R v Cairney (No 15) - [2025] NSWSC 718

Supreme Court

New South Wales

Medium Neutral Citation: R v Cairney (No 15) [2025] NSWSC 718
Hearing dates: 11 April 2025, 19, 21-23, 26-30 May, 2-6, 10 June 2025
Date of orders: 10 June 2025
Decision date: 10 June 2025
Jurisdiction: Common Law
Before: Campbell J
Decision:
Mrs Yvonne De Graaff is not unavailable within the meaning of s 65 of the Evidence Act 1995 (NSW).

Catchwords:
EVIDENCE – admissibility – hearsay evidence – exceptions – criminal proceedings if maker not available – s 65 Evidence Act 1995 – where witness has been issued a subpoena to give evidence – whether the witness is mentally or physically unable to give the evidence – where the witness does not have a recognised psychiatric illness or psychiatric history – where it is reasonably practicable for witness to overcome manifestations of trait anxiety

Legislation Cited:
Evidence Act 1995 (NSW) ss 63, 65, 142, 165, Pt 2 Dictionary

Cases Cited:
Alzway v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122
Briginshaw v Briginshaw (1938) 60 CLR 336
Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

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: Non-publication order made on 18 June 2025 relating to the health conditions of the witness, Yvonne De Graaff.

EX TEMPORE JUDGMENT (REVISED)

In an application which was first ventilated before me in November 2024 and, at least in short form, has been addressed on different days during the current trial, the Crown makes an application under s 65 of the Evidence Act 1995 (Evidence Act) to lead evidence of a previous representation material to the central facts raised by a witness, Mrs Yvonne De Graaff.
At the time of these events, Mrs De Graaff lived across the road from the premises at Turner Esplanade. She made a statement to police on 20 December 2022, being two days after the stabbing of Mr Smith by the accused, Mr Cairney. Her statement was admitted on the voir dire as Exhibit MM.2.
Without summarising the entirety of her statement, she clearly observed salient features of the various confrontations between Mr Cairney and Mr Smith on or about the carriageway of Turner Esplanade adjacent to the residence on the afternoon of 18 December 2022.
Mrs De Graaff also says in her statement that she witnessed events which, I infer, occurred immediately prior to and immediately following the stabbing which occurred within the curtilage of the Turner Esplanade residence of Ms Sandra Ponfield. She does not claim to have seen the actual stabbing, but it…

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.

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Details

Case: [2025] NSWSC 718
Decision Date: 10 June 2025

CaseChat Overview and Summary

The case of R v Cairney (No 15) involved a criminal proceeding where the admissibility of hearsay evidence was central to the legal dispute. The defendant, Cairney, was being prosecuted for an alleged crime, and the prosecution sought to introduce statements made by a witness who was unable to testify in court. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the hearsay evidence could be admitted under the exceptions provided by section 65 of the Evidence Act 1995, specifically concerning the unavailability of the witness.

The court needed to determine whether the witness's inability to testify constituted a situation where the maker of the statement was not available to give evidence, as required by the statute. This involved assessing whether the witness was genuinely unable to give evidence due to mental or physical incapacity. The court had to consider that the witness did not have a recognised psychiatric illness or history but did experience significant anxiety that impacted their ability to testify. The key legal question was whether the anxiety was sufficiently severe to render the witness unavailable under the Act, despite the absence of a formal psychiatric diagnosis.

In its reasoning, the court found that the witness's trait anxiety, while not amounting to a diagnosed psychiatric condition, was a genuine and significant impediment to their ability to testify. The court concluded that the witness's anxiety was reasonably practicable to overcome, which meant that the witness was not truly unavailable for the purposes of section 65 of the Evidence Act. Consequently, the court held that the hearsay evidence was inadmissible, as the statutory exception for unavailable witnesses did not apply in this instance. The ruling was based on the detailed assessment of the witness's specific circumstances and the statutory requirements for admissibility of hearsay evidence.

Orders