Citation: R v Cairney (No 12) [2025] NSWSC 710
Court: Supreme Court of New South Wales
Date: 4 June 2025
Judge: Campbell J
Background
The accused stands trial on charges arising from events on 18 and 19 December 2022. During the trial, a crime scene officer, Sergeant Cajna, was called to give evidence covering not only her own work at the crime scene but also the work of several other officers. Statements from those other officers were placed in her hands, and she was asked to give evidence by reference to their contents. A large volume of crime scene photographs taken by other officers, including Detective Technical Sergeant Gibb, were also introduced through her evidence.
During cross-examination by defence counsel (Ms Climo), Sergeant Cajna was questioned about the thoroughness and appropriateness of work carried out by those other crime scene officers. That questioning proceeded on the basis of material the witness had no direct knowledge of, including photographs she did not take, at times when she was not present.
Campbell J intervened during cross-examination and gave a direction to the jury under s 165 of the Evidence Act 1995 (NSW), cautioning them about the reliability of hearsay evidence. Defence counsel then applied for the jury to be discharged, contending the direction created a real risk of miscarriage of justice.
Legal Issues
- Whether the jury direction given under s 165 of the Evidence Act 1995 (NSW) during cross-examination gave rise to a real risk of miscarriage of justice warranting discharge of the jury.
- Whether the direction conveyed, or could have been perceived by the jury to convey, criticism of defence counsel's conduct of the cross-examination.
- Whether the cross-examination of Sergeant Cajna on hearsay matters, including the work and observations of other officers, was properly open on the evidence as it stood.
Decision
Campbell J refused the application to discharge the jury. His Honour found that the direction given to the jury was a standard s 165 direction concerning hearsay evidence, appropriate in the circumstances, and carried no criticism whatsoever of defence counsel's conduct. The direction had been given to prevent the jury from being left with an uneven understanding of the evidence, particularly given the volume of hearsay material that had been introduced without objection.
His Honour explained that Sergeant Cajna's evidence about the work of other officers was hearsay in its plainest form. He gave the example of her answering "Yes, he observed it" when asked about observations made by Detective Technical Sergeant Gibb from photographs the sergeant did not take and at a time when she was not present. Throughout the evidence-in-chief, no objection had been raised on hearsay grounds, and Campbell J had proceeded on the assumption that this arrangement was by agreement between counsel as a practical way of consolidating evidence.
During cross-examination, it became clear to Campbell J that Sergeant Cajna was being challenged not only on her own work but on the adequacy of other officers' work, despite having no direct knowledge of it. His Honour considered the direction necessary to ensure the jury appreciated the hearsay character of that evidence. He expressly emphasised to the jury that the issue was potentially important and that it was legitimate for the defence to pursue it.
Campbell J rejected the submission that the direction might impair the jury's willingness to weigh defence counsel's submissions fairly. He noted that, following the luncheon adjournment, he had offered to give a further direction expressly confirming there was no criticism of Ms Climo or of the defence's approach to challenging the adequacy of the police investigation. Defence counsel neither accepted nor rejected that offer at the time, preferring to take it under consideration.
Orders Made
No orders were made in this decision. The application to discharge the jury was declined.
Key Takeaways
- The Supreme Court confirmed that a direction under s 165 of the Evidence Act 1995 (NSW), cautioning a jury about the reliability of hearsay evidence, does not of itself constitute criticism of the counsel who elicited or challenged that evidence.
- A court may give a hearsay warning mid-trial, including during cross-examination, where it considers such a direction necessary to prevent an uneven picture of the evidence reaching the jury.
- Discharge of a jury requires established grounds of real risk of miscarriage of justice; a direction that accurately characterises evidence as hearsay and affirms the legitimacy of the defence challenge does not meet that threshold.
- Where hearsay evidence is introduced without objection from either party, a presiding judge may reasonably infer an arrangement between counsel and proceed accordingly, while retaining the power to direct the jury if the nature of the evidence later requires it.
- Under s 165 of the Evidence Act 1995 (NSW), the court retains an active role in ensuring juries are appropriately guided on the weight and reliability of evidence that carries recognised limitations, including hearsay.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 44, 165
Cases cited: None cited in the judgment.