R v Cairney (No 21)

File Number(s): 2022/381365

Publication restriction: Section 15A Children (Criminal Proceedings) Act 1987 (NSW) applies to the identity of two witnesses.

JUDGMENT

1. Having heard argument on the afternoon of 22 May 2025 relating to the defence’s objections to components of the Crown's proposed compilation video, which was ultimately admitted as Exhibit O in the trial (389.22T), I made rulings on the morning of 23 May 2025 (12.5–30T) and reserved my reasons in advance of empanelment of the jury that morning. The transcript for that date records my rulings.

2. As proposed when I made my rulings, the compilation consisted of 22 video clips from different sources. Some of the clips were audio-visual recordings, but the majority were visual recordings only. Most, if not all, of those visual-only portions of the compilation were derived from what was referred to as the “dashcam footage”, the source of which was a movement sensitive camera fixed to the dashboard of a Toyota Land Cruiser parked astride the nature strip and Turner Esplanade carriageway, adjacent to the curtilage of the residence where the deceased, Mr Smith, was fatally stabbed by Mr Cairney. There was and never had been any issue at the trial that Mr Cairney caused Mr Smith's death by stabbing him once on the right side of his upper chest just above his collarbone.

3. The defence initially objected to five portions of the compilation referred to in Ms Climo’s written submission as clips 15, 19, 20, 21 and 22. Clips 15 and 22 were recorded on the smartphone of a witness who is a young person whose identity is protected by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Clips 19 and 21 were recorded by a doorbell CCTV camera from premises directly opposite where Mr Smith received his fatal injury. This camera was referred as the “ring camera”. Clip 20 was a portion of the dashcam footage depicting the fatally wounded Mr Smith as he emerged from the backyard of the residence, staggered across the street and collapsed beside a white utility vehicle parked on the other side of the street.

Rulings

4. My rulings as recorded in the transcript (12.10-30T) are as follows:

“So far as clip 15 is concerned from [the protected witness]'s iPhone, my ruling is that the Crown is entitled to show that.

It is best if I don't give truncated reasons because I am going to give a fuller explanation, hopefully not, as I have said, too loquaciously.

Clip 19, my ruling is that the Crown is entitled to show that, although it is part of my ruling that any transcript of these matters, that is to say the whole of the compilation, should exclude the matter "get it c*nt" and substitute for those words "indecipherable", so it reads "Smitty Smitty (indecipherable), Smitty get out.

My ruling in relation to clip 20 is that the Crown is entitled to show that.

My ruling in relation to clip 21 is that if there remains a dispute about the timing of clip 19, then the Crown is entitled to show that to prove the accuracy of the time of clip 19.

I note that clip 22 is in limbo at the moment.”

5. I interpolate that after I made these rulings, clips 21 and 22 were omitted from the compilation in the form in which it became Exhibit O by agreement between counsel. For that reason, I think it is unnecessary to give any reasons in relation to my ruling in respect of clip 21 other than that recorded in the ruling itself. I described clip 22 as being “in limbo” because, after argument, Ms Climo, upon reflection, wished to reserve her position in relation to it pending the outcome of further discussions with Ms Ratcliffe, the Crown Prosecutor.

6. With counsel unable to agree on the contents of a transcript of those portions of Exhibit O which included audio recordings, I was informed that counsel had agreed to dispense with a transcript entirely.

7. It is also relevant to record in these reasons that I ruled that the Crown should not open on the utterance by Mr Cairney of the profanity which the Crown contended was not only decipherable but clearly audible on a playing of clip 19 (12.45 – 13.19T). I made this ruling because having played clip 19 in chambers a number of times and twice in open court on the hearing of the voir dire, I was not satisfied on the balance of probabilities that the contentious words were decipherable although the speaker’s tone and volume of voice were clearly heard. In response to a query about whether I would allow the Crown to put the version of those words for which it contends Mr Cairney uttered, although as a submission in closing address, I declined to make an advance ruling (15.5-8T). However, I indicated that I would be prepared to revisit the matter at an appropriate time during the trial (15.14T).

Clip 15

8. Clip 15 was a recording made on 18 December 2022 depicting a plastic juice bottle, as later evidence proved, containing a quantity of a flammable petroleum product (Exhibit TT; 1528.47T). It was the defence case that the bottle had been brought to the Turner Esplanade residence by the deceased and in respect of which he had made threats to destroy the property of the accused and/or the occupants of the premises by fire. It formed a part of the defence argument in relation to self-defence.

