Crown Prosecutor said that she wouldn't take that topic any further.

14. Immediately, I said to the jury, "Just disregard that exchange, members of the jury" (1139.25T). From my observation, and the nods of the head of the members of the jury, they did in fact acknowledge what I said, and I have no doubt would disregard the exchange.

15. As things occurred, that brought the re-examination to an end. I asked Ms Climo whether she wished to exercise the right I had reserved to her to ask any further questions, to which she responded, "No questions, your Honour" (1139.32T).

16. Given that a jury of laymen might have been confused about the question regarding whether some of the dashcam footage had been shown to Ms Ponfield by representatives in the accused’s legal team, I thought it appropriate to give a direction to the jury about that matter (at 1139.46-1140.6T):

“...you've heard some questions about conferences between witnesses and counsel or other legal representatives. In our Australian legal system that's entirely normal. As part of the preparation for trial, counsel on both sides of the record will have conferences with witnesses, that's for the purpose of interviewing them to get a clear idea of what their evidence is going to be. [It's] perfectly normal. It happens in every case. In a criminal trial it is not unusual for both sides, that is to say the prosecutor and defence counsel, to have a conference with witnesses who are going to be called in the Crown case. If you were wondering about those questions, there is nothing to worry about in relation to that. It is all normal and it adds to the efficiency of the trial process."

17. After the jury were excused for the day, Ms Climo indicated to me that she had some concerns about aspects of the re-examination, and that she wished to consider her position overnight. I gave her liberty to send a proposed direction if she wished to contend for a further direction in relation to what I had already said to the jury. That was sent through to my chambers in accordance with that liberty, and I marked it as MFI-51. Ms Climo’s proposed direction was as follows:

“In order to ensure fairness to a witness the rules of evidence govern the way questions are asked by each party during a criminal trial.

The questions that were asked by the Crown Prosecutor yesterday in re-examination concerning Sandra Ponfield having viewed the dashcam footage prior to giving evidence are to be disregarded by you. The evidence was not admissible, and the answers given by the witness are to be disregarded.

In certain circumstances a party may cross-examine their own witness. The evidence given in relation to Mr Jason Smith hitting Sandra Ponfield with a steel pole on the head depicted on the dashcam footage was elicited by the Crown Prosecutor by cross-examining Ms Sandra Ponfield, a Crown witness. This was not in accordance with the rules of evidence in relation to this aspect of the evidence. This means those answers are also to be disregarded by you.”

I observe that the giving of the direction as proposed is opposed by the Crown.

18. There are a number of aspects about what is proposed by the accused’s counsel that must be elucidated. While some rules of evidence do have as their purpose ensuring fairness to a witness (for example, the rule in Browne v Dunn (1893) 6 R 67), that is not the overwhelming or main purpose of the rules of evidence. The main purpose of the rules of evidence is to ensure that the tribunal of fact receives only reliable evidence. To the extent to which there are exclusionary rules of evidence that may be exercised by a judge to ensure fairness, those rules exist to ensure fairness to the parties and, particularly in a criminal trial, to the accused. Regarding the proposed direction, I would not wish to put my imprimatur on the first paragraph of the proposed direction.

19. Concerning the second paragraph, to my mind, the questioning about Ms Ponfield viewing the dashcam footage was properly conducted as re-examination, having regard to the content of the cross-examination by Ms Climo. The evidence was admissible, and I would not instruct the jury to disregard Ms Ponfield’s answers.

20. So far as the third paragraph is concerned, I have already upheld an objection on the ground that the questions about whether or not Ms Ponfield was hit were cross-examination and outside my ruling, and accordingly, I have disallowed them. I have already instructed the jury to disregard that exchange between the Crown Prosecutor and the witness, and I see no point in going back over that ground again. To my mind, that would have the effect of raising more questions in the mind of the jury than it is intended to dissolve.

21. I should say that in the course of submissions, Ms Climo did emphasise her concern that the jury might wrongly form the impression that there was some impropriety on the part of the accused’s legal representatives in showing aspects of the dashcam footage to the witness. It is Ms Climo’s settled position that I should give this direction to the jury. However, it must be said that none of the paragraphs contained within MFI-51 actually directly address that concern at all.

22. What I said at the conclusion of Ms Ponfield’s evidence yesterday was intended to dispel any wrong idea that the jury might have about the propriety of the legal team’s conduct. While I did not directly address the showing of aspects of the dashcam footage to the witness, I am prepared to do that if defence counsel wishes me to do so. I maintain my concern that ‘going back for my hat,’ as the expression has it, may raise additional questions rather than settle them, but if Ms Climo wishes me to directly address what I already told the jury but in the context of showing aspects of dashcam footage in conference with witnesses, I am prepared to do that.

23. Notwithstanding this, I am not prepared to give a direction in accordance with MFI-51.

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