R v Cairney (No 18)

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. Mr Robert De Graaff, a witness who claims to be an eyewitness to the stabbing of Jason Smith by the accused, Paul Cairney, is currently giving evidence in these proceedings. Objection was taken to his evidence by Ms Climo of counsel at the point where photographs attached to Mr De Graaff’s original police statement of 20 December 2022 were to be shown to him by the Crown Prosecutor.

2. I have been determining the question of admissibility of those photographs on the voir dire. During the course of the argument before me, the learned Crown Prosecutor withdrew the reliance upon those images (which had been marked by Mr De Graaff as part of his police statement on 20 December 2022). Instead, the Crown Prosecutor proposed relying upon three photographs from a group of nine photographs that, on 24 July 2024, had been exposed by the officer in charge, Detective Sergeant Brent Piggott as detailed in his statement of 12 August 2024. Those photographs were taken some 19 months after the events with which this trial is concerned and, as is obvious, the appearance of the environs of the premises at Turner Esplanade has changed a good deal in the interim.

3. Ms Climo objects because, as I understand the argument, there is no direct evidence as to the relevance of the position from which the photographs were taken. Also, there is no precise evidence as to the degree of zooming employed by Sergeant Piggott in photographs 2 and 3 other than it is obvious from looking at the photographs that they have been zoomed in to some extent and do not purport to represent the actual view with the naked eye, and Sergeant Piggot has given sworn testimony that they have been zoomed in on the voir dire.

4. A problem emerged about the illegibility of the endorsements that Mr De Graaff put on the original photographs when he made his statement on 20 December 2022. However, it would seem that, at least prima facie, those photographs could be admissible under s 66 of the Evidence Act 1995 (NSW) (Evidence Act) and neither counsel argues to the contrary, that is, of course, subject to subsection (3) about which I have not heard any argument.

5. In any event, I am satisfied that what is proposed by the learned Crown Prosecutor, that is, placing the photograph/s before Mr DeGraaff in the witness box and asking him to indicate the positions of the persons whom he saw at or around the back door of Turner Esplanade at the material time, is an entirely routine and appropriate means of eliciting evidence from a witness to illustrate the evidence he has given thus far.

6. It would seem to me that any confusion in relation to the matter can be overcome by: first, limiting the purpose for which the photographs are admitted under s 136 Evidence Act so that it is not to effectively be used as real evidence of what can be seen from the balcony on the upper floor of Mr DeGraaff’s Turner Esplanade residence; secondly, the jury can be given a direction in relation to the use that can be made of the photographs. Further to that second point, the jury can be warned that the photographs are only useful for that limited purpose I have identified, and that they are not to take it as evidence of what can actually be seen from the balcony.

7. In due course, Sergeant Piggott will give evidence about taking the photographs and it may be that the Crown would seek to elicit evidence from Mr De Graaff about the occasion on which the photographs were taken by Sergeant Piggot. I propose to allow the photographs to be marked in that way as illustrative of the evidence he has given orally.

8. Ms Climo submitted that, insofar as the photographs are concerned, only the first of the three photographs detailed in Exhibit XX on the voir dire need be used. This is because this photograph is a ‘natural’ photograph, if I can put it that way, and not enhanced by any zooming in. I have given consideration to whether that should be done, and the only difficulty I have with that course is the scale of the photograph would make it difficult to mark it in an intelligible way, if Mr De Graaff can. It also seems unobjectionable asking Mr De Graaff to mark photograph 1 first without reference to photographs 2 or 3, and then perhaps only one of photographs 2 or 3 could be marked for the purpose of making the evidence intelligible to the jury. That is to say, two photographs could be used to illustrate the point.

9. It also seems to me that, as I am sure is not lost on counsel and particularly the Crown Prosecutor, all of this must be done, as the well-worn phrase goes, “according to Hoyle”, inasmuch as a photograph should be put in the hands of the witness and asked by counsel to tell the jury, if he can, what the photograph depicts. If Mr De Graaff’s answer supports the next question, then the witness should mark appropriately where he saw the persons who have been referred to as "the lady's man" on the one hand and "the trailer man" on the other hand in the photograph before him.

10. Although this process really commenced with an objection from counsel, it has moved on to a ruling in accordance with the provisions of s 192A of the Evidence Act and that is my ruling.

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