R v Cairney (No 3)

1. [1]

   On Thursday, 21 November 2024, a jury was empanelled to try the accused, Mr Paul Cairney, for the murder of the deceased, Mr Jason Smith. There is no issue that by his act Mr Cairney caused Mr Smith’s death. That homicide occurred on 18 December 2022, nearly two years ago, and Mr Cairney has since remained in custody, bail refused and on remand.

2. [2]

   Earlier this afternoon, at around 2.30 p.m., I discharged the jury and these are my reasons for making that order and for deciding that the interests of justice require a longer adjournment than available for a trial conducted before the end of the current law term, especially as the trial has an estimate of three weeks.

3. [3]

   The basis upon which the jury was discharged is that as part of the prosecution’s ongoing duty of disclosure new evidence has been served upon the accused’s legal advisers after the commencement of the trial. On Friday, 22 November 2024, that is to say the second day of the trial proper since empanelment, a supplementary expert statement from Detective Senior Sergeant of Police Gregory Moon was served. DSS Moon is a blood stains analyst. His primary report of 27 September 2024 had been served somewhat late, around the first week of October. For the preparation of the supplementary report, DSS Moon was provided with thirteen photographs taken by infra-red photography of the clothing that had been worn by the deceased when he was stabbed by the accused. He died at the scene soon thereafter. The infra-red photography showed aspects of the clothing which were not well depicted in the regular photographs that the expert had available to him for his primary report. Importantly, the infra-red photographs had not been disclosed to the defence prior to the service of the supplementary report on Friday.

4. [4]

   The second category of evidence that was served consists of the statements of two lay witnesses not previously available and a statement of the officer in charge, Detective Sergeant Brent Piggott, explaining, at least partially, the circumstances in which that evidence came to hand. A statement of a Mr Jay Constable, dated 23 November 2024, was served, I am informed by Ms Climo of counsel, at about 8.20 p.m. on Saturday night, 23 November 2024, and a statement of an associate of his, Mr Bradley Kearns, of 24 November 2024, was served shortly after 7 a.m. this morning, Monday, 25 November 2024.

Factual background

1. [5]

   In general terms, the circumstances giving rise to the homicide of Mr Smith, which have been set out in brief in previous rulings I have had occasion to make prior to the trial (see [2024 NSWSC 1451 and [2024] NSWSC 1497) is that the accused and the deceased had known each other for most of their lives. They had attended school together, although had not been in regular contact over the decades since. Not long before the events of 18 December 2022, contact was re-established. At that time, the deceased had been living out of his box trailer converted into a type of caravan, as I understand it, and he currently had nowhere to park it so it came about that through the good offices of the accused, he was permitted to park it in the yard of the accused’s partner, Sandra Ponfield, it appears indefinitely.

2. [6]

   From the point of view of the accused and his partner, the deceased soon wore out his welcome, for various reasons which I need not detail for this judgment. I have the impression, from the material that has been made available to me at various times to decide various evidential issues, that by 18 December 2022, their relationship was frayed and fraught. In any event, early on that day, the deceased had been arrested for drink-driving. He had a blood alcohol level reading of 0.125 which is high in the mid-range for PCA offences. He was required to leave his car where it was, conveyed to a police station where, no doubt, he was subject to more detailed breath analysis, charged and then allowed to leave in possession of a court attendance notice.

3. [7]

   The next that was known of the deceased’s movements on that day, on the evidence that had been served or disclosed to the accused up until the commencement of the trial, was when he showed up at the home of Ms Ponfield late in the afternoon while Ms Ponfield and the accused were out. He was in the company of a person who, until the service of the statement of Jay Constable, had been previously unknown to the accused and, so far as the Crown case statement served in accordance with the requirement of the Criminal Procedure Act 1986 (NSW) is concerned, unidentified by police as late as September of this year. Mr Constable, it seems, is that previously unknown and unidentified person. Mr Kearns is an associate of his who makes a statement which, in significant aspects, corroborates the version given by Mr Constable and sets out a number of details. It appeared to me that some of what Mr Kearns had to say may be of assistance to the accused but not in the judgment of Ms Climo of counsel who appears for the accused. In her submission all of this new material markedly changes the case which the accused has to meet.

4. [8]

   Returning from my digression to the narrative, the case, as it had been put in the Crown case statement and in the opening to which I will return is that when Mr Smith had been informed by [the protected witness] that she and the accused were not home and he could not obtain a phone number from her, he left the premises but later returned with the person who is, apparently, Mr Constable, after 5 p.m. in what may have been, the evidence is perhaps somewhat conflicting, an aggressive mood.

5. [9]

   It is not clear entirely, but it seems the reason for Mr Smith’s aggression may have been that when he had returned to the place where the police had made him leave his ute, it apparently had been removed by a person unknown, and Mr Smith formed the opinion, on what material is not entirely clear, that the accused and Ms Ponfield must have had something to do with it. When he came back to the premises, as I say, on one version of the case, he was in an aggressive mood because of the disappearance of his motor vehicle as well as the disappearance of his dog who had apparently been living with him in his caravan in Ms Ponfield’s yard.

6. [10]

   Without going into a great deal more detail, an altercation developed which became physical. On the basis of evidence of [the protected witness], apparently accepted by the Crown for the purpose of the Crown case statement, it was said that Mr Smith returned with a number of things including a juice bottle containing an admixture of petroleum. He is said to have made threats to burn down Ms Ponfield’s house, her car, and other property. The previously unidentified person, on the defence case at least, is also said to have made threats along the same lines as he was taking his leave by bicycle a short time after the physical altercation developed.

7. [11]

   After a period of the exchange of threats of violence, gestures of violence and perhaps actual physical violence, the deceased withdrew from Ms Ponfield’s home. From where he was absent for a period of time. During his absence, the accused apparently commenced to remove the deceased’s belongings, including his trailer, from Ms Ponfield’s property. He parked the trailer on the roadside nature strip and piled other items of personal property around or near it.

8. [12]

   While this was happening, the deceased returned in a very aggressive mood and armed with a metal pole. A physical confrontation redeveloped between the accused and the deceased, which culminated in the accused stabbing the deceased with a knife. Death was caused by the infliction of a single stab wound to the shoulder region of the deceased, which severed an artery resulting in massive blood loss.

9. [13]

   When he was arrested later that evening and during an ERISP which he chose to participate in after being cautioned, he volunteered that the deceased had attacked him with a knife at the climax of the confrontation, and it was in response to that attack that he used a knife he had armed himself with to inflict the single fatal stab wound. On his account, he did not expect the wound inflicted would have killed the deceased.

Issues

1. [14]

   It is common ground that the whole of the relationship between the accused and the deceased is relevant to the issues that the jury will have to decide, touching upon whether the accused is guilty or not guilty of the murder of the deceased as charged. It is common ground that the whole of the events at Ms Ponfield’s home in the late afternoon of 18 December 2022 are relevant to those issues and, in particular, to whether the Crown can “negative” the defence of self-defence which has been raised by the account given to police by the accused. I am of the view that even though the confrontation took place in two parts with an interval during which the deceased absented himself, there is no doubt that what occurred upon his return was a continuation of the earlier confrontation over possible theft of the deceased’s car and the desire of Ms Ponfield and the accused to terminate the licence they had granted him to reside at the premises by his eviction.

2. [15]

   When the case was opened by the Crown in quite some considerable detail on 21 and 22 November, Ms Ratcliffe, Crown Prosecutor, when summarising the evidence she expected [the protected witness] to give about the deceased’s first appearance at the front door looking for Ms Ponfield and the accused that afternoon, the learned prosecutor said (at T35.27-32):

3. [16]

   Having narrated the content of the other evidence she expected to call, the learned prosecutor said that after Mr Smith left, Ms Ponfield located the juice bottle sitting on a garbage bin. It contained a green liquid, which was subsequently tested and found to be a mixture of petrol and mineral oil similar to “two-stroke”. Ms Ponfield collected the bottle and brought it into the house.

4. [17]

   Ms Ratcliffe also relayed the content of a triple-0 call by Ms Ponfield to the emergency operator. It is not necessary that I refer to the language verbatim, but Ms Ponfield alleged that the deceased had tried to burn the house down and had threatened to try to burn “us down with petrol in a bottle”.

5. [18]

   It is important when considering the issues to also record that in her opening statement of the issues, Ms Climo made reference to the juice bottle containing the petrol, and she said this (at T58.21-24):

6. [19]

   Ms Climo also referred to the at that time unknown and unidentified Mr Constable, who was in the company of deceased. It was alleged from the material in the Crown brief that had been served that this person had also made threats against the accused and Ms Ponfield along these lines, “I’m going to destroy your boat. I’ll burn your boat. I’ll go you both.”

