R v Cairney (No 6)

For reasons I gave on Monday, 25 November 2024, it was necessary for me to discharge the jury in this trial and to allow an adjournment to enable the accused to meet new prosecution evidence that had been served on Friday, 22 November 2024 and over the following weekend (see [2024] NSWSC 1513). I will not go over that ground again.

My preference would have been to accede to the Crown application to have re‑empanelled a jury on either Tuesday (26 November) or Wednesday (27 November) as I was informed panels were available. However, I repeat, for the reasons that I fully rehearsed in my oral judgment on Monday, I decided that it was obvious the interests of justice required a longer adjournment than that. What is still obvious today is the limited availability of Court space rather than judicial time during 2025 in this bustling and busy city of Wollongong. This city is served by a large courthouse having, I think, seven courtrooms. But it is also a busy judicial precinct. The District Court sits here permanently with additional judges rotating on circuit to Wollongong as necessary. There is also a large complement of Local Court magistrates sitting permanently. My arithmetic could be wrong, but I counted as many as five sitting here on one day earlier this week. Accordingly, notwithstanding the position of the Supreme Court in the judicial hierarchy of this State, there is limited space available in the courthouse to accommodate Supreme Court trials as and when they arise.

There is an important but not inflexible rule of practice that the trial of serious indictable offences should be conducted so far as it is within the power of the Court to arrange it in the locality where the events giving rise to the charge occurred. This practice finds its roots in the common law, probably since before extant records of the decisions of the Royal Courts of Justice in the medieval period first appear. This practice has been observed not only in New South Wales, but also throughout what is now the Commonwealth of Australia since colonial times. There are many sound reasons of policy why this practice has endured over so many centuries, which explain why it is considered to be an important rule of practice. Naturally, justice must not only be done but must be seen to be done. Holding trials in regional centres gives the local community, who have the important constitutional obligation to provide the jury to adjudicate the guilt or innocence of accused persons, direct access to the Court so they can see for themselves the evidence that the jury receive and can satisfy themselves that justice, according to the high standards under which it is administered in this State, is done in the given case.

For these reasons, the Supreme Court, which this year celebrated its bicentenary, has from the time of its establishment conducted trials on circuit in cities and the larger towns throughout New South Wales. However, as I have already said, the rule is not of inflexible application.

As Johnson J pointed out in R v Turnbull (No 1) [2016] NSWSC 189, the rule is one of practice and not of law (at [68]). That the rule is not an inflexible one is recognised by the Parliament, which has empowered the Court under s 30 Criminal Procedure Act 1986 (NSW) to make orders changing the venue fixed for a trial. Section 30 is in the following terms:

As Johnson J pointed out in Turnbull (at [69]):

In the present case no question arises about the application of s 30(a). I am well and truly satisfied that a fair and unprejudiced trial can be held here in Wollongong, notwithstanding that the present case may have garnered a certain degree of local notoriety. Rather, the question is whether s 30(b) is engaged; and I remind myself that question is whether “for any other reason it is expedient to do so”. In this regard, “expedient” should be understood as meaning “expedient in the interests of justice”, and not merely expedient simpliciter for some other less important reason. In the present case the question for consideration relates to the delay inherent in the adjournment of any criminal trial involving a serious indictable offence.

As I have remarked more than once, this trial concerns the most serious offence known to criminal law, with the sole exception of treason, of murder. The question of expedience in the interests of justice arises because Mr Smith’s death was caused by the accused stabbing him as long ago as 18 December 2022. At the time of his arraignment in the Supreme Court, about 12 months ago, the dates fixed for the commencement of this trial on 18 November 2024 were the earliest available dates in Wollongong. Regrettably, and as I have observed a number of times in my previous judgments, the adjournment has been occasioned by the service of new evidence by the prosecution after the trial had commenced and the jury had been empanelled. While I do not propose to repeat those matters, it is important to record here that the need for the adjournment was in no way occasioned by any conduct of the accused or his legal representatives, Ms Johnson, solicitor, and Ms Climo of counsel.

