R v Cairney (No 2)

1. [1]

   Mr Cairney is charged with the murder of Jason Smith in Wollongong on 18 December 2022. It is expected that a jury for the trial will be empanelled tomorrow, 21 November 2024, and I am dealing with outstanding pre-trial issues in relation to the admissibility of evidence.

2. [2]

   In my judgment of 7 November 2024, published so far in a restricted capacity as [2024] NSWSC 1451, I made rulings in relation to a tendency notice given on 31 July 2024 by the accused regarding tendencies of the deceased, being tendencies to act in a particular way. There were three tendencies propounded in that notice said to be supported by the evidence relied upon for the purpose of the application. Of those tendencies, the third tendency was formulated in this fashion:

3. [3]

   The material relied upon, as summarised in my earlier reasons, is the file in relation to a number of prosecutions of Mr Smith, most of which resulted in convictions and two of which were still pending at the date of his death. I ruled in relation to tendency 3 that the material did not support that tendency and I rejected the application in respect of it. Only one of the matters of which evidence was sought to be adduced as supporting the tendencies was capable of proving that tendency. On one occasion in a violent confrontation with two people, he produced a knife, being a steak knife.

4. [4]

   By the accused’s second tendency notice dated 13 November 2024, application is sought to prove that the deceased had a tendency to engage in confrontations using objects as offensive weapons. As I observed in my previous judgment, the evidence led before me on that application demonstrated that on a number of occasions, the deceased injured people by hitting them with a makeshift weapon or in one matter by throwing bottles and tiles at police: [2024] NSWSC 1451 at [31]. Essentially, I rejected the third tendency because I was not satisfied that one single occasion of producing a knife with which he was already armed was capable of establishing a tendency as such.

5. [5]

   The broader approach now taken, in a real sense, renders the tendency that is sought to be proved at a far greater level of abstraction than tendency 3 as propounded in the first tendency notice.

Issues

1. [6]

   It is important to bear in mind the nature of the issues as they have been explained to me by counsel. The Crown case against Mr Cairney, in a nutshell, is that during the course of a physical altercation between the two, the accused fatally stabbed the deceased. The material garnered in the investigation has given rise to the question of whether when he did so, the accused was acting in self-defence. Self-defence, of course, is a matter for the Crown to “negative”, as it is put, when it is properly raised, by application of the criminal standard of proof of beyond reasonable doubt.

2. [7]

   The matter going to self-defence is the account that the accused gave when he chose to speak to police in a formal interview in which he said that, and I am putting it in general terms, not precisely, that the deceased came at him with a knife and that he perceived it was necessary to act in his own defence by stabbing the deceased.

3. [8]

   The facts that Ms Climo of counsel, who appears for the accused, wishes to prove by reliance in part upon tendency evidence include the following (Submissions on behalf of the accused, at [17]):

4. [9]

   The language of “offensive weapon”, reasonably understood picks up how that expression is understood in the criminal law and as defined by s 4 Crimes Act 1900 (NSW). That definition is exhaustive but very broad. It is in the following terms:

5. [10]

   Without going through the factual context of each of the matters which are, as I have said, broadly summarised in my previous judgment and are fully set out in the tendency evidence bundle tendered by Ms Climo which I was taken through, the variety of objects said to be offensive weapons used by the deceased in the past are (Annexure A to the Submissions on behalf of the accused):

   1. (1)

      a broom handle (H…188);

   2. (2)

      another broom handle (H…651) where he attended the complainant’s house, armed with a broom handle, which he attempted to conceal;

   3. (3)

      a glass from which he had been drinking (H…969);

   4. (4)

      a metal dish rack (H…914);

   5. (5)

      a glass beer bottle and roof tiles (both H…365);

   6. (6)

      a large pot plant, a plastic pot plant and a fixed window-pane (H…678); and

   7. (7)

      a steak knife (H… 875).

Submissions

1. [11]

   Ms Climo submits that on the facts disclosed, other than perhaps the broom handle and the steak knife with which he was already armed, the accused is shown to have a tendency to opportunistically deploy as a weapon any object readily at hand capable of causing harm or inflicting injury upon the person with whom he was confronting. She points to the likely evidence in the present trial that at different times during what was an extended confrontation, perhaps in two parts, between the accused and the deceased, the deceased was variously deploying objects as weapons, including a metal tube or bar and, on the Crown case anyway, possibly a white electrical cable. Ms Climo further submits that on the account given to police by the accused, he also deployed a knife or, at least, it is reasonably possible that he did so, which is all the jury have to conclude in relation to the self-defence issue. Her submission, with respect, is that the variety of objects used or attempted to be used as weapons on these facts increases the probability so that it is of significant probative value in context, rather than diminishes the probabilities, that he came at the accused with a knife on the fatal day.

2. [12]

   Ms Ratcliffe, Crown Prosecutor, who appears with Mr Allan (solicitor advocate for the prosecution) does not take any issue in relation to the lateness of the second tendency notice so that s 97(1)(a) Evidence Act 1995 (NSW) is not in issue. As I understand her pertinently succinct argument, even if I were satisfied that the evidence was capable of satisfying the jury that the deceased had a tendency to arm himself with all manner of objects and things, spontaneously and otherwise when involved in a confrontation, that tendency did not provide significant probative value of the facts I have referred to as being in issue, particularly the tendency to arm himself with a knife and to use it in accordance with s 97(1)(b).

Ruling

1. [13]

   In my previous judgment (at [18]), I accepted the argument that given the absence of any duty on an accused person to prove anything and given the interplay of the criminal standard of proof with the entitlement of the jury to accept exculpatory accounts not rising beyond, in their judgment, a reasonable possibility the application of the expression significant probative value is obviously attenuated, if I can put it this way, in the hands of the accused when compared to the Crown. I will not go over the reasons why I came to that conclusion on the last occasion, but I adhere to that conclusion. However, it does seem to me that a tendency of the deceased to improvise with, or opportunistically take, whatever came to hand capable of causing harm or injury, if accepted by the jury, taken at its highest, does not have significant probative value for the purpose of giving rise to a reasonable possibility that he would take to hand a knife and seek to use it if one happened to be available on the occasion in question.

2. [14]

   I accept the evidence will be that the confrontation between the accused and the deceased related to the deceased overstaying his welcome at the home of the accused’s de facto partner and that his occupation of part of that property involved him residing in a trailer that was parked there which was, if I can put it this way, full of all manner of things which could be deployed in circumstances such that the definition of “offensive weapon” that I have referred to could be engaged. Nonetheless, I am of the view that out of the seven examples of objects said to have been deployed in the matters to which I have referred (at [10] above), he used a knife once; and it was not something which he used opportunistically or improvised, but he had it on his person at the time the confrontation arose. I am of the view that the degree of abstraction of the tendency now propounded is such that it cannot be said that a tendency formulated in the manner of the second tendency notice would provide the jury with circumstantial evidence capable of proving, even in conjunction with other admissible evidence, that the deceased had armed himself with a knife, on hand amongst his belongings in the trailer, which he sought to use against the accused. I am of the view that s 97 has not been engaged in the circumstances.

3. [15]

   My previous ruling in relation to the other tendencies was subject to matters of form. Although it will not be admissible as tendency evidence, the circumstance that in those previous matters, on each occasion, the deceased armed himself with some object he adapted as a weapon, subject to those questions of form, will be admissible, not as tendency evidence but as evidence of the facts relied upon to establish the tendency in the first place. However, I am not satisfied that, as I have said, and I repeat, that s 97 has been satisfied and I reject the application to rely upon the reformulation of the third tendency.