Citation: R v Cairney (No 21) [2025] NSWSC 794
Court: Supreme Court of New South Wales
Date: 23 May 2025
Judge: Campbell J
Background
The accused stood trial for the fatal stabbing of the deceased at a residential address on Turner Esplanade. It was not in dispute that the accused caused the death by a single stab wound to the upper chest. The central contest at trial concerned whether the accused acted in self-defence.
The Crown sought to tender a compilation video (Exhibit O) assembled from 22 clips drawn from multiple sources, including dashcam footage, a ring doorbell camera, and a smartphone recording made by a young person whose identity is protected by statute. The defence objected to five clips within that compilation on various grounds going to authenticity, chain of custody, and the risk of unfair prejudice.
The court heard argument on 22 May 2025, delivered rulings on 23 May 2025 prior to empanelment, and reserved written reasons in the form of this judgment.
Legal Issues
- Whether a Snapchat recording of a plastic bottle (clip 15) was admissible where the download method could not accurately establish when the recording was made, as opposed to when it was viewed
- Whether a 14-second ring camera audio recording (clip 19) was admissible where the timestamp had not been accurately proved and the words allegedly spoken by the accused were disputed as indecipherable
- Whether clip 19 should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the risk of unfair prejudice
- Whether dashcam footage showing the deceased emerging fatally wounded from the backyard (clip 20) was admissible
Decision
Clip 15 (Snapchat recording of the bottle):
The court admitted clip 15 as relevant evidence that a plastic bottle containing a flammable petroleum product was at the premises no later than 5:52:01 p.m. on 18 December 2022, well before the stabbing (at [10]-[11]). The court acknowledged that the Cellebrite download from the phone could not reliably establish when the recording was made, as distinct from when it was viewed, and that there was no expert evidence about how Snapchat operated (at [9], [11]). Despite those limitations, the court regarded the evidence as capable of cutting both ways: it supported the self-defence narrative by confirming the bottle's existence, but also potentially suggested the arson threat had been neutralised by the time the bottle came into the residents' possession (at [10]).
Clip 19 (Ring camera audio, 14 seconds):
The court admitted clip 19, finding it relevant as a recording of words uttered by the accused during the final confrontation with the deceased in the backyard (at [15]). The court also held the clip fell within the common law res gestae exception to the hearsay rule, preserved by s 9 of the Evidence Act 1995 (NSW) (at [16]). The court acknowledged uncertainty about whether the words were contemporaneous with the stabbing itself, noting a 40-second gap before the deceased appeared on the dashcam footage, but characterised those questions as matters for the jury (at [15]). Clip 19 was also considered relevant to the accused's state of mind or intent at the time he inflicted the fatal wound (at [12]).
Exclusion under s 137 (clip 19):
The court declined to exclude clip 19 under s 137 of the Evidence Act 1995 (NSW) (at [16]). The defence had not identified the specific unfair prejudice to be weighed against probative value, and the court was not satisfied that any such prejudice outweighed the clip's probative value. The court also emphasised that clip 19 formed only a small part of the broader compilation rather than standing alone (at [16]).
Words attributed to the accused in clip 19:
Notwithstanding admission of clip 19, the court ruled that the Crown could not open on the specific profanity it contended was audible, because the court was not satisfied on the balance of probabilities that those words were decipherable, even after multiple playings in chambers and in open court (at [7], [16]). The court declined to make an advance ruling on whether the Crown could rely on the words in closing address, indicating it would revisit the question at an appropriate time during the trial (at [7]).
Clip 20 (Dashcam footage of the deceased):
The court admitted clip 20 as admissible evidence of the immediate aftermath of the fatal stabbing, relevant to proving what occurred (at [18]).
Clips 21 and 22:
These clips were ultimately omitted from Exhibit O by agreement between counsel and did not require substantive reasons (at [5], [18]).
Orders Made
No orders were made in this decision.
Key Takeaways
- An audio recording made during a final confrontation between an accused and a deceased may be admissible as res gestae under common law, preserved by s 9 of the Evidence Act 1995 (NSW), even where the precise moment of a fatal act within that confrontation cannot be pinpointed from the footage alone (at [16]).
- Under s 137 of the Evidence Act 1995 (NSW), a party seeking exclusion of evidence bears some responsibility for identifying the specific unfair prejudice to be weighed; where no such prejudice is identified and the evidence forms a small part of a larger compilation, exclusion may be declined (at [16]).
- Limitations in digital forensic methods, such as the inability of a Cellebrite download to distinguish the time a Snapchat recording was made from the time it was viewed, go to weight rather than admissibility, provided the evidence remains capable of establishing a relevant fact (at [9]-[11]).
- Where a court is not satisfied on the balance of probabilities that disputed words are decipherable on an audio recording, the Crown may be precluded from opening on those words even if the recording itself is admitted; the question of whether those words may be relied upon in closing address can be reserved for later in the trial (at [7], [16]).
- Dashcam footage depicting the immediate aftermath of a fatal stabbing is admissible as relevant evidence of what occurred, even where the content is distressing (at [18]).
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW) s 15A
- Evidence Act 1995 (NSW) s 137
Cases
- Not stated