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Supreme Court 12 June 2025

R v Cairney (No 17)

[2025] NSWSC 750

Homicide
EVIDENCE FAIRNESS TO A WITNESS DIRECTIONS TO JURY EXAMINATION WHERE RE HELD NO FURTHER JURY DIRECTION REQUIRED

Citation: R v Cairney (No 17) [2025] NSWSC 750
Court: Supreme Court of New South Wales
Date: 12 June 2025
Judge: Campbell J

Background

This decision is one instalment in an ongoing murder trial. The accused's de facto partner, Ms Ponfield, gave evidence as a witness. During cross-examination by defence counsel, segments of dashcam footage (Exhibit O) were shown to her, and she was questioned about what she observed and her actions in the footage.

On re-examination, the Crown elicited that Ms Ponfield had previously seen some of the dashcam footage. She appeared to indicate, by gesture, that she had seen it with members of the accused's legal team. Defence counsel objected on grounds of legal professional privilege, and the objection was upheld.

A separate issue arose when the Crown's re-examination moved to questions about whether Ms Ponfield had been struck on the head by the deceased, Mr Smith. Defence counsel objected that those questions constituted impermissible cross-examination outside the court's earlier rulings. The court upheld that objection and directed the jury to disregard the exchange. Defence counsel then sought a further, more detailed jury direction addressing both matters. The court's ruling on that application is the subject of this decision.

Legal Issues

  • Whether the Crown's re-examination of Ms Ponfield about her prior viewing of the dashcam footage was admissible without leave under s 39 of the Evidence Act 1995 (NSW).
  • Whether a question directed to where Ms Ponfield had seen the footage was properly disallowed on grounds of legal professional privilege.
  • Whether the Crown's questions about whether Ms Ponfield was struck on the head amounted to impermissible cross-examination outside earlier rulings.
  • Whether the court should give the additional jury direction proposed by the defence (MFI-51) in relation to either matter.

Decision

Issue 1: Admissibility of re-examination on prior viewing of dashcam footage

The court held that the questions about whether Ms Ponfield had previously seen the dashcam footage arose directly out of cross-examination and were therefore admissible as re-examination without leave under s 39 of the Evidence Act (at [3]). The court noted that re-examination on matters arising from cross-examination had always been permitted, both before and after the Evidence Act was enacted (at [5]). The Crown's re-examination on this topic was found to have been conducted properly and not in breach of the rules of evidence (at [9]).

Issue 2: Legal professional privilege objection

When the Crown asked where Ms Ponfield had seen some of the footage, defence counsel objected on the basis of legal professional privilege. The court upheld that objection and directed the Crown not to ask about any communications between Ms Ponfield and the accused's legal representatives (at [6]-[7]). The court had separately given the jury a direction at the close of Ms Ponfield's evidence to dispel any impression that showing dashcam footage to a witness before trial involved any impropriety (at [16]).

Issue 3: Cross-examination outside earlier rulings

The court found that questions asking Ms Ponfield to address the state of mind of Mr Smith, rather than matters within her own knowledge, crossed into cross-examination. Those questions were outside the court's earlier rulings and were not authorised under s 38 of the Evidence Act (at [11]-[12]). The Crown's question was withdrawn, and the court immediately directed the jury to disregard the exchange (at [14]).

Issue 4: Proposed further jury direction (MFI-51)

The court declined to give the direction proposed by the defence in MFI-51. On the first paragraph of the proposed direction, the court declined to endorse the characterisation of evidence rules as being primarily directed at fairness to witnesses, noting that the main purpose of evidence rules is to ensure the tribunal of fact receives only reliable evidence (at [18]). On the second paragraph, the court would not direct the jury to disregard Ms Ponfield's answers about prior viewing, as that evidence had been admitted properly (at [19]). On the third paragraph, the court had already directed the jury to disregard the impugned exchange and saw no utility in revisiting that ground, as doing so risked raising more questions in the jury's mind than it resolved (at [20]). The court remained prepared, if specifically requested, to supplement its earlier direction by directly addressing the showing of footage to witnesses in conference, but refused to give MFI-51 as proposed (at [22]-[23]).

Orders Made

  • The proposed re-direction to the jury regarding the Crown's re-examination on Ms Ponfield's prior viewing of the dashcam footage and cross-examination concerning whether she was struck by the deceased, as proposed by the defence, is refused.

Key Takeaways

  • Questions asked during re-examination that arise directly from matters raised in cross-examination are admissible without leave under s 39 of the Evidence Act 1995 (NSW); the court confirmed that this reflects longstanding practice both before and after the Act's enactment (at [3], [5]).

  • Where re-examination would elicit information about communications between a witness and an accused's legal representatives, an objection on the ground of legal professional privilege is properly upheld (at [6]-[7]).

  • A prompt direction to the jury to disregard an impermissible exchange can be sufficient, without requiring a further or more elaborate direction; the court found that revisiting the matter risked drawing greater attention to it than was warranted (at [20]).

  • The main purpose of the rules of evidence, as the court stated, is to ensure that the tribunal of fact receives only reliable evidence. The rules are not primarily directed at fairness to witnesses, although some rules do serve that subsidiary purpose (at [18]).

  • Showing a witness dashcam footage that forms part of the evidence in a trial, in conference with legal representatives, does not of itself involve any impropriety; the court was prepared to give a targeted direction to that effect if specifically requested (at [22]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 38, 39

Cases
- Browne v Dunn (1893) 6 R 67)