R v Cairney (No 16)

[2025] NSWSC 720

Supreme Court

New South Wales

Medium Neutral Citation:

R v Cairney (No 16) [2025] NSWSC 720

Hearing dates:

11 April 2025, 19, 21-23, 26-30 May, 2-6, 10-11 June 2025

Date of orders:

11 June 2025

Decision date:

11 June 2025

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Pursuant to s 38(3), leave is granted for the Crown to cross-examine Ms Ponfield as to her credibility.

Catchwords:

EVIDENCE – Crown application to cross-examine unfavourable witness – s 38(3) Evidence Act – where the Crown raised the proposition the witness has tailored evidence and/or not told the whole truth – where the witness has not had the opportunity to respond to the proposition

Legislation Cited:

Evidence Act 1995 (NSW) ss 38, 102, 106

Cases Cited:

Browne v Dunn (1893) 6 R 67

ZL v R [2023] NSWCCA 279

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. On Thursday 5 June, I made rulings in relation to an application made by the Crown to cross‑examine Ms Sanda Ponfield pursuant to s 38(1) of the Evidence Act1995 (NSW) (Evidence Act). The areas upon which the Crown wished to cross‑examine were summarised in a document which I marked MFI-35, and I gave rulings with respect to that at 835.25-838.27T. However, I did not deal with the question of whether the Crown could cross‑examine Ms Ponfield more generally as to credit under s 38(3).

2. The Crown has made an application this morning, before the resumption of Ms Ponfield's evidence, for leave to cross‑examine as to her credit generally. The application is opposed by Ms Climo of counsel, who appears for the accused, on the basis that general cross‑examination as to credit would be unfair to the accused.

3. Section 38 of the Evidence Act now provides, noting that the provision has been in force for some 30 years, a much more flexible approach to cross-examination of a witness who gives evidence that is unfavourable to the party calling them than was available either at common law or under the provisions of the Evidence Act1898 (NSW) (Repealed). Obtaining leave under s 38(3) also, in my view, provides an avenue through which the party may not only contradict a witness they call but also discredit the witness.

4. While in the conduct of a criminal trial, fairness to the accused is always a central concern, there are other issues of fairness that need to be borne in mind, including fairness to the Crown. However, of no less importance is the issue of fairness to a witness whom the Crown have been obliged to call in the discharge of the obligation to provide a full narrative of the material facts for the jury to facilitate the jury’s full understanding of the issues in the context in which they are asked to bring in a verdict.

5. Moreover, in the discharge of the duty of fairness to the accused, the Crown is obliged to call witnesses whom, were it a purely adversarial process, the Crown would prefer not to call. This may be because there is, as is the case here, other evidence demonstrating material aspects of the witness's conduct on 18 December 2022, so far as those matters may be relevant to the narrative to which I have referred.

6. In a case where leave has been granted under s 38(1) of the Evidence Act, there is obviously a question of fairness arising in relation to the position of the witness. It seems to me, as I have remarked during the course of the argument the other day, that while leave may not be granted under s 38 purely for the purpose of discharging the rule in Browne v Dunn (1893) 6 R 67, that rule may have important consequences for the conduct of a Crown Prosecutor in the presentation of the case to the jury, particularly in the case of a witness whose reliability the Crown Prosecutor wishes to impugn.

7. Adamson J stated the basic principle in the case of ZL v R [2023] NSWCCA 279 (ZL v R), with the general agreement of Price and Fagan JJ. Although their Honours made observations about various aspects of the issues in that case, I did not understand them to doubt her Honour's formulation of the basic principle arising out of the authorities. Omitting citations, her Honour stated the principle in the following terms at [111]:

“The underlying principles can be shortly stated. The first principle is that witnesses ought generally be afforded an opportunity of responding to an attack on their credit ... Significant latitude in the application of this principle is, however, given to accused persons whose instructions may develop within the course of the trial... The second principle is that prosecutors ought generally not impugn the credit of a Crown witness in final address where the witness was not given an opportunity to respond.”

8. Clearly, those principles have to be applied in the context of a criminal trial through the prism of s 38. It is quite clear from the rulings I gave on 5 June 2025 that I have permitted the Crown to cross‑examine under s 38(1), not with respect to every topic covered by MFI-35, but on a substantial number of matters arising from it.

