R v Cairney (No 19)

Legislation Cited: Evidence Act 1995 (NSW) ss 37, 79
Uniform Civil Procedure Rules 2005 Sch 7

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. Detective Senior Sergeant Moon is giving evidence before me in this trial. Sergeant Moon is the coordinator and thus effectively the commander of the Wollongong crime scene investigation section. The section has a wide area of operation throughout the southeast of the State. There is no challenge to the offiocer’s expertise in the area of bloodstain pattern analysis.

2. There is a very significant issue in this case, which has developed through the evidence of lay witnesses, and perhaps particularly through the evidence of Mr Robert De Graaff, whose evidence I heard on 12 and 13 June 2025, about where within the curtilage of the backyard of the residence on Turner Esplanade the fatal interaction between Mr Cairney and Mr Smith occurred. It may be that further opinion evidence regarding bloodstain pattern analysis will cast some light on that issue.

3. Ms Climo has objected to the evidence on the basis that Sergeant Moon, as she submits, has effectively done no more than adopt the opinions expressed by a more junior officer, Sergeant Cajna, who has already given evidence before the jury. Sergeant Cajna, at the time of the investigation on 18 December 2022, had attained a level 2 accreditation in bloodstain pattern analysis, whereas the Senior Sergeant, at all material times to this case, had attained the level 3 accreditation. Sergeant Cajna is now a level 3 accredited analyst.

4. This issue arose when Ms Climo objected to a leading question put by the learned Crown Prosecutor to elicit an opinion of the Senior Sergeant. I initially ruled that leading questions were permissible of an expert witness, in accordance with the provisions of s 37(1)(e) of the Evidence Act 1995 (NSW) (Evidence Act), unless I ordered otherwise. Ms Climo then developed the submission that the witness was doing no more than adopting the work of his more junior colleague.

5. From the evidence on the voir dire, I am satisfied that the process in which the officer was engaged was more nuanced and sophisticated than that. He was conducting, effectively, a technical or peer review (as it might be put in my language, not his). I am satisfied, based on his description of his process of considering: the statement of Sergeant Cajna; the large number of crime scene photographs she took; the opinion of the forensic pathologist; and other secondary sources set out at paragraph [14] of Sergeant Moon’s statement of 27 September 2024, that he formed his own independent opinion based on that material. He also gave evidence, in response to a question that I asked him that it is legitimate within his branch of expertise to form the opinions he has expressed by reference to those secondary materials.

6. He has given evidence that he briefly attended the crime scene on the night of 18 December 2022, or perhaps the morning of 19 December 2022 in its early hours. Sergeant Moon also made quite clear that his inspection of the bloodstains on that occasion was cursory, and he was there for a short period of time while his officers were carrying out their work. However, from his evidence, I do not understand that it undermines, devalues or delegitimises his opinion for him to have essentially formed it in the way he has described. I repeat, his opinion was formed in the course of his technical review of all of the material gathered in the investigation that is pertinent to the questions falling within the purview of his expertise as a bloodstain pattern analyst.

7. It is no small matter, to me anyway, that the officer has also, at paragraph [10] of his statement, confirmed that he has read the expert witness code of conduct (Uniform Civil Procedure Rules 2005 (NSW), Sch 7) and agreed to be bound by it.

8. I am satisfied that his evidence is properly admissible as expert evidence within his branch of specialised knowledge, subject to, of course, the conditions of admissibility of such opinions fully set out in s 79 of the Evidence Act being complied with.

9. It also follows from this finding that the Crown should be given leeway in asking leading questions in evidence-in-chief of Senior Sergeant Moon.

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