Citation: R v Cairney (No 7) [2025] NSWSC 517
Court: Supreme Court of New South Wales
Date: 21 May 2025
Judge: Campbell J
Background
The accused stands trial for the murder of the deceased, with self-defence as a central issue. A previous jury had been empanelled in Wollongong in November 2024 but was discharged after the Crown served a witness statement during the trial that materially altered the prosecution case, contradicted facts already put to the jury in opening, and tended to undermine a significant aspect of the self-defence argument raised by defence counsel.
That late-served statement came from a witness who had been in the company of the deceased on the afternoon of the death. Before that statement was served, the Crown Case Statement referred only to an unidentified companion whose evidence was entirely unknown to both parties. The witness's statement clarified that he attended the relevant premises once only, and that he did not observe the deceased carrying a combustible liquid, a matter of significance given evidence from a protected witness who described two attendances and a juice bottle containing a petroleum product.
By the time of this pre-trial hearing ahead of the retrial in Sydney, a supplementary statement had been obtained from the same witness following a conference on 9 May 2025. An email disclosing the relevant portions of that conference was not served until 4:46pm on 20 May 2025. Defence counsel applied to have the late-served material excluded.
Legal Issues
- Whether the prosecution should be prohibited from relying on material served on 20 May 2025, under s 146 of the Criminal Procedure Act 1986 (NSW), on the basis of non-compliance with pre-trial disclosure obligations
- Whether any forensic disadvantage to the accused arose from the late service of that material
- Whether the court should waive the prosecution's non-compliance with its disclosure obligations in the circumstances
Decision
Campbell J refused the application to exclude the late-served material. His Honour found that, while the prosecution had not fully complied with its disclosure obligations, the non-disclosure was a matter of approximately six days and occurred in circumstances where the supplementary statement was obtained following a witness conference, which commonly takes place close to trial.
The supplementary statement itself was found to contain very little of particular relevance to the central issues in the proceedings. The court noted that the statement's content was, in any event, largely implicit in the original November 2024 statement already served. The Amended Crown Case Statement had also incorporated the relevant material, which was a further relevant consideration.
Campbell J found no real forensic prejudice to the accused beyond the ordinary prejudice of adverse evidence being introduced, which is an inherent feature of litigation. His Honour was satisfied that defence counsel, who had herself identified the contradiction in the evidence, was in a position to address it through cross-examination at trial.
To the extent necessary, the court formally waived the prosecution's non-compliance with its pre-trial disclosure obligations under the Act.
Orders Made
• The application is refused
• To the extent necessary, non-compliance of the prosecution with its disclosure obligations is waived
Key Takeaways
- Under s 146 of the Criminal Procedure Act 1986 (NSW), a court may waive prosecution non-compliance with pre-trial disclosure obligations where no real forensic prejudice to the accused has been identified beyond the ordinary prejudice of adverse evidence being led.
- The Supreme Court distinguished between prejudice arising from forensic disadvantage in the conduct of the trial and the ordinary disadvantage of evidence that tells against the accused; only the former is capable of supporting exclusion in this context.
- Where late-served material was already incorporated into an Amended Crown Case Statement, and its content was largely implicit in an earlier statement already in the defence's possession, the degree of actual prejudice is reduced.
- Non-compliance with disclosure obligations arising from a witness conference occurring close to the trial date, followed by prompt service of the resulting statement, may attract a more sympathetic assessment from the court than systemic or unexplained delays.
- A finding that defence counsel was aware of the relevant evidential contradiction and capable of addressing it through cross-examination weighed against the exercise of the exclusionary power.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 142, 143, 144, 146, 147, 148
- Children (Criminal Procedure) Act 1987 (NSW), s 15A
- Evidence Act 1995 (NSW), s 38
Cases:
- R v Cairney (No 3) [2024] NSWSC 1513
- R v Cairney (No 6) [2024] NSWSC 1550