R v Cairney (No 11) - [2025] NSWSC 709

Supreme Court

New South Wales

Medium Neutral Citation: R v Cairney (No 11) [2025] NSWSC 709
Hearing dates: 11 April 2025, 19, 21-23, 26-28 May 2025
Date of orders: 28 May 2025
Decision date: 28 May 2025
Jurisdiction: Common Law
Before: Campbell J
Decision:
The defence has satisfied the exception to the credibility rule under s 103 Evidence Act 1995 (NSW). The question in cross-examination as to credit of the witness that was objected to by the Crown Prosecutor is allowed.

Catchwords:
CRIMINAL LAW – Evidence – Cross-examination of witness – credibility rule – where counsel for the accused cross-examined witness as to credit – where the witness has a criminal history of traffic offences – s 103 Evidence Act exception satisfied – cross-examination question objected to is allowed

Legislation Cited:
Evidence Act 1995 (NSW), s 103
Evidence Act 1898 (NSW), s 56 (repealed)

Cases Cited:
Bugg v Day (1949) 79 CLR 442
R v Aldridge [1990] 20 NSWLR 737
R v Castaneda (No 2) [2015] NSWSC 979

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)

As I have said in other interlocutory rulings, Mr Cairney is charged with the murder of Mr Smith. The Crown case against him is that, during an ongoing disputation between the two, Mr Cairney stabbed Mr Smith, inflicting a single stab wound to Mr Smith’s upper chest just above the collar bone. This stab wound resulted in a severed artery causing a massive loss of blood resulting in Mr Smith's death very soon thereafter.
In the course of Mr Cairney’s voluntary interview with police, it is common ground that Mr Cairney raised matters of self-defence. To put it in a somewhat potted fashion, the account given by Mr Cairney to police was that, in the final fatal confrontation, Mr Smith came at him with a knife, and that Mr Cairney perceived it necessary to stab Mr Smith to defend himself.
It will also be put that, in that final confrontation, Mr Cairney’s response in the circumstances as he perceived them, was reasonable or proportionate to the threat. I am, in saying this, paraphrasing the requirements of the law. Of course, it is well known that it is for the Crown to negative self-defence when it is fairly raised on the material to be put before a jury, as it is in this case.
Mr Jay Constable is giving evidence, and he is mid-cross-examination. Mr Constable has only a relatively small part to play in the trial. By way of background, there are arguably three important phases to the confrontation that ensued between Mr Cairney and Mr Smith over…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cairney (No 11)

Details

AGLC: R v Cairney (No 11) [2025] NSWSC 709
Case: [2025] NSWSC 709
Decision Date: 28 May 2025

CaseChat Overview and Summary

The case of R v Cairney (No 11) involved the accused, Cairney, who was prosecuted for an offence under the Criminal Code. The dispute centred on the admissibility of evidence during the cross-examination of a key witness. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the cross-examination of the witness, which delved into the witness's credibility by referencing their criminal history of traffic offences, was permissible under the Evidence Act 2008 (Vic). Specifically, the court needed to determine if section 103 of the Act, which allows for cross-examination about matters that may affect the credit of a witness, was satisfied.

The court considered whether the exception under section 103 of the Evidence Act was met. This section permits cross-examination about the witness's criminal history if it is relevant to their credit. The court noted that the traffic offences were not directly relevant to the witness's honesty or reliability in the context of the current case. However, the court found that the exception under section 103 was satisfied because the cross-examination was relevant to the witness's credibility. The court concluded that the cross-examination was permissible as it aimed to challenge the witness's credibility by referencing their past criminal conduct, which could potentially influence the jury's perception of their reliability.

Ultimately, the court allowed the cross-examination question, finding that the exception under section 103 of the Evidence Act was indeed met. The court held that the relevance to the witness's credibility outweighed any prejudicial effect on the accused. The court's decision reinforced the importance of the credibility rule in ensuring a fair trial, where the character and reliability of witnesses can be properly assessed by the trier of fact. The outcome confirmed that cross-examination concerning past criminal conduct, when relevant to credibility, is permissible under the statute.

Orders