Citation: R v Cairney (No 4) [2024] NSWSC 1516
Court: Supreme Court of New South Wales
Date: 26 November 2024
Judge: Campbell J
Background
The accused stands trial for the murder of the deceased following a confrontation on 18 December 2022. The encounter unfolded in two parts at different locations outside a residential property, and the central issue at trial is whether the Crown can exclude self-defence beyond reasonable doubt. The accused told police he stabbed the deceased because he believed it was necessary to defend himself, claiming the deceased came at him with a knife immediately beforehand.
Dash-cam footage from a nearby parked vehicle captured part of the second confrontation. Two segments of that footage were tendered on the voir dire (a preliminary hearing before the judge alone, used here to determine admissibility before the jury sees the evidence) as Exhibits M and N. The footage is expected to be central to the Crown's case that the deceased was unarmed at the relevant time.
This is the fourth in a series of interlocutory rulings by Campbell J in the same trial. The specific question in this ruling was whether the Crown could show the jury versions of the footage on which red squares had been superimposed to draw attention to the hands of each person depicted.
Legal Issues
- Whether superimposing red squares ("boxing") on dash-cam footage to highlight the hands of the accused and the deceased was a permissible form of presenting evidence to the jury, or whether it impermissibly led the jury toward a contested conclusion.
- Whether the boxing rendered the footage, or those portions of it, inadmissible or irrelevant under s 55 of the Evidence Act 1995 (NSW), which requires evidence to be rationally capable of affecting the probability of a fact in issue.
Decision
Issue 1: Exhibit M (first segment of footage showing the deceased approaching the accused)
Campbell J ruled that the boxing in Exhibit M was permissible. The judge noted that on a first viewing he could not himself discern what the deceased was holding, and only identified what appeared to be an electrical cord after a second viewing with pauses (at [7]). The boxing did not suggest any particular conclusion about what was in the deceased's hand; rather, it directed the viewer's attention to the hand so that the jury could form its own view (at [8]).
The judge drew an analogy to non-leading questions in examination-in-chief: just as counsel may direct a witness's attention to a topic without suggesting an answer, the boxing directed the jury's attention to a relevant part of the image without steering them to any inference (at [9]-[10]). The "practice effect" from repeated viewings, where detail becomes more apparent on subsequent viewing, was described as a natural feature of video evidence rather than a reason to exclude the enhancement (at [9]).
Issue 2: Exhibit N (footage showing the final confrontation preceding the stabbing)
The defence submitted that because there was no live dispute that the accused was holding a knife and the deceased's hands were empty when he entered the yard, the boxing added nothing of relevance and was unnecessary, implying it fell outside s 55 (at [15]). The defence also repeated its earlier submission that the boxing led the jury to a contentious conclusion.
Campbell J rejected both submissions. Even where certain facts may not be formally in contest, drawing the jury's attention to what is particularly relevant in the footage remains a legitimate forensic purpose (at [16]). The judge held that the boxing did no more than assist the jury to understand the relevance of what they were being shown, and did not impermissibly suggest any contested inference about whether either person was holding an object or what that object was (at [16]-[17]).
Orders Made
- Voir dire Exhibits M and N are permitted to be shown to the jury (with the red-square boxing superimposed as described).
Key Takeaways
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Superimposing visual highlights on video evidence to draw jurors' attention to a specific area of the image is permissible, provided the enhancement directs attention rather than suggests a conclusion about what is depicted (at [8], [16]).
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Campbell J analogised the boxing technique to non-leading questions in examination-in-chief: directing attention to a topic without indicating the answer is a recognised and permissible forensic approach, and the same principle can apply to augmented video evidence (at [9]-[10]).
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The "practice effect" of repeated viewing, where details become clearer upon subsequent exposure, is treated as an ordinary feature of video evidence in criminal trials rather than a basis for excluding visual enhancements designed to assist comprehension (at [9]).
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Where evidence is not formally in dispute, that does not automatically render a visual enhancement of footage irrelevant under s 55 of the Evidence Act 1995 (NSW); drawing the jury's attention to what is particularly relevant in footage can still serve a legitimate purpose (at [16]).
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Different evidentiary formats attract different considerations. The judgment noted, for example, that highlighting a document for the jury may generally be impermissible, whereas pausing footage and using a pointer during address to invite the jury's attention to a specific frame would not be, and the boxing here fell into the latter category (at [17]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 55
Cases
- R v Cairney [2024] NSWSC 1451
- R v Cairney (No 2) [2024] NSWSC 1497
- R v Cairney (No 3) [2024] NSWSC 1513