7. [20]

   The learned Crown referred to areas of blood staining at one end of the yard, in particular under the carport area. She said that the jury might hear evidence from experts in respect of that matter. However, I am aware from my knowledge of the case that there is a significant issue about exactly where the stabbing occurred in the backyard area. On the account given by accused to police, it happened under the carport. There is an issue, I am informed, based on the expected expert evidence of Dr I’Ons, forensic pathologist, by reference to the rate of emission of blood from a severed artery, if accepted by the jury, whether the blood deposited in the carport is necessarily reliable evidence of where the fatal injury was inflicted. That is a matter which, inter alia, may call into question the accuracy of the account given by the accused to police.

Provenance of the new evidence

1. [21]

   From evidence tendered on the voir dire, and in particular Exhibit S, it seems clear that when interviewing another lay witness, a Ms Rhiannon Shailes, whose statement had been previously served, on 19 November 2024, prosecutors from the Office of the DPP learnt Mr Constable’s name and received other information which doubtless put them on further inquiry because Ms Shailes stated that she believed that he had been in the company of the deceased on 18 December 2022. I infer further inquiries were made based on that information. It seems at least probable that Ms Shailes may have been asked to make some further inquiries of her “friend” because at 9.15 a.m. on 23 November 2024, she telephoned DS Piggott to confirm that Jay Constable was a man who had been with the deceased prior to his death and that she had received that information from Mr Constable a few weeks previously. The officer in charge immediately arranged for detectives to attend the address of Mr Constable, which may have been provided by Ms Shailes or perhaps was available from other sources, and the officer also contacted Ms Shailes to say detectives wished to speak to her and obtain a statement from Mr Constable. The statement was duly obtained.

Lay evidence

1. [22]

   In that statement, Mr Constable gives a very detailed account of the time he spent with the deceased. Mr Constable had not previously met him, but he assisted the deceased to try and locate his car, which at that stage the deceased had merely misplaced because he could not remember where it had been left after his arrest. It was only later that he came to the conclusion someone had moved or stolen his car, and Mr Constable agreed to go with him to Ms Ponfield’s place to make inquiries. They were both on bicycles at that time.

2. [23]

   Mr Constable gave an account of the confrontation in the yard of Ms Ponfield’s home, which is an account which casts the accused and his partner as the aggressors. During the course of it, Mr Constable decided that he would depart the scene rather than get drawn into the confrontation.

3. [24]

   Mr Constable became aware of police investigations later that day. He attended the crime scene but did not volunteer himself to officers as a witness. He had a conversation with an associate of his about what the associate believed had happened. That was a person in whose company Mr Constable had been at the time he met the deceased on 18 November 2022. He recounts a conversation he had with Ms Ponfield on a recent occasion in Sellers Crescent when Ms Ponfield mentioned the petrol bottle. Mr Constable denied that he had seen any petrol. In fact, he positively asserted, there was no petrol. When challenged about that by Ms Ponfield, he repeated, there was no petrol and he did not see any.

4. [25]

   Police also interviewed Mr Bradley Kearns, who was the person I have referred to as Mr Conmstable’s associate. He confirms details of the first meeting between Mr Smith and Mr Constable. He also says that during what I infer to be the interval between the two parts of the confrontation of 18 December, the deceased returned to his home. By that stage he was making threats toward the accused and Ms Ponfield. He used the expression “I’m going to do a brick after this”, which apparently Mr Kearns understood as a long stretch in gaol of ten years or so. If accurate, one may infer this was a threat to do real violence to the accused and Ms Ponfield. In fact, Mr Kearns said he offered to arm the accused for that purpose from items he had in his front yard that could be adapted for offensive purposes. But the deceased left without taking him up on that offer.

Expert evidence

1. [26]

   So far as the evidence of DSS Moon is concerned, having inspected the infra-red photographs, he modified the opinion he previously expressed which was from his inspection of all of the evidence then available to him, it was highly likely that the fatal injury was sustained within the area of the carport. In his supplementary statement he said from his inspection of the clothing as depicted in the previously undisclosed infra-red photography in the light of the material he had considered previously, he had altered his previous opinion to say simply that it was possible that the injury was sustained within the area of the carport, and that he could not rule out other areas nearby. I infer that that was because the possibility of the wound being covered immediately by his clothing or otherwise in the immediate aftermath of the stabbing could not be discounted. Clearly, the revised opinion is very substantially weaker than that previously expressed, and therefore less consistent with the account given by the accused to police.

2. [27]

   I should say about DSS Moon’s evidence, that although it had been obtained rather late in the piece, in September 2024, the Crown had made it quite clear to me subsequently that it was not intended to call that expert in the Crown case. I infer that the supplementary report was served because of the alteration in DSS Moon’s opinion. When an expert receives other material which causes him or her to alter the opinion previously expressed, they are under a duty to the Court to disclose that change of opinion by way of a supplementary report lest the previous opinion mislead a court if tendered in evidence in due course. This is part of the experts’ code of conduct.

