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Supreme Court 21 November 2025

R v Cairney (No 22)

[2025] NSWSC 1316

Homicide
SENTENCING PRACTICE AND PROCEDURE ADJOURNMENT APPLICATION ALLOWED PROCEEDINGS ON SENTENCE RE LISTED

Citation: R v Cairney (No 22) [2025] NSWSC 1316
Court: Supreme Court of New South Wales
Date: 21 November 2025
Judge(s): Campbell J

Background

The offender was convicted of murder by jury verdict on 27 June 2025. The offence concerned the death of the victim at Wollongong on 22 December 2022. The offender had been in custody since his arrest on that same date, a period of approximately two years and eleven months by the time of this judgment.

The sentencing hearing was fixed for 21 November 2025. However, on 12 November 2025, the Court was informed that defence counsel and the instructing solicitor were each required, under their respective professional ethical rules, to return the brief and terminate their retainers. Campbell J emphasised that neither had any discretion in the matter. New solicitor and senior counsel were retained shortly before the scheduled sentencing date.

The case had already experienced a protracted procedural history, including a discharged jury in November 2024 (due to the late service of material evidence after empanelment), a retrial commencing in May 2025, and multiple rounds of pre-trial argument. The trial transcript alone ran to approximately 2,000 pages.

  • Whether the sentencing proceedings should be adjourned following the mandatory withdrawal of the offender's trial counsel and solicitor, given the offender's right to legal representation.
  • How to balance the interests of justice (including the offender's entitlement to competent representation) against the undesirability of further delay for a person already in custody for nearly three years.
  • Whether the Court should enquire into the reasons for counsel's withdrawal, given the protections of legal professional privilege.

Decision

Campbell J accepted the limited explanation offered for the withdrawal of counsel and solicitor without further enquiry. His Honour noted that investigating the reasons would risk trespassing on legal professional privilege, and that the Court was required to accept the explanation given in good faith by the withdrawing practitioners.

His Honour stressed that a person standing for sentence on the most serious criminal offence known to law is entitled to the benefit of counsel. New representatives needed adequate time to familiarise themselves with the lengthy trial transcript and the complex factual issues that would likely arise at sentencing. Campbell J explained that the sentencing judge must make independent findings of fact (consistent with the jury's verdict) on the question of culpability. This task is distinct from the jury's determination of criminal responsibility, and new counsel needed to be properly across the evidence to address it.

Campbell J acknowledged it was "generally unsatisfactory" that a person, even one charged with murder, should remain in custody for what would ultimately be nearly three and a quarter years before sentencing. Nonetheless, his Honour was satisfied that the interests of justice required the adjournment. Practical constraints, including the approaching end of the 2025 law term, the January 2026 long vacation, and the availability of the Crown Prosecutor, new senior counsel, the new solicitor, and the Court itself, meant the earliest feasible date was 13 March 2026.

Orders Made

  • Proceedings on sentence adjourned.
  • Sentencing hearing re-listed before Campbell J on Friday, 13 March 2026 at 10am.
  • Matter listed for mention on 20 February 2026 to check readiness, with the offender to appear via audio-visual link.
  • Order issued requiring the offender to appear in person on 13 March 2026.

Key Takeaways

  • The Supreme Court accepted a limited explanation for counsel's mandatory withdrawal under professional ethical rules without probing into privileged matters, acknowledging both the necessity of the withdrawal and its disruptive impact on the administration of justice.

  • A person convicted of murder is entitled to the benefit of legal representation not only at trial but also at sentencing, and the Court granted an adjournment to allow newly retained counsel adequate time to prepare, even in already protracted proceedings.

  • Under the applicable sentencing principles, the sentencing judge must make independent findings of fact on culpability that are consistent with, but not dictated by, the jury's verdict. Campbell J noted that new counsel stepping into a matter at the sentencing stage must engage with the entire evidentiary record to address disputed factual issues properly.

  • Practical difficulties arising from the intersection of professional ethical obligations, court availability, counsel availability, and the long vacation contributed to a significant delay in listing the sentencing hearing, illustrating the timetabling challenges that follow a change of representation in serious criminal matters.

  • Although the adjournment was granted, Campbell J expressly flagged the unsatisfactory nature of prolonged pre-sentence custody, indicating that such delay may be relevant to submissions on sentence.

Legislation and Cases Referenced

  • New South Wales Barristers' Rules (provisions concerning mandatory return of briefs)
  • No specific legislation or cases were cited in the judgment.