Citation: R v Cairney (No 18) [2025] NSWSC 782
Court: Supreme Court of New South Wales
Date: 12 June 2025
Judge(s): Campbell J
Background
The accused stands trial for the alleged stabbing of Jason Smith. An eyewitness was giving evidence in chief when the Crown sought to show him photographs to assist him in indicating where he observed certain persons at the scene.
The photographs in question were not the originals attached to the witness's police statement. The Crown withdrew reliance on those originals and instead proposed using three photographs taken by the officer in charge, Detective Sergeant Piggott, approximately 19 months after the events in question. Two of the three photographs had been digitally zoomed in and did not represent the naked-eye view of the location.
Defence counsel objected on the basis that there was no direct evidence establishing the relevance of the vantage point from which the photographs were taken, and that the degree of digital zooming applied to photographs 2 and 3 had not been precisely established.
Legal Issues
- Whether photographs taken 19 months after the events, including digitally zoomed images, were admissible to assist the eyewitness in illustrating his oral evidence
- Whether the admission of such photographs should be limited in purpose under s 136 of the Evidence Act 1995 (NSW)
- Whether the jury required a direction about the limited use that could be made of the photographs
- Whether only the single unenhanced photograph should be used, or whether zoomed photographs could also be admitted
Decision
Admissibility of the photographs as illustrative evidence
Campbell J found that placing photographs before a witness in the witness box and asking him to mark the positions of persons he observed at the relevant time is an entirely routine and appropriate method of eliciting and illustrating witness evidence (at [5]). The fact that the photographs were taken 19 months after the events and had been digitally enhanced did not render them inadmissible for that limited purpose (at [2], [5]).
Limiting the purpose under s 136 of the Evidence Act
The court determined that any risk of confusion arising from the photographs' provenance and enhancement could be addressed by limiting their admitted purpose under s 136 of the Evidence Act (at [6]). The photographs were admitted only to illustrate the witness's oral evidence, not as real evidence of what could actually be seen from the witness's balcony at the relevant time (at [6]).
Jury direction
Campbell J ruled that the jury should be given a specific direction warning them that the photographs serve only the limited illustrative purpose identified, and that they are not to treat the photographs as evidence of what could actually be seen from the balcony (at [6]).
Number and type of photographs to be used
The court gave consideration to defence counsel's submission that only the single unenhanced photograph should be used (at [8]). Campbell J acknowledged the concern but noted that the unenhanced photograph's scale might make it difficult to mark intelligibly (at [8]). The court indicated that photograph 1 could be shown first, and then one of photographs 2 or 3 could be used to make the evidence intelligible to the jury, resulting in two photographs being used for illustrative purposes (at [8]).
Orders Made
- Two photographs taken by Detective Sergeant Piggott are admissible evidence to be put before the eyewitness during examination in chief for the limited purpose of illustrating his oral evidence.
Key Takeaways
- Photographs taken well after the events in question, including digitally enhanced or zoomed images, may be admitted during a criminal trial for the limited purpose of assisting a witness to illustrate oral evidence already given.
- Under s 136 of the Evidence Act 1995 (NSW), a court may limit the purpose for which photographs are admitted, preventing the jury from treating illustrative photographs as substantive evidence of the actual scene or view in question (at [6]).
- A jury direction is an appropriate mechanism to manage any risk that illustrative photographs are misused as real or direct evidence of the scene (at [6]).
- Where an unenhanced photograph is too small in scale to be marked intelligibly, a court may permit a digitally zoomed photograph to also be used, provided the admitted purpose remains appropriately limited (at [8]).
- The ruling was made as a prospective ruling under s 192A of the Evidence Act 1995 (NSW), which permits courts to make advance rulings on the admissibility of evidence before it is formally tendered (at [10]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 66, 136, 192A
Cases
- Not stated