3. [28]

   Notwithstanding the Crown’s position in relation to DSS Moon’s evidence, Ms Climo had made quite clear that she required DSS Moon for cross-examination, and this is not surprising given the opinion initially expressed. The fact that the Crown did not require the expert to be called for their own purposes is, with respect, neither here nor there if evidence obtained by the Crown is required to be called by the accused.

4. [29]

   I should say also that I am aware, from what I have been told previously that the defence has retained the services of their own relevantly qualified expert. I remind myself there is no onus upon the accused to call any evidence of any kind, and it is not unusual that an expert will be retained even if only for the purpose of better qualifying counsel to cross-examination a Crown witness. However, given that the infra-red photographs have not been previously disclosed, the defence expert has not seen them, and nor has the defence expert had the opportunity to consider the revised opinion of DSS Moon in the light of them.

Consideration

1. [30]

   I have gone into this material in quite some detail because it seemed to me to be necessary to fully set out the circumstances in which I was persuaded I had no real option but to discharge this jury and to explain why it is that I think the matter cannot proceed in the current sitting and must be adjourned for a longer period of time. I must say that although I had hoped to take some evidence today and to deal with this matter at some more convenient time, given that I had two witnesses who were partway through their evidence, Ms Climo insisted that the proper approach was to consider her application, which was in the first place to exclude this evidence before any further evidence was heard. Although I was at first resistant to this argument, I acknowledge that she was correct and I was wrong in my approach to the issue, which is confirmed by the order I have made discharging the jury.

2. [31]

   After hearing from Ms Climo, at least in a preliminary fashion, and hearing from the Crown, it became apparent, I think, in the course of my discussion with the learned Crown Prosecutor that discharging the jury was inevitable. That was because this evidence clearly changed the nature of the case that the Crown wished to present, even though from the Crown’s point of view the juice bottle with petrol was perhaps a detail which could be accommodated one way or another given that no attempt at arson was carried out at any time by the deceased. But, it had been front and centre in the accused’s case as opened, as an important part of the matrix of fact from which the issue of self-defence arose in the circumstances. And as I have said, Ms Climo certainly drew attention to it as being a factor that was prominent in the thinking of the accused from the commencement of the confrontation, and although the stabbing may have been an immediate response to the perceived imminent threat to his own safety, from the account he had given to police it was also clear that what he perceived to be the earlier threats made by the deceased to burn the house down were certainly on his mind at the same time.

3. [32]

   There is also the practical issue in relation to the way the case had been put by both counsel to the jury in opening. It seemed to me that I could not ensure the fairness of the trial in circumstances where a short way into it the Crown had to modify somewhat its approach to the facts of the case, which it would ask the jury to infer from the evidence it proposed to lead, on the one hand, and the accused would be in a very disadvantageous position, given that the threat of arson had been at the forefront of the opening based upon the evidence that had already been served in relation to the case including the consideration there had been no previous contradiction of the evidence that the deceased came “armed” with the petrol.

4. [33]

   Having raised these matters with the Crown Prosecutor, she asked for a short adjournment to obtain instructions, which I was happy to grant. In the event it became the application of the Crown that the jury be discharged and a fresh jury empanelled. As I say, that seemed to me to be the only realistic application that could have been made.

5. [34]

   The question then arose when the trial should recommence, given that there was still just about sufficient time to complete the trial within estimate during the current law term; and there were jury panels available in Wollongong tomorrow and Wednesday. It was in that context that I heard from Ms Climo about, first, the length of any necessary adjournment from the defence’s point of view, and, secondly, the application to exclude the new evidence either under s 146 Criminal Procedure Act 1986, given the lateness of the service of it, or under s 137 Evidence Act 1995 (NSW).

6. [35]

   In that regard I was assisted by the authorities that Ms Climo referred to, being Haoui v R [2008] NSWCCA 209 (at [101]ff), R v Bentley; R v Davies; R v Thomas; R v Tilley [2019] NSWSC 204, and R v Sharpe (No 2) [2021] NSWSC 32 (at [35]). The first case concerned the failure of the trial judge to grant an adjournment of the trial after late service of an expert’s report, and the other two cases concern the exclusion of blood spatter evidence that had been served late in the days before the commencement of the trial.

7. [36]

   I should say this, that had it simply been the blood spatter evidence, I may have taken a greater level of persuasion in relation to a longer adjournment than in relation to the lay evidence. That is because although importantly the defence required DSS Moon to be called because of his favourable opinion expressed in his first report, the consideration that a defence expert was available and that the material had been disclosed, albeit late, initially made me think that perhaps the matter could be dealt with, as so many things are dealt with in trials, a little on the run. However, I do accept that even in respect of the expert evidence that would have been unfair to the accused. The option of excluding the evidence was not really available because it was the accused who wished to have DSS Moon’s evidence led, and it would not have been in the interests of justice to permit his evidence to be given on, with respect, what would have been a false basis. That is to say, for his initial opinion to be given as though that remained his opinion, and that only his supplementary report be excluded.

8. [37]

   The misleading nature of that approach could not be used to justify measures to alleviate potential unfairness even to an accused. It seemed to me unreasonable, having regard to the considerations referred to by Beazley JA (as her excellency then was) in Haoui that a longer time for mature reflection was called for.

9. [38]

   I am conscious of the fact that after certain pre-trial directions, and at my request, Ms Climo’s instructing solicitor was able to obtain a report from the blood spatter expert at short notice and more quickly than the expert said was required. It seemed to me unfair not only to the accused but to the expert to require the urgent production of a supplementary opinion in circumstances where the Crown obviously had as much time as they thought necessary to produce that evidence. So despite my reservations and given the potential importance of that evidence as supporting the accused’s account to police, it would have been unreasonable to require the accused’s legal advisors to obtain yet another urgent report.

10. [39]

    I turn then to the lay evidence. It seemed to me that this evidence changes the lay of the land in significant respects. I accept that the threat of arson is not central, however, for the reasons given by Ms Climo in her opening, nor is it peripheral. It is a circumstance which is capable of influencing the jury in terms of their decision as to whether they accept his account, even as one that could reasonably be true, that Mr Cairney perceived it was necessary to stab the deceased in order to defend himself and the other members of the household.

11. [40]

    Whatever the full history of the investigation in relation to attempts to identify the previously unknown companion of the deceased, as at 19 November 2024, professionals with some responsibility for the prosecution within the Office of the DPP had obtained information which strongly suggested there was a good prospect of the previously unknown person being identified. I appreciate I am looking at it with the benefit of hindsight, having regard to the fact that statements were obtained over the weekend. Even so, receiving information from a witness already subpoenaed to give evidence that a friend of hers was a person who had spent time with the deceased during the fatal day must necessarily have given rise to a strong suspicion that the person was the other person on a bicycle who turned up at Sellers Crescent twice on the afternoon of 18 November 2022. With great respect, I would have thought that information should have been disclosed immediately, orally, to the legal representatives of the accused on 19 November 2024 even if with the rider, “We do not know who this person is and we do not know whether he is the other person on the bike but we are looking into it”.

12. [41]

    Had that information been relayed even on that general qualified way, I have no doubt that it would have been raised with me and directions would have been sought or an application made to adjourn the empanelment of the jury until those investigations were completed. Doubtless, had such an application been made, I would have acceded to it given the imminence of the commencement of the trial, the potential significance of the evidence of a lay witness who had spent time with the deceased during the day and the possibility that that person was the missing unidentified and unknown person.

Ruling

1. [42]

   It is very regrettable, may I say, that that simple expedient was not followed. It seems to me, although I have not asked questions about this and I am not being judgmental about it, that simply passing on the information orally in the context of a criminal trial would have been an appropriate way given the imminence of the commencement of the trial of discharging the Crown’s ongoing duty of disclosure.

2. [43]

   In any event, I am satisfied that although Mr Constable and Mr Kearns are lay witnesses and that counsel is now well across the whole of the voluminous brief in this matter, the accused should not be forced into a situation where he has to deal with the ramifications of the potential evidence of Mr Constable on the run, and his counsel should not be put in a position where she has to deal with it while she necessarily has to attend to any number of other important matters while the trial is running if I were to re-empanel tomorrow or on Wednesday.

3. [44]

   Given the time of year, I am satisfied that there is no other option but to adjourn the trial to the first available dates in the New Year. Regrettably, given the pressure of business on the criminal courts and upon the courthouse here in the very busy city of Wollongong, no dates may be available early in the new year. However, for those reasons, I pronounced the order discharging the jury and I propose to adjourn the matter until the New Year. What I propose to do is list the matter tomorrow morning at 10 a.m. at which time after hearing further from counsel, I will pronounce orders for the future management of the trial.