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)

1. 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.

2. 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.

3. 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.

4. 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 may be said that, overall, the various portions of her statement upon which the Crown wish to rely are largely corroborative of the statement of her husband, Mr Robert De Graaff which was made on the same day, being 20 December 2022. Mr De Graaff is available to give evidence and will be called in the trial.

5. Mr De Graaff's statement covers not only the events which took place on or about the carriageway but, in paragraph [12] of his statement, he claims to have seen the event which, I infer, was the infliction of the fatal stab wound to Mr Smith. He does not describe Mr Cairney as holding a knife; rather, he speaks of seeing a bar with which Mr Cairney lashed out, hitting Mr Smith on the upper left side of his chest. On the whole of the evidence that I have heard so far, if accepted, that must be a reference to the fatal event. I acknowledge from what I know of the case and from the course of the evidence so far, the reliability of his account is very much in issue. It follows that such corroboration as is provided by Mrs De Graaff could be evidence of some importance.

6. Section 65 of the Evidence Act is engaged in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. That is the beginning and not the end of the inquiry, as the succeeding provisions, commencing with subs (2) of s 65, make clear.

7. Notwithstanding the fulsome argument I have received, I have been asked by the learned Crown Prosecutor to decide that preliminary question more or less as a separate question to enable instructions to be obtained from the Director should I not be satisfied that Mrs De Graaff is unavailable.

8. The question of whether a person is unavailable is governed by the provisions of cl 4 of Pt 2 of the Dictionary to the Evidence Act. Principally, the Crown relies upon cl 4(1)(c), although it may be that, in the alternative, clause 4(1)(f) is also relied upon. Those provisions are in the following terms:

(1) For the purpose of this Act, a person is taken not to be available to give evidence about a fact if -

...

(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or

...

(f) all reasonable steps have been taken by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success.

9. It is also important to bear in mind the provisions of s 142 of the EvidenceAct which governs the standard of proof applicable on the voir dire when the question of admissibility of the evidence is in issue. The applicable standard in a criminal case on an application by the prosecution is the balance of probabilities. However, in applying that standard, s 142(2) of the Evidence Act requires the Court to take into account:

1. the importance of the evidence in the proceedings, and

2. the gravity of the matters alleged in relation to the question.

Those matters together seem to bring into play the considerations that animated the decision of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336. In that regard, I have borne in mind that the charge against Mr Cairney is one of murder carrying a maximum penalty of life imprisonment.

10. As I have indicated, while Mrs De Graaff is a corroborating witness and her evidence is of some importance, if I may say so, it is not central to the Crown case.

11. To prove her unavailability, the Crown has principally relied upon the case that Mrs De Graaff suffers from a lifelong personality trait of high anxiety. The existence of this personality trait is supported by the evidence of Dr Marcelo Rodriguez, a highly qualified clinical and forensic psychologist. Dr Rodriguez had the benefit of a 30-minute consultation with Mrs De Graaff, conducted by way of AVL in the presence of her husband on 21 May 2025. Dr Rodriguez also gave evidence before me and was cross-examined by Ms Climo on the voir dire.

12. To a lesser extent, the matter is supported, if I may say so, by the bare opinion of Dr Syed Zafar, Mrs De Graaff's longtime attending general practitioner, in a certificate of 15 April 2025. Dr Zafar refers to Mrs De Graaff’s severe anxiety, finding that Mrs De Graaff gets panic attacks and headache when she thinks of the prospect of appearance in court. Dr Zafar and Dr Rodgriguez also refer to her diagnosis of hypertension which, on the evidence I heard, I take to be high blood pressure.

13. What is clear from both the oral evidence and written opinion of Dr Rodriguez, is that Mrs De Graaff has never been diagnosed with a recognised psychiatric condition in the form of a mood disorder extending to, say, Panic Disorder or some other anxiety-based disorder. From the account given by Mrs De Graaff's husband, Dr Rodriguez was prepared to conclude that Mrs De Graaff had a personality trait, at least for as long as she had known her husband, meaning that she does not cope well with pressure. Using Dr Rodriguez's expression (not Mrs De Graaff’s husband's), her trait anxiety has been observed over 32 years of marriage.

14. However, it seems more important that Dr Rodriguez is of the view that Mrs De Graaff does not have a previous psychiatric history, with no admissions or treatment by mental health services. She has never been treated for anxiety, including having been prescribed medication. She denied a family history of mental illness (Exhibit MM2.5 at [16]). Dr Rodriguez adhered to that opinion in oral evidence. He made it quite clear that he had made no diagnosis, if I may say so with respect, on the assumption that even a highly qualified clinical psychologist is entitled to make a medical diagnosis. Indeed, Dr Rodriguez said he would be completely unable to make any diagnosis on the basis of his short consultation with Mrs De Graaff. He indicated that to make a diagnosis of any psychiatric condition, he would certainly need the benefit of more than a single consultation with Mrs De Graaff, and probably the opportunity to administer a battery of psychological or neuropsychological testing to elicit other relevant information relevant to the diagnosis.

15. I interpolate that Dr Rodriguez agreed, in answer to some questions I asked after cross-examination, that he did not think Mrs De Graaff's personality trait of anxiety, were it a condition which made her unavailable within the meaning of the Evidence Act, was such that she could not give evidence with accommodations such as from an AVL suite located in Wollongong, with regular breaks and with the assistance of an appropriate support person being present with her.

