Citation: R v Cairney (No 3) [2024] NSWSC 1513
Court: Supreme Court of New South Wales
Date: 25 November 2024
Judge: Campbell J
Background
The accused stood trial for the murder of a man he had known since childhood. The death occurred on 18 December 2022 and arose from a violent confrontation at the home of the accused's partner, where the deceased had been living in a converted trailer. The accused had remained on remand for nearly two years by the time the trial commenced.
A jury was empanelled on Thursday, 21 November 2024. Both parties opened their cases. The accused's defence centred on self-defence, based in part on his account to police that the deceased attacked him with a knife during the final confrontation.
On the second day of trial, and continuing through the weekend, the Crown served a significant volume of new material that had not previously been disclosed to the defence. That material included a supplementary expert report on blood stain analysis and statements from two lay witnesses, one of whom appeared to be the previously unidentified person who had accompanied the deceased to the scene on the day of the killing.
Legal Issues
- Whether the late service of new expert and lay witness evidence during an already-commenced trial warranted discharge of the entire jury
- Whether the interests of justice required an adjournment beyond the remaining sitting days in the current law term
- Whether the Crown's ongoing duty of disclosure had been adequately discharged prior to empanelment
Decision
Campbell J discharged the jury on the afternoon of 25 November 2024. The court found that the new material fundamentally changed the case the accused had to meet, particularly given that the defence had already opened on a case theory built around the evidence previously served.
The new expert material consisted of a supplementary report from a blood stain analyst, Detective Senior Sergeant Moon, who had been provided with infrared photographs of the deceased's clothing that had never been disclosed to the defence before trial. Those photographs revealed features of the clothing not visible in the standard photographs on which the primary report had been based.
The lay witness statements were of even greater concern to the court. Mr Constable, whose statement arrived on Saturday evening of the first trial weekend, appeared to be the previously unknown and unidentified person who had been with the deceased in the hours before the fatal confrontation. The Crown case statement, as recently as September 2024, had described that person as unidentified. His associate, Mr Kearns, provided a corroborating statement delivered early on the Monday morning. The court found that the defence should not be forced to deal with the ramifications of this evidence "on the run," and that counsel should not be required to absorb and respond to it while simultaneously managing all other aspects of a running trial.
Campbell J noted, without making findings of fault, that it appeared someone within the investigation had information about the potential identity of the unknown companion before empanelment but had not communicated it in a way that would have allowed the defence or the court to respond. The court observed that simply passing on that information, even in a qualified way, would have been an appropriate step and would very likely have led to an application to adjourn empanelment. Given the time of year and the pressure on the Wollongong criminal lists, no alternative remained but to adjourn the trial to the new year.
Orders Made
- The jury was discharged.
- The trial was adjourned to the new year, with the matter listed the following morning at 10 a.m. for counsel to be heard on orders for the future management of the trial.
Key Takeaways
- The Supreme Court discharged a jury on the second day of a murder trial after the Crown served new expert and lay witness evidence that had not been disclosed before empanelment, finding that the interests of justice could not be served by continuing.
- A supplementary expert report based on previously undisclosed infrared photographs, served after trial commenced, was found to be sufficient on its own to raise serious concerns about the fairness of proceeding.
- The identification of a previously unknown witness who had accompanied the deceased on the day of the killing, and whose statement arrived during the trial weekend, materially altered the case the accused had to meet after opening addresses had already been delivered.
- Where the Crown holds information about a potentially significant witness on the eve of trial, even an informal oral communication of that information to the defence or court may be sufficient to discharge the ongoing duty of disclosure, and failure to do so may have significant consequences for the management of the trial.
- In dismissing any prospect of re-empanelling during the remaining law term, the court emphasised that an accused should not be required to meet a substantially changed prosecution case without adequate time for the defence to investigate and respond.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 146
- Evidence Act 1995 (NSW), s 137
Cases:
- Haoui v R [2008] NSWCCA 209
- R v Bentley; R v Davies; R v Thomas; R v Tilley [2019] NSWSC 204
- R v Cairney [2024] NSWSC 1451
- R v Cairney (No 2) [2024] NSWSC 1497
- R v Sharpe (No 2) [2021] NSWSC 32