9. The objection to the playing of clip 15 to the jury was that the recording had been made by the protected witness by use of a Snapchat application, and that the Cellebrite download from the phone did not provide accurate evidence of when the recording was made, as opposed to when it was subsequently viewed.

10. I was of the view that the recording was relevant to show that the bottle was in the possession of the occupants of the residence no later than the commencement of the clip at 5:52:01 p.m. on 18 December 2022. This evidence was capable of cutting both ways. First, it showed that the bottle was in existence at the time in question, which was a fact indirectly supporting the case of self-defence and, secondly, paradoxically, showed that it was within the possession of the residents, at the latest, by the time I have referred to. This may have indicated that the threat the bottle presented had been neutralised. Naturally however, this would not have stopped the threat of arson materialising by other readily available means. To my mind, the precise time of the acquisition of the bottle by the occupants was a less relevant factor.

11. There was no expert evidence explaining how Snapchat operated, and I did not regard it as a matter of which either I or the jury could take judicial notice. However, the Cellebrite download at least established the latest time at which the bottle was at the premises, which was well before Mr Smith was stabbed.

Clip 19

12. As I have already said, clip 19 is a ring camera recording from the premises directly across from the subject residence at Turner Esplanade. It was made between 06:32:03 and 06:32:17 p.m, a duration of 14 seconds. Its only meaningful content was the audio component which I have referred to above (see [4] and [7]). In particular, it was the Crown case that the words the Crown contended were decipherable were to be attributed to Mr Cairney, and that it was open to the jury to determine the tone and volume of the words uttered were indicative of the time when Mr Cairney inflicted the fatal wound on Mr Smith and were evidence relevant to the former’s state of mind or intent at that time.

13. I repeat, clip 19, so far as any relevant content is concerned, is an audio recording of 14 seconds in duration. On the Crown case, it commences after Mr Smith entered the backyard of the Turner Esplanade residence for the final confrontation, ending about 40 seconds prior to the commencement of clip 20, being the dashcam footage showing Mr Smith emerging from the backyard in his fatally injured condition. Ms Climo objects to clip 19 on the basis that the time recording has not been accurately proved for the purpose of locating it in its proper place in the chronology of the compilation. A statement from the son of the householder owning the footage seeking to verify the timestamp was not served until 21 May 2025, and the defence was not in a position to meet that. I indicated I would not permit the Crown to rely upon that statement, but that clip 21 clearly recorded audio data relevant to the immediate aftermath of the stabbing and, to that extent, would assist the jury to make a decision about the accuracy of the time recorded on clip 19.

14. Ms Climo argued, if otherwise admissible, clip 19 must be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) because, were all the words apparently uttered by Mr Cairney audible, there is no evidence establishing the chain of possession by which the recording came into the hands of investigating police and the recording does not demonstrate where within the backyard of the Turner Esplanade residence Mr Cairney and Mr Smith were.

15. I am of the view that clip 19 is admissible. It is relevant in as much as it contains a recording of words uttered by Mr Cairney during the final confrontation with Mr Smith. Clip 21, to my mind, sufficiently orients the final confrontation in the chronology after Mr Smith entered the backyard and before he emerged fatally injured. It may be drawing a longer bow to suggest that the words uttered by Mr Cairney are contemporaneous with the stabbing in the absence of footage to that effect. Moreover, the 40-second time lag between the recording of the audio and the re-emergence of Mr Smith on the dashcam footage is a relatively long time, suggesting an absence of contemporaneity. But these are jury questions.

16. I was also of the view that clip 19 as an audio recording made during that final confrontation in the backyard, fell into that category of evidence know at common law as the r**es g**estae, and hence is admissible as a common law exception to the hearsay rule: s 9 Evidence Act 1995 (NSW). I did not regard the probative value of that clip to be outweighed by any chance of unfair prejudice. Learned counsel did not identify the unfair prejudice against which the probative value of clip 19 was required to be weighed and assessed. In any event, clip 19 needs to be viewed in its context as forming a small part of the video compilation constituting Exhibit O rather than in isolation. As I made clear in my ruling, I would not permit any transcript of the recording of audio content of Exhibit O to be used which contained the words which the Crown contended were said. Having listened to the recording a number of times in chambers and twice in open court during the argument on the voir dire, I was not satisfied that the words contended for by the Crown could be heard on the recording.

17. Counsel after hearing my rulings decided to dispense with any transcript of any part of the audio recordings of what became Exhibit O.

18. Clip 21 was omitted by agreement, as was Clip 22. I am of the view that clip 20 was admissible evidence of the immediate aftermath of the fatal stabbing of Mr Smith and was relevant to prove what happened.

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