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Supreme Court 10 June 2025

R v Cairney (No 15)

[2025] NSWSC 718

Homicide
EVIDENCE ADMISSIBILITY HEARSAY EVIDENCE EXCEPTIONS S 65 EVIDENCE ACT 1995

Citation: R v Cairney (No 15) [2025] NSWSC 718
Court: Supreme Court of New South Wales
Date: 10 June 2025
Judge(s): Campbell J

Background

This ruling arises from a murder trial in which the accused, Mr Cairney, is alleged to have fatally stabbed the victim, Mr Smith, on 18 December 2022 at a residential property in Turner Esplanade. The Crown sought to rely on a statement made to police two days after the stabbing by a neighbour who had witnessed confrontations between the accused and the victim on the afternoon in question. That witness did not claim to have seen the stabbing itself.

The Crown applied under s 65 of the Evidence Act 1995 (NSW) to admit the neighbour's out-of-court statement as an exception to the hearsay rule. The basis for the application was that the witness was unavailable to give evidence, principally due to anxiety. The application had been raised in various forms since November 2024 and was argued more fully during the current trial.

Campbell J was asked to determine, as a threshold matter, whether the witness was "unavailable" within the meaning of the Dictionary to the Evidence Act. If that question was resolved against the Crown, the Crown wished to seek instructions from the Director before proceeding further with the s 65 application.

Legal Issues

  • Whether the witness was "mentally or physically unable to give evidence" within the meaning of cl 4(1)(c) of Pt 2 of the Dictionary to the Evidence Act 1995 (NSW)
  • Whether it was reasonably practicable for the witness to overcome any such inability
  • Whether all reasonable steps had been taken to secure the witness's attendance, given that a subpoena had been served but no warrant sought
  • Whether other medical conditions identified in evidence separately rendered the witness unavailable

Decision

Issue 1: Mental inability to give evidence due to anxiety

Campbell J found that the witness is not mentally unable to give evidence within the meaning of cl 4(1)(c). The evidence established that she has a lifelong personality trait of high anxiety, supported by expert evidence from a clinical and forensic psychologist, Dr Rodriguez, and a brief certificate from her general practitioner. However, Dr Rodriguez explicitly made no diagnosis and confirmed he would need more than a single consultation, and likely neuropsychological testing, before any psychiatric diagnosis could be made (at [13]-[14]). The witness has no previous psychiatric history, has never received treatment for anxiety, and has never been prescribed medication for the condition (at [14]).

Applying the Court of Appeal's decision in Clancy v Plaintiffs A, B, C and D [2022] NSWCA 119, Campbell J held that establishing mental inability to give evidence requires more than showing that giving evidence will induce anxiety or nervousness, at least where that anxiety falls within the broad range of normality (at [23]). A personality trait of anxiety, even at the more pronounced end of the spectrum, does not cross the line into a recognised psychiatric illness capable of grounding unavailability (at [24]).

Issue 2: Reasonable practicability of overcoming any inability

Campbell J went on to find that, even if the witness were mentally unable to give evidence, it had not been established that it was not reasonably practicable for her to overcome that inability. The witness had already participated in a 30-minute AVL consultation with the expert psychologist. Campbell J noted that arrangements could be made for her to give evidence by AVL from Wollongong, with regular breaks and an appropriate support person, avoiding the need to travel to what she might find a hostile court environment. Witness assistance officers had already supported other vulnerable witnesses in AVL evidence during the trial (at [25]).

Issue 3: Steps taken to secure attendance

Campbell J found that the mere service of a subpoena does not constitute the taking of all reasonable steps to secure a witness's attendance without more (at [27]). Where the significance of the case warrants it, the party issuing the subpoena would need to go further, including seeking a warrant for the witness's arrest from the court. What followed from such a warrant remained a matter for the party to consider (at [27]).

Issue 4: Other medical conditions

The court did not act on separately identified medical conditions because there was no medical opinion before it explaining the significance of those conditions to the witness's ability to give evidence. The existence of test results alone, without explanatory expert evidence, was insufficient to establish unavailability on the balance of probabilities (at [28]).

Orders Made

  • Mrs Yvonne De Graaff is not unavailable within the meaning of s 65 of the Evidence Act 1995 (NSW).

Key Takeaways

  • Under s 65 of the Evidence Act 1995 (NSW), a witness's personality trait of anxiety, even if pronounced, does not establish mental inability to give evidence where that anxiety falls within the broad range of normality and has not been diagnosed as a recognised psychiatric illness (at [23]-[24]).

  • The Court of Appeal's reasoning in Clancy confirmed that the fact that giving evidence may be detrimental to a witness's psychological health and welfare does not, of itself, render that witness unavailable within the meaning of the Evidence Act (at [20]-[21]).

  • AVL arrangements, regular breaks, and the presence of a support person are relevant to whether it is reasonably practicable to overcome a witness's difficulty in giving evidence, and may defeat the "not reasonably practicable" limb of the unavailability test even where some difficulty is accepted (at [25]).

  • Service of a subpoena alone does not satisfy the requirement that all reasonable steps have been taken to secure a witness's attendance. Where the significance of the case warrants it, seeking a warrant for arrest may also be required (at [27]).

  • Where medical conditions other than those addressed by expert evidence are relied upon, bare test results without explanatory medical opinion as to the impact on the witness's ability to give evidence are insufficient to establish unavailability on the balance of probabilities (at [28]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 63, 65, 142, 165, Pt 2 Dictionary

Cases
- Alzway v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119