Citation: R v Cairney (No 11) [2025] NSWSC 709
Court: Supreme Court of New South Wales
Date: 28 May 2025
Judge: Campbell J
Background
The accused stands charged with the murder of the deceased, who died from a single stab wound to the upper chest during a confrontation on 18 December 2022. The accused raised self-defence in his police interview, asserting that the deceased came at him with a knife and that his response was necessary and proportionate. The Crown bears the burden of negativing self-defence.
A prosecution witness, who had spent much of the fatal day in the deceased's company, was mid-cross-examination at the time of this ruling. He gave evidence that he and the deceased travelled by bicycle to the scene. Defence counsel put to him that he had in fact been driving a motor vehicle belonging to a third party for part of that day, and that he held a suspended licence at the time.
Defence counsel then sought to put to the witness that he had numerous convictions for driving whilst disqualified and similar offences. The Crown Prosecutor objected, prompting a voir dire on whether the proposed cross-examination was permissible under s 103 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether cross-examination of the witness about his convictions for driving whilst disqualified could "substantially affect" the assessment of his credibility within the meaning of s 103(1) of the Evidence Act 1995 (NSW).
- Whether convictions for driving whilst disqualified or whilst unlicensed are capable of reflecting on a witness's truthfulness and trustworthiness, or whether they fall into a category of mere traffic offences with no bearing on credit.
- How the historical common law approach in Bugg v Day (1949) 79 CLR 442, decided under the repealed Evidence Act 1898 (NSW), informs the application of the current statutory test.
Decision
Campbell J allowed the proposed cross-examination, holding that it satisfied the exception to the credibility rule in s 103 of the Evidence Act. The central consideration was whether the evidence could substantially affect the assessment of the witness's credibility, a test that carries its ordinary English meaning and requires the evidence to be of real and persuasive significance in context.
The judge accepted defence counsel's submission that convictions for driving whilst disqualified, whilst unlicensed, or whilst suspended occupy a different and weightier category than mere regulatory traffic offences. A long line of such convictions, Campbell J reasoned, tends to demonstrate a complete disregard for personal obligations and the law, and courts have regularly treated persons with such records as someone who regards themselves as above the law.
On the historical authorities, the judge referred to Dixon J's dictum in Bugg v Day, which held that traffic offences could not often satisfy the common law test for credit-based cross-examination because they do not tend to weaken confidence in a witness's character or truthworthiness. Campbell J accepted that Bugg v Day was decided under the 1898 Act rather than the current Act, following the analysis of Hunt J in R v Aldridge. However, the judge expressed the view that even on Dixon J's own reasoning, convictions for driving whilst disqualified would likely have satisfied that test, given their character as offences reflecting deliberate defiance of legal obligations.
Given that the witness's evidence bore on events important to understanding the probabilities of what occurred when the deceased was fatally stabbed, the judge concluded the proposed cross-examination met the requirements of s 103 and allowed the question.
Orders Made
The question objected to by the Crown was allowed.
Key Takeaways
- Under s 103(1) of the Evidence Act 1995 (NSW), cross-examination on a witness's convictions is permitted where the evidence could "substantially affect" the assessment of credibility, a phrase carrying its ordinary meaning and requiring evidence of real and persuasive significance in context.
- Convictions for driving whilst disqualified, whilst never licensed, or whilst suspended are distinguishable from mere regulatory traffic offences and are capable of satisfying the s 103 threshold, because a pattern of such offending can reflect a deliberate disregard for legal obligations.
- The Supreme Court confirmed that Bugg v Day (1949) 79 CLR 442, which concerned restrictions on credit-based cross-examination at common law, was decided under the now-repealed Evidence Act 1898 (NSW) and does not govern the application of s 103 of the current Act.
- Contextual significance matters: the court assessed the witness's potential importance to the overall case, including his account of events leading to the fatal confrontation, in concluding that the credibility challenge was sufficiently substantial.
- A witness's failure to disclose relevant conduct when making a signed police statement, in circumstances where the statement carries an acknowledgment of truth and a warning about false statements, is a relevant factor under s 103(2)(a) when assessing whether cross-examination could substantially affect credibility.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 103
- Evidence Act 1898 (NSW), s 56 (repealed)
Cases
- Bugg v Day (1949) 79 CLR 442
- R v Aldridge [1990] 20 NSWLR 737
- R v Castaneda (No 2) [2015] NSWSC 979