R v Cairney (No 22)

On 27 June 2025, Mr Cairney was convicted by the verdict of his jury of the murder of Jason Smith at Wollongong on 22 December 2022. He was to stand before this Court for the hearing of the proceedings on sentence today.

On 12 November 2025, the matter was mentioned before me, when I was informed by Ms Climo of counsel, who had appeared for Mr Cairney at the trial and for a considerable time beforehand, that in accordance with the provisions of the New South Wales Barrister’s Rules, circumstances had arisen which required her to return the brief. I was also informed that Ms Climo’s instructing solicitor, Ms Ralph, who had been involved in the case at least since the start of the trial, was also in a position where she was required to terminate her retainer. When I say “required”, in respect of each of counsel and solicitor, I mean to say that, in the circumstances, they had no discretion other than to withdraw from the case.

As Mr Cairney is yet to be sentenced and there is further evidence to be taken which would be relevant to the proceedings on sentence, it does not behove a judge in my position to enquire further into the reasons for the mandatory return of the brief, lest I trespass on the ground protected by the fundamental doctrine of legal professional privilege. Accordingly, I am required to accept the limited explanation proffered in the good faith relying upon the good judgment of counsel and solicitor seeking to withdraw.

Of course, a person standing for sentence on the most serious criminal offence known to the criminal law is entitled to the benefit of counsel and so much should go without saying. No doubt, this would be well understood by all members of the legal profession and the broader community. Nonetheless, having regard to the history of the case, it is very regrettable that those circumstances have arisen.

As I have remarked during my discussion with Mr Allan, solicitor advocate, who appears on behalf of the Crown today (and appeared as the junior to Ms Ratcliffe, Crown Prosecutor at the trial) and Mr Jamieson, who has now been retained to represent Mr Cairney as his solicitor, Mr Cairney has been in custody bail refused since the date of his arrest by investigating police on 22 December 2022, being the day of the events which led to what the jury decided was the murder of Mr Smith. That is a period of approximately two years and eleven months.

He was arraigned in this Court on 9 December 2023. Due to the pressure on the courts at Wollongong at the time, the earliest date available for a trial with (what was at that time) a three-week estimate was 19 November 2024; nearly twelve months after the arraignment date. The trial was allocated to me as trial judge and, after lengthy pre-trial legal argument in Sydney then Wollongong, a jury was empanelled in Wollongong on 21 November 2024, and Mr Cairney was put in their charge.

For reasons I have fully explained in earlier judgments in this case, due to the late service of material evidence after the empanelment of the jury and after the opening of the Crown Prosecutor and Ms Climo of counsel, I formed the view that it was unfair to the accused to continue the trial in those circumstances before the jury then empanelled. Accordingly, I acceded to the defence application to discharge the jury on 24 November 2024.

At that stage, there was insufficient time remaining in the then current law term to re-empanel a jury and start again. In any event, not unreasonably, the defence sought time to comprehend the new evidence and to take whatever steps then available to counsel and solicitor to meet it.

Due to the professional commitments of both Ms Ratcliffe and Ms Climo, the earliest date for trial that the Court was able to allocate was 19 May 2025. In the meantime, there were further days set aside for the hearing of further legal argument where I was required to provide rulings on various pre-trial objections. In any event, the trial exceeded its estimate, as happens not infrequently. The jury were empanelled on 21 May 2025, the legal argument continued, and opening addresses did not occur until 23 May 2025, as I recall the circumstances. The jury did not retire to deliberate until 25 June 2025 and returned their verdict on 27 June 2025.

There were complex questions of primary fact and a good deal of contested lay and expert evidence led, all of which required the close attention of the jury. Notwithstanding the amount of time that had been set aside in advance of the trial to make any necessary pre-trial rulings as to the evidence, there were also a number of matters of that nature which arose during the trial which necessitated argument in the absence of the jury, all of which added to the length of the trial.

