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Supreme Court 11 June 2025

R v Cairney (No 16)

[2025] NSWSC 720

Homicide
EVIDENCE CROWN APPLICATION TO CROSS EXAMINE UNFAVOURABLE WITNESS S 38(3) EVIDENCE ACT

Citation: R v Cairney (No 16) [2025] NSWSC 720
Court: Supreme Court of New South Wales
Date: 11 June 2025
Judge: Campbell J

Background

The accused stands trial for murder arising from events on 18 December 2022. The Crown was obliged to call a witness, Ms Ponfield, who was present during a substantial portion of the events relevant to the trial, including a confrontation in and around a residential property. Her evidence tended to support a case of self-defence or defence of others on behalf of the accused.

The Crown had earlier obtained leave under s 38(1) of the Evidence Act 1995 (NSW) to cross-examine Ms Ponfield as an unfavourable witness on a number of specific topics. That cross-examination was already underway when the Crown brought a further application for leave under s 38(3) to cross-examine Ms Ponfield as to her credit generally.

The defence opposed the application, arguing that general credit cross-examination would be unfair to the accused. Campbell J heard and determined the application before Ms Ponfield's evidence resumed.

Legal Issues

  • Whether the Crown should be granted leave under s 38(3) of the Evidence Act to cross-examine its own witness as to her credibility generally
  • Whether such cross-examination would be unfair to the accused, having regard to s 192 of the Evidence Act
  • What role the rule in Browne v Dunn plays in the context of s 38 cross-examination of an unfavourable witness in a criminal trial
  • Whether fairness to the witness herself is a relevant consideration in deciding whether to grant leave under s 38(3)

Decision

Issue 1: The s 38(3) application and fairness to the accused

Campbell J found that the Crown's cross-examination on the topics already permitted under s 38(1) had implicitly raised the proposition that Ms Ponfield had not told the whole truth, at least in part out of a desire to assist the accused (at [11]-[12]). Because that proposition was already implicit in the existing cross-examination, refusing leave would have left it hanging before the jury without Ms Ponfield having had an opportunity to respond to it (at [16]). The judge concluded that granting leave was not unfair to the accused: the Crown bears the legal burden of negating self-defence beyond reasonable doubt, and the cross-examination was taking place at the end of evidence-in-chief before defence cross-examination (at [15]).

Issue 2: Fairness to the witness

Campbell J identified fairness to the witness as an independent consideration. Where leave has been granted under s 38(1) and cross-examination already implies that a witness has withheld evidence, elementary fairness requires that the witness be given the opportunity to respond to that proposition directly (at [13], [16]). Refusing leave in those circumstances would itself be unfair to Ms Ponfield (at [16]).

Issue 3: The rule in Browne v Dunn and s 38

The court observed that leave under s 38 cannot be granted purely for the purpose of discharging the rule in Browne v Dunn, but that the rule nevertheless has real consequences for the Crown in how it presents its case to the jury, particularly where it seeks to impugn a witness's reliability (at [6]). The principles from ZL v R [2023] NSWCCA 279, as stated by Adamson J, informed the court's analysis of how those considerations interact in a criminal trial (at [7]-[8]).

Issue 4: Scope of leave granted

The court declined to give leave for credit cross-examination that was entirely "at large." Leave was confined to putting the logical conclusion of the existing line of cross-examination: that the various inconsistencies, omissions and at least one potential deliberate falsehood indicated that Ms Ponfield was tailoring her evidence, or avoiding directly engaging with propositions, in order to present her account in the best light for the accused (at [19]-[20]).

Orders Made

  • Pursuant to s 38(3) of the Evidence Act 1995 (NSW), leave is granted for the Crown to cross-examine Ms Ponfield as to her credibility, subject to the reasons given by Campbell J.

Key Takeaways

  • Under s 38(3) of the Evidence Act, leave to cross-examine a party's own witness as to credit may be granted where cross-examination already permitted under s 38(1) has implicitly raised a proposition about that witness's honesty, and the witness has not yet had the opportunity to respond to it directly (at [13], [16]).
  • Fairness to a witness is a distinct consideration in the s 38 analysis, separate from fairness to the accused or to the Crown; where cross-examination has already impugned a witness's completeness, withholding leave may itself be unfair to that witness (at [4], [16]).
  • Although the rule in Browne v Dunn does not independently ground a grant of leave under s 38, the Supreme Court confirmed it remains relevant to how the Crown conducts its case and presents challenges to witness reliability before the jury (at [6]).
  • Leave under s 38(3) for general credit cross-examination need not be unlimited; the court may confine it to putting the logical conclusion of the cross-examination already underway, rather than permitting cross-examination entirely at large (at [19]).
  • Where a Crown witness's evidence supports a defence of self-defence or defence of others, the Crown's entitlement to challenge that evidence under s 38 is informed by its legal burden of negativing those defences beyond reasonable doubt (at [10], [15]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 38 , 102, 106

Cases
- Browne v Dunn (1893) 6 R 67
- ZL v R [2023] NSWCCA 279