16. It was clear from the cross-examination of Ms Climo that even a personality trait of anxiety, albeit not rising to the level of a recognised psychiatric condition, may affect a person's perception of an event in a way which distorts the accuracy of their recollection, although not necessarily. That last matter, which was the result of a careful cross-examination by Ms Climo in much more detail than I have summarised, probably relates more to questions arising under s 65(2) of the Evidence Act, rather than going to the question of Mrs De Graaff’s unavailability.

17. Giving full weight and sympathy to Mrs De Graaff's personal situation of being an anxious person, and having regard as well to her chronological seniority, the central question really remains whether I am satisfied that Mrs De Graaff is mentally or physically unable to give evidence, and it is not reasonably practicable to overcome that inability. It seems that question revolves around whether the expression "mentally or physically unable" can be satisfied by a personality trait, as described by Dr Rodriguez, or whether it is necessary that the inability be, if it is mental, psychiatrically based or, if it is physical, physiologically or anatomically based.

18. With respect to the latter, one can always think of examples of a non-medically based physical unavailability. If a person was trapped in a mine or some such thing, they may be physically unavailable to give evidence. However, regarding the former, being mental unavailable to give evidence, that is a totally different category of case. Although, the expression "mentally and physically unable" where it appears in the provision is, no doubt, to be considered in a given case as a whole.

19. I was referred to a decision by my colleague Garling J in Alzway v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122. At [32], his Honour preferred not to put a gloss on the language of the statute but said the question boiled down to whether the judge was satisfied that the person is mentally or physically unable to give the evidence (original emphasis).

20. While the sense of that is obvious, and one should apply the words of the statute, they have to have some content and legal meaning. In my judgment, that legal meaning is provided by the decision of the Court of Appeal in Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 (Bell CJ, Gleeson and Brereton JJA) (Clancy). This was a child sex abuse case arising out of a childcare facility, relevantly concerning the availability of a child witness. Despite being a civil case, the language of s 63 of the Evidence Act proceeds on the same assumption as s 65 regarding a person’s unavailability. With respect to the determination of whether all reasonable steps have been taken to secure the attendance of a witness, their Honours said at [73]:

“There is nothing discretionary about a conclusion that the witness is unavailable within the definition in cl 4(1)(f)...”

21. Some assistance as to the content of paragraph (c) is found in other language used by their Honours. Their Honours, for instance, observed it was not for the child's mother or the plaintiff's legal representatives to determine whether "the risk to [the child witness’s] health and welfare was such as to render it unreasonable for her to be required by subpoena to attend court to give evidence" ([69]). Their Honours went on to say (at [70]), “the fact that giving evidence may be detrimental to a witness' psychological health and welfare does not render the witness unavailable within the meaning of s 63 of the Evidence Act.”

22. Their Honours also said this at [71]:

“… insofar as [the trial judge] supposed that there was evidence, either from the mother or from the psychiatrist that [the child witness] was psychologically adversely affected by the relevant events, [the trial judge] was in error. There was no such evidence." (My emphasis.)

23. It seems to me the overall tenor of the Clancy judgment of the Court of Appeal in this regard is that to establish a person is mentally unable to give evidence requires evidence going beyond the consideration that the person would find giving evidence anxiety-inducing, or that he or she would be highly nervous about the prospect of giving evidence in a criminal trial. This would be so at least when that anxiety or nervousness falls within what might be regarded as the broad range of normality, such as a personality trait.

24. It seems that on the basis of Dr Rodriguez's evidence, although it could be said that Mrs De Graaff's personality trait of anxiety was at one extreme of that broad range of normality, it had not crossed the line into a recognised psychiatric illness. Accordingly, I am not satisfied that she is unavailable to give evidence.

25. Were I wrong in that determination, having regard to Dr Rodriguez's evidence, I am not satisfied that it has been established that it is not reasonably practicable for her to overcome the inability to give evidence based upon her personality trait. She spoke to the doctor by AVL for half an hour and it seems to me that, although it might be a time-consuming exercise, she could give evidence by AVL from Wollongong without having to travel to what she may find to be a hostile court environment, and arrangements could be made for her to have a suitable independent support person during that process. There are witness assistance officers who have already assisted vulnerable persons to give evidence by AVL in this trial.

26. So far as whether all reasonable steps have been taken to secure the attendance of Mrs De Graaff in court, I am satisfied that she does have a subpoena that was served upon her personally by the officer in charge, Detective Sergeant Brent Piggott.

27. But notwithstanding the findings of the Court of Appeal in Clancy in a case where no subpoena had been served, I am not satisfied that the mere service of a subpoena constitutes the taking of all reasonable steps to secure the attendance of a witness without more. It would seem to me that, given the significance of the case and the Court's ample powers of compulsion, it would be necessary in that regard for the party issuing the subpoena to take the step of asking the judge to issue a warrant for the witness's arrest. What happens after that is or may be another matter for the party issuing the subpoena to consider, not for the Court.

28. I also acknowledge that there are other medical conditions of Mrs De Graaff that were referred to, including [redacted]. However, the evidence in regard to those matters does not rise to a level where I could act upon them individually as having been established on the balance of probabilities. By that, I mean that I have the results of [redacted] before me, but I have no medical opinion explaining the significance of those matters in this particular case, and how the medical conditions may affect her ability to give evidence.

29. In the circumstances, I find that Mrs DeGraaff is not unavailable within the meaning of s 65 of the Evidence Act.

**********

Decision last updated: 14 July 2025