As is normal practice in this Court, the proceedings on sentence were only formally commenced by the tender of Mr Cairney's antecedents, as they are put, and the matter was then adjourned to enable both parties the time necessary to consider whether any further evidence was necessary to be led on the proceedings on sentence. In cases involving very serious matters such as this, this timetabling is normal. On 9 July 2025, I fixed the proceedings on sentence for today, 21 November 2025, which was the earliest date available accommodating my availability and the availability of counsel on each side of the record.

The circumstance that Ms Climo and Ms Ralph were bound to withdraw by the ethical rules governing their respective professions necessitates an adjournment. As I have already remarked, fundamentally a person charged with any serious indictable offence, let alone murder, is entitled to the benefit of counsel after conviction for the proceedings on sentence.

I have already sought to explain what contributed to the length of the trial. I did so because Mr Jamieson, in his affidavit of 19 November 2025, points out that the transcript of the trial is extremely lengthy. I think, during the course of the mention on 12 November 2025, I may have been reminded that the trial transcript runs to some 2,000 pages.

Although the jury have authoritatively decided the matter of Mr Cairney's guilt, it is not uncommon for there to be a dispute about what facts I should find underpinning Mr Cairney's culpability for the purpose of sentencing. As all lawyers know, the verdict of the jury is inscrutable. The deliberations of the jury are conducted in private, and they are entirely confidential and may not be disclosed by any person, under penalty of law. While the jury's function is concerned with the question of criminal responsibility, mine is different in that I am concerned with the question of culpability. Although my findings of fact must be consistent with the jury's verdict, the different function means that, in the event of dispute, I have to make my own decision about what the primary facts are, because it would be improper for me to attempt, as it were, to peer into the jury room or second-guess the jury as to the reasons for their verdict, which may have differed from juror to juror. I make these observations to explain that, obviously, new counsel and solicitor coming into the matter in the circumstances which I have described are at a considerable disadvantage and require an appropriate amount of time to familiarise themselves with the evidence. It is only then that Mr Cairney may be properly and ably represented in the proceedings on sentence.

At this time of year with the end of the 2025 law term and the January 2026 “long vacation” fast approaching, the earliest possible dates available to resume the hearing of the proceedings on sentence are in February or perhaps March 2026.

Mr Cairney, may I say with respect, is indeed fortunate that Mr Jamieson has been able to take conduct of the proceedings and that he has secured the appearance of Mr Stratton of learned senior counsel to represent Mr Cairney on the proceedings on sentence. However, both Mr Stratton SC and Mr Jamieson will need, as I have been explaining at length, sufficient time to get across the material.

It is also important that the Crown Prosecutor who appeared at the trial should also appear at the proceedings on sentence if at all possible, all the more so because of the necessary change in Mr Cairney’s representation, and I am informed by Mr Allan that Ms Ratcliffe is not available for personal reasons until the last week in February 2026.

Looking at the availability of the Court, it is not just a question of my availability - I would make myself available at the earliest possible date - but also of accommodating the Court's other commitments in both the civil and criminal list. Notwithstanding the availability of some dates in February, as it happens, the earliest date which can accommodate the availability of the parties and the Court is Friday, 13 March 2026.

I have taken the time to explain the course of the proceedings in this Court because although since June 2025, Mr Cairney has been a convicted person who is awaiting sentence, it is generally unsatisfactory that a person charged, even with the most serious offence of murder, should remain in custody for what will ultimately be nearly three and one quarter years before he is sentenced. It is only, obviously, after Mr Cairney is sentenced that he truly knows the outcome of the trial process. While he remains in custody awaiting sentence, naturally, he will be subject to anxiety, given the uncertainty over, if I may put it this way, his fate. However, I am satisfied that the interests of justice require that I grant Mr Cairney the adjournment that Mr Jamieson seeks and allow the time necessary for the proper presentation of the evidence and argument so that a sentence which fits both the offence and the offender can be passed.

For those reasons, the proceedings on sentence fixed for today are adjourned. I relist the proceedings on sentence for hearing before me on Friday 13 March 2026 at 10am.

For completeness, my orders are as follows: