Citation: R v Cairney (No 14) [2025] NSWSC 716
Court: Supreme Court of New South Wales
Date: 10 June 2025
Judge: Campbell J
Background
The accused stands trial for a fatal confrontation that occurred in the backyard of a residential property. A central factual dispute concerns an item held by the deceased during a prior chase along the driveway: the Crown contends it was a harmless electrical extension cord, while the defence maintains it was a more threatening object, possibly incorporating a metal hook, capable of causing genuine fear for the accused's safety. This dispute is directly relevant to the accused's claim of self-defence.
The issue sharpened when the Crown sought to introduce six enhanced, digitally coloured ("photoshopped") images of the cord, prepared by Detective Technical Sergeant Gibb, an officer with relevant expertise. These images were served on the defence at 6:34 pm the evening before they were to be tendered, and that evening was a public holiday. Defence counsel, Ms Climo, had not been informed of the photoshopping process when she raised her initial objections to the images earlier that same morning.
Following further explanation from Ms Climo about the complexity of meeting the photoshopped images, Campbell J reversed his earlier ruling admitting the images and excluded them. The defence then applied to discharge the entire jury on three grounds arising from the conduct of the proceedings to that point.
Legal Issues
- Whether the late-served, digitally enhanced crime scene images (Exhibit WW) should be excluded, given that meeting them would require the defence to obtain independent expert opinion.
- Whether the jury should be discharged because it may have formed expectations that the enhanced images would be used during the cross-examination of the crime scene officer, Sergeant Cajna.
- Whether there was a real risk the jury would form the view that the defence was being treated unfairly, having made challenges to the Crown's crime scene investigation that the Crown was now seeking to answer "on the run."
Decision
Campbell J first confirmed his decision to exclude Exhibit WW from the Crown's case, accepting Ms Climo's explanation that responding to the photoshopped images was not a simple matter and would require the defence to identify and retain an expert. With the trial in its fourth week and approaching conclusion, the delay involved in obtaining that evidence was real and unknowable. The exclusion of the images resolved the second ground of the discharge application, which fell away.
On the first remaining ground, the judge was not persuaded that the jury would have formed expectations about the use of Exhibit WW during Sergeant Cajna's cross-examination. Sergeant Cajna did not take the photograph in question, her evidence about it was at most hearsay and lay interpretation, and the enhanced images were not in existence at the time she gave evidence. Had the images ultimately been admitted, their provenance would have been explained through Sergeant Gibb's testimony, making clear they were not available to the defence when Cajna was cross-examined.
On the final ground, Campbell J rejected the proposition that the Crown was acting unfairly by seeking to answer defence challenges during the presentation of its own case. The judge characterised a criminal trial as a dynamic process, not a rehearsed performance. Challenges to the Crown case are permitted, but they do not operate as absolute barriers to the Crown calling responsive evidence from relevant witnesses during the trial.
The judge concluded that no real risk of jury prejudice or unfairness had been established on any of the three grounds, and the application to discharge the jury was refused.
Orders Made
No formal orders were recorded in the judgment. The decision was delivered ex tempore and resulted in:
- Exhibit WW excluded from the Crown's case (ruling reserved on the voir dire).
- Application to discharge the jury refused.
Key Takeaways
- The Supreme Court confirmed that the Crown is entitled to call evidence responding to defence challenges during the course of its own case, and that such challenges do not prevent the Crown from answering them with additional witnesses or material.
- A criminal trial is, in the court's characterisation, a dynamic and evolving process: the emergence of unforeseen issues during evidence does not, of itself, create unfairness requiring a jury discharge.
- Where meeting newly tendered Crown material would require the defence to retain an independent expert, and the trial is near conclusion, that burden may justify excluding the material rather than simply granting an adjournment.
- Late service of evidence, particularly on a public holiday the evening before the material is to be tendered, is a factor courts will weigh when assessing prejudice to the opposing party.
- No error was established in the jury's exposure to prior proceedings involving the cord photographs: the court found the jury was unlikely to speculate about why particular images had not been used in an earlier cross-examination, especially where those images were not yet in existence at that time.
Legislation and Cases Referenced
The judgment as provided does not cite specific legislation or cases by name.