9. It is true, as Ms Climo says, that Ms Ponfield has given evidence in relation to her and the accused’s conduct which does not always cast her in the best light. Although, while I am not criticising Ms Ponfield, her disclosures, if I may put it that way, are not complete when one has regard to the other evidence led in the case, including the compilation of video evidence and the evidence of other Crown witnesses called. However, perhaps more significantly, the evidence of Ms Ponfield as to the conduct of herself and Mr Cairney relevant to the confrontation on the common area at the front of the Turner Esplanade residence and on or about the carriageway of Turner Esplanade can all be put in the context of Mr Cairney either acting in defence of others, including Ms Ponfield, or in self‑defence by repelling attacks from Mr Smith.

10. The Crown, of course, carries the legal onus of negativing self‑defence (or the defence of others so far as it may be in issue) beyond reasonable doubt. And it is a legitimate forensic purpose for the Crown to seek, so far as is permissible, to challenge Ms Ponfield's evidence and contradict her by other evidence called in the Crown case. All of this is permissible under s 38, and might be thought of as that provision's primary purpose in a criminal trial.

11. From the topics which I have ruled pursuant to s 38(1) the Crown may cross-examine Ms Ponfield about, it is quite clear that part of the Crown's challenge to the evidence of Ms Ponfield is that while she may have told the truth in relation to important aspects of the matter, she has not told the whole truth, which is, of course, the obligation of every witness.

12. Whether or not that criticism or challenge is well made is not a matter for me; it is a matter for the jury at the end of the case. However, it is clear from the material that I have allowed, and from the cross‑examination so far, that there are many topics about which the Crown legitimately raises the question of whether Ms Ponfield has told the whole truth.

13. I think, having regard to the general principle stated by Adamson J in ZL v R, there is a question of fairness here and Ms Ponfield must be given the opportunity, before the jury, to answer the challenge that she has not told the whole truth about these matters, upon which cross‑examination is already proceeding, out of a desire to assist Mr Cairney in his defence.

14. I am, in this regard, conscious of the consideration that generally an exception to the exclusionary credibility rule established by s 102 of the Evidence Act is that a witness's evidence is biased, in the sense of being partisan to onr side of the record or the other, is as it would have been put at common law: s 106(2)(a) Evidence Act. Indeed, cross‑examination on that basis is an exception to the credibility rule which does not require leave first being obtained by the cross‑examiner, and I regard that as an apposite analogy. But leave is required under s 38(3) of the Evidence Act.

15. If one has regard to the factors arising under s 192 of the Evidence Act, of which I was reminded of by Ms Climo, I am of the view that, given the detailed cross‑examination that has already been permitted thus far, granting the Crown leave to put the final proposition in relation to Ms Ponfield's credit is unlikely to add any time to the length of the trial. I don't regard it as unfair to the accused, in the sense that the Crown has the obligation to negative self‑defence, and indeed, the cross‑examination has taken place at the end of evidence‑in‑chief and before Ms Climo cross‑examines.

16. It would seem to me to refuse the Crown leave would be unfair to Ms Ponfield, given that she has been asked about a number of topics where it is implicit in the questions that she has not told the whole truth about the matter. Ms Ponfield should at least be given the opportunity to deal with the proposition that she is deliberately withholding evidence to help Mr Cairney, which I think, in any event, naturally arises out of the line of cross‑examination, and which presently may be in the minds of the jury.

17. I think that, obviously, Ms Ponfield's evidence is of some importance in the case given she was present when a very large proportion of the salient events occurred, and there is some evidence that she may have, from the window on the stairs in her home, witnessed the final confrontation in her backyard.

18. I bear in mind that this is a murder trial, and it is not possible to deal with this application by making mere case management directions in relation to it.

19. I am of the view that the Crown should be given the opportunity to challenge Ms Ponfield's credit, however I accept, as Ms Climo submits, that the cross‑examination should not be entirely at large. It seems to me that what is being sought and what is permissible is to put the logical conclusion of the line of cross‑examination so far. That is, the various inconsistencies, omissions and, at least in one case, a potential deliberate falsehood recorded by the body worn footage of Constable Hinkley, would suggest that Ms Ponfield is tailoring her evidence, or avoiding directly dealing with the propositions put to her, out of a desire to present her evidence in the best light for Mr Cairney.

20. Ms Ponfield’s approach is perhaps both natural and understandable in terms of human psychology given the relationship between the two, however, the Crown ought to have the right to challenge the reliability of Ms Ponfield's evidence on that ground.

21. I grant leave, subject to these reasons, under s 38(3) for the Crown to cross‑examine Ms Ponfield about her credit.

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Decision last updated: 18 July 2025