Citation: R v Cairney (No 8) [2025] NSWSC 705
Court: Supreme Court of New South Wales
Date: 22 May 2025
Judge(s): Campbell J
Background
The accused stands charged with the murder of the deceased, who was fatally stabbed on 18 December 2022. The central issue at trial is whether the accused acted in self-defence and, specifically, whether the Crown can negative that defence beyond reasonable doubt.
The events leading up to the stabbing were captured on CCTV and dashcam footage. The footage shows two separate incidents at different frontages of a nearby property, during which both the accused and the deceased armed themselves with makeshift weapons and engaged in violence.
A consulting engineer with accepted expertise in video enhancement, Mr Grant Johnston, produced enhanced still photographs from the footage at the request of both parties. The Crown's selection of stills depicted the accused armed with various offensive weapons; the defence selection depicted the deceased holding items used to strike the accused. Admissibility of those stills was the subject of this ruling.
Legal Issues
- Whether enhanced still photographs tendered by the Crown were admissible, having regard to ss 55 and 137 of the Evidence Act 1995 (NSW)
- Whether enhanced still photographs tendered by the defence were admissible, having regard to ss 55 and 135 of the Evidence Act 1995 (NSW)
- Whether enhanced video of a specific incident (the "silver car or white cord/cable incident") prepared by Mr Johnston at the defence's request should be admitted
Decision
Admissibility of the Crown's still photographs
Campbell J accepted that the still photographs passed the threshold of relevance under s 55 of the Evidence Act (at [17]). However, his Honour excluded the Crown's stills under s 137, concluding that their probative value was outweighed by the risk of unfair prejudice (at [12], [17]).
The court's concern was that presenting selected images of the accused holding weapons would give the jury a distorted picture of events (at [18]). The jury will have access to the full video footage in the jury room, including the ability to view, rewind, fast-forward and focus on any part they consider significant (at [16]). In the absence of any real forensic purpose for the stills on top of that access, their probative value did not justify their admission (at [16]-[17]).
Admissibility of the defence's still photographs
The defence argued that its selection of stills, showing the deceased wielding weapons against the accused, related directly to the factual matters the Crown must disprove to negative self-defence and therefore warranted different treatment from the Crown's material (at [13]). Campbell J was not persuaded that the two categories were meaningfully distinct in this respect (at [14]).
The court excluded the defence stills under s 135, applying the same reasoning: presenting a curated selection of images risked misleading the jury by giving a skewed view of the overall interaction between the two men (at [12], [18]-[19]). The only way for the jury to gain a true appreciation of the events was to view the footage as a whole (at [18]-[19]).
Enhanced video of the silver car or white cord/cable incident
The enhanced video prepared by Mr Johnston for the defence in relation to the silver car or white cord/cable incident was treated differently. Campbell J allowed this material into evidence (at [8], [12], [19]). His Honour did not elaborate in detail on the specific reasons distinguishing this item from the still photographs, but indicated a provisional view in chambers before hardening it to a ruling (at [11]-[12], [19]).
Orders Made
- The still images prepared by Mr Grant Johnston, sought to be adduced by both parties, are excluded from evidence.
- The enhanced video prepared by Mr Johnston at the request of the defence, relating to the silver car or white cable incident, is allowed into evidence.
Key Takeaways
- Under ss 135 and 137 of the Evidence Act 1995 (NSW), a court may exclude relevant photographic exhibits where their probative value is outweighed by the risk of unfair prejudice, even where those exhibits are drawn from footage that is itself admissible (at [12], [17]).
- Where the jury will have unrestricted access to complete source footage in the jury room, the marginal forensic value of selected still photographs extracted from that footage may be insufficient to justify their admission (at [16]-[17]).
- A selection of stills that captures only part of a dynamic sequence of events can present a skewed picture of the circumstances, and this risk applies equally to prosecution and defence tenders (at [18]-[19]).
- The principle that the Crown may lead evidence on undisputed facts to provide a full narrative does not, of itself, overcome an objection grounded in the risk of misleading the jury through selective presentation of images (at [15], [17]-[18]).
- The Supreme Court here treated enhanced video of a discrete incident differently from a broader collection of still photographs, permitting the former while excluding the latter, reflecting a case-specific assessment of forensic utility and prejudicial effect (at [8], [12], [19]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 55, 135, 137
Cases
- Not stated