While the trial is to be doubtless - and has been so far - hard fought, the material that has been served and exchanged between the parties does give rise to a serious question to be tried about whether the Crown can exclude beyond reasonable doubt the question of self-defence. I intend to indicate no judgment about that matter, but I do wish to say that if the Crown is unable to exclude self-defence, the accused will be entitled to be acquitted; and even if only the second limb of self-defence is excluded, he will be entitled to the jury bringing in a verdict of not guilty of murder but guilty of manslaughter.

Obviously in such circumstances the interests of justice are heavily encroached upon by the consideration that a person who is presumed to be innocent has been, for the purposes of the criminal law, held in custody for as long as two years already. If the matter is to continue in Wollongong, that period will be one approaching three years by the time a trial commencing on the first available date produces a verdict. That is a matter which must be of significant concern not only to the Court but also to all reasonably informed members of the public.

I bear in mind the important rule of practice I have referred to and more particularly the reasons for it. I also bear in mind the contents of the affidavit of Mr James Loosley, solicitor, affirmed on 27 November 2024, concerning the inconvenience that certain lay witnesses will experience if the venue is changed to Sydney. I will return to that affidavit in a moment.

I also bear in mind that Sydney is not that far from Wollongong. The journey by train to the centre of the city takes about one- and one-half hours. Martin Place Railway Station, part of the Illawarra line, is but a short walk from the King Street complex where criminal trials in the Supreme Court sitting at Sydney are held.

I accept that a number of the witnesses are of more senior years and, consistently perhaps with their age, have various health issues resulting in reduced mobility. Reference is made in that regard by Mr Loosley based upon the inquiries of Detective Sergeant Piggott to Ms Mann and Ms Williams. I am also aware that Ms Shailes has burdensome family responsibilities relating to the serious health complaints of two of her three children and she has limited family support available in either Sydney or Wollongong.

Mr Power, from whom I have already heard in part, would prefer not to travel to Sydney due to work and childcare commitments. I infer the latter in relation to his grandchildren. I should observe, however, that work commitments are rarely accepted as being a reason not to travel for court.

Another witness referred to by Mr Loosley, in any event, is a vulnerable person as defined by statute who will be entitled to give evidence remotely. It would seem to me that there would be no reason why that remote evidence could not be taken equally from Wollongong as from some location at Sydney.

In relation to those witnesses who have particular issues, doubtless any application for any special arrangement to be made to take their evidence would be dealt with sympathetically. The witnesses who have expressed a concern number five from a total complement of about 14 lay witnesses in accordance with the Crown’s current intentions.

Returning to the reasons for the important but not inflexible rule, one has to assume for the purpose of the administration of justice that the measure of justice will be the same whether a jury is drawn from the Wollongong community or the Sydney community. One assumes that the measure of justice will be the same, whether the tribunal of fact is a jury or a judge sitting alone. The demographics of the communities throughout the State may, to demographers, vary significantly, but for the purpose of the law, the measure of justice administered by juries wherever they are drawn from is always of the same high standard.

I have also had regard to the availability of counsel. Normally the Court does not place much weight on the availability of counsel, for the obvious reason that it is in the community interest that cases be listed as soon as they can be rather than to suit the availability of one participant or another in the criminal justice system. Having said that, given the mature level of preparation so far achieved, including the consideration that the trial has started, albeit aborted, I have done my best to take into account the availability of both Ms Ratcliffe, Crown Prosecutor, and Ms Climo, public defender who appears for Mr Cairney.

Unfortunately, I have been unable, at least on the face of things, to suit them both, and I have given a little more weight to defence counsel’s availability given the nature of the relationship between an individual who is accused of a serious crime and his or her counsel when compared to the more abstract nature of the relationship between the community and the Crown Prosecutor representing the community. Having said that, I repeat, I am very conscious of the consideration that both counsel have invested a great deal of time and effort into being fully prepared for the proper presentation of the trial and the need for duplication of that effort by others due to an adjournment is contrary to the public interest in the efficient administration of criminal justice.

In any event, for the reasons I have given, and having a particular regard to the limited availability of court infrastructure in Wollongong during 2025, I am of the view that I should direct that the venue for this trial be changed from Wollongong to Sydney, and I propose fix the matter to commence on 19 May 2025, which is not the earliest available date in Sydney but is a much earlier date than is currently available in Wollongong.

I make the following orders: