Citation: R v Cairney (No 2) [2024] NSWSC 1497
Court: Supreme Court of New South Wales
Date: 20 November 2024
Judge: Campbell J
Background
The accused stood charged with the murder of Jason Smith in Wollongong on 18 December 2022. The Crown's case was that the accused fatally stabbed the deceased during a physical altercation. Self-defence was the central issue in dispute, with the accused having told police in a formal interview that the deceased came at him with a knife and that he believed it necessary to act in his own defence.
In the lead-up to jury empanelment, the accused sought to rely on tendency evidence concerning the deceased. An earlier ruling in R v Cairney [2024] NSWSC 1451 had addressed a first tendency notice, rejecting a proposed tendency for the deceased to engage in confrontations using or threatening to use a knife, largely because only one prior incident involved a knife.
A second tendency notice, filed 13 November 2024, reformulated the tendency at a broader level of abstraction: that the deceased had a tendency to engage in confrontations using objects as offensive weapons generally. The accused argued this broader tendency supported the probability that the deceased had armed himself with a knife on the day in question.
Legal Issues
- Whether the evidence of the deceased's prior conduct established a tendency to use objects as offensive weapons under s 97 of the Evidence Act 1995 (NSW)
- Whether that broader tendency, if established, had significant probative value on the question of whether the deceased armed himself with a knife on the fatal occasion (s 97(1)(b))
- How the "significant probative value" threshold under s 97 operates when relied upon by an accused rather than the Crown in the context of self-defence
Decision
Campbell J noted that the prior conduct of the deceased, drawn from a series of prosecutions, showed him using a range of improvised objects as weapons across multiple incidents: broom handles, a drinking glass, a metal dish rack, glass beer bottles, roof tiles, and large pot plants. Out of seven examples, only one involved a knife, and on that occasion the deceased already had the knife on his person rather than picking it up opportunistically.
The accused's counsel argued that this variety of objects demonstrated a tendency to opportunistically seize whatever was at hand as a weapon, and that this tendency increased the probability that the deceased would take up a knife from among his belongings in a trailer at the relevant property. Campbell J acknowledged that the "significant probative value" threshold under s 97 is applied in an attenuated way when the tendency is relied upon by an accused, given the accused bears no onus of proof and the jury need only find a reasonable possibility.
Despite that lower threshold, his Honour concluded that a tendency formulated at such a high level of abstraction could not provide significant probative value on the specific factual question of whether the deceased had armed himself with a knife. The single prior knife incident was not one of opportunistic arming but rather pre-existing possession. Taken at its highest, a tendency to improvise with available objects did not carry sufficient circumstantial weight to support a reasonable possibility that the deceased specifically sought out and used a knife on the fatal occasion.
Campbell J rejected the second tendency notice. However, he noted that the underlying factual evidence of the deceased's prior conduct with improvised weapons remained admissible, not as tendency evidence under s 97, but as direct evidence of the facts upon which the tendency application had been based, subject to questions of form addressed in the earlier ruling.
Orders Made
• The application to rely upon the reformulation of the third tendency is rejected
• Evidence relating to the second tendency notice is inadmissible as tendency evidence under s 97
• Evidence of the previous matters in which the deceased armed himself with adapted weapons is admissible as evidence of facts, not as tendency evidence, subject to matters of form
Key Takeaways
- Under s 97 of the Evidence Act 1995 (NSW), tendency evidence must have "significant probative value" in relation to the specific fact in issue; a tendency formulated at a high level of abstraction may fail to meet this threshold even where substantial prior conduct evidence exists.
- Campbell J confirmed that the significant probative value requirement under s 97(1)(b) is applied with some attenuation when an accused relies on tendency evidence, given the accused carries no burden of proof and the relevant standard requires only a reasonable possibility.
- A tendency to improvise with various available objects during confrontations is not, without more, capable of establishing a significant probability that a person would arm himself with a knife on a particular occasion, especially where only one prior incident involved a knife and it was not an instance of opportunistic arming.
- Rejection of tendency evidence under s 97 does not necessarily exclude the underlying factual evidence entirely; where the facts relied upon to establish the tendency are otherwise admissible, they may still go before the jury as direct evidence of those specific facts.
- The court treated the reformulation of a previously rejected tendency notice as raising a distinct question, but ultimately found that broadening the tendency's scope increased its abstraction in a way that weakened rather than strengthened the probative connection to the specific fact in issue.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 97 (tendency rule, including the significant probative value threshold at s 97(1)(b))
- Crimes Act 1900 (NSW), s 4 (definition of "offensive weapon or instrument")
Cases
- R v Cairney [2024] NSWSC 1451 (earlier pre-trial ruling by Campbell J in the same proceedings)