R v Cairney (No 5)

1. [1]

   I have been dealing with evidential issues outstanding between the parties in this trial. I have already given a number of judgments, and the facts, as applicable to the circumstances of each of those judgments, have been dealt with at least so far as the respective cases of the parties has been made clear to me from the material I have received (see [2024] NSWSC 1451, [2024] NSWSC 1497, [2024] NSWSC 1513 and [2024] NSWSC 1516).

2. [2]

   This current ruling concerns an account given by the accused in his ERISP commencing at about question 318 and concluding at 383. It is unnecessary for me to set out large passages of the questions and answers making up that portion of the record of interview. It is sufficient to say that the questioning concerns, what I will call for the purpose of this judgment, the baseball bat incident. As I have said in previous judgments, the confrontation between Mr Cairney, the accused, and Mr Smith, the deceased, occurred over the late afternoon of 18 December 2020. It occurred in two parts. The first part occurring at the Sellers Crescent end at the home of Ms Ponfield, and the second and climactic part occurring at the Turner Esplanade side of the residence.

3. [3]

   The baseball bat incident is part and parcel of the first part of the confrontation. It is important for the purposes of this present judgment to point out that it is not in issue in the trial that Mr Cairney, by his act of stabbing Mr Smith, caused his death. The substantial issue is whether he did so while acting in self-defence, an issue which the Crown must “negative” beyond reasonable doubt. To the extent to which I have not mentioned it in other judgments, it also appeared to me that, from the opening of Ms Climo before the jury was discharged, there may be an issue about intent. However that may be, self-defence looms as the largest issue for the jury’s consideration.

The issue

1. [4]

   This matter was ventilated before me on 20 November 2024 when I was dealing with a series of objections and other issues in relation to evidence. At that time, I had formed the provisional view that given the nature of the issues, the difficulty for the Crown in the admission of the ERISP account of the baseball bat incident was the credibility rule established by s 101A Evidence Act 1995 (NSW). I allowed the learned Crown Prosecutor a short time over the luncheon adjournment to address me if she so chose about which exception to the credibility rule was engaged.

2. [5]

   When court resumed, I was informed that the admission of that portion of the ERISP was not pressed. However, later, I received a notice by email in chambers to which the defence were copied in that the prosecution wished to revisit that issue and by reference to the decision of Court of Criminal Appeal in Azzi v R [2013] NSWCCA 249. There was no objection by the defence to the issue of the admissibility of the evidence being revisited and I was referred to the defence position based upon the judgment of Hamill J in R v Al Batat & Ors (No 19) [2020] NSWSC 1297.

3. [6]

   I heard further argument about the matter on the afternoon of Friday 22 November 2024 after the jury had been sent home early because of technological difficulties we were experiencing showing video footage in the courtroom. Consistently with the reliance upon Azzi, the Crown relied upon the exception to the credibility rule referred to in s 108A as qualified by s 108B(3)(c) Evidence Act, that is to say that passages of the interview were admissible as prior inconsistent statements.

Argument

1. [7]

   I should say that prior to the hearing on 20 November 2024 I had received written submissions from Ms Climo of counsel, and it is clear that both counsel were proceeding on the basis that passages of the ERISP during which the accused initially denied even handling the baseball bat in the first part of the confrontation, were shown to be lies and the relevant question then was, “What use could be made of those lies?”. Ms Climo referred to the review of the authorities by Adamson JA (with whom Ward P and Payne JA agreed) in Dawson v R [2024] NSWCCA 98. Ms Climo also raised the exclusionary rule established by s 137 Evidence Act that the probative value of the lies were outweighed by the significant unfair prejudice to the accused if the evidence were admitted. And with respect, she maintained that approach during the oral addresses.

2. [8]

   As I understood Ms Climo’s argument as it was expressed orally on Friday, she accepted that the events of the first part of the confrontation may be relevant because what occurred on the Sellers Crescent side of the residence may be relevant to what occurred later on the Turner Esplanade side of the residence. As I understood that however, her argument was that s 55 Evidence Act was not engaged because there was no issue that the Crown could prove that the baseball bat was swung by the accused during that first part of the confrontation. This was amply proved by other evidence and indeed, ultimately during the course of the ERISP questioning the subject of this ruling, he did admit handling the baseball bat, despite his initial denial, but denied that when he swung it at Mr Smith he actually made any contact.

Decision on admissibility

1. [9]

   I acknowledge that I set the credibility rule question running. However, during the time I have taken for consideration, it now seem to me that the passage I am dealing with is not strictly speaking credibility evidence. If one considers the definition of credibility evidence in s 101A Evidence Act, credibility evidence is defined as evidence relevant to the credibility of a witness or person that:

2. [10]

   To put things in more formal language, I am of the view that the baseball bat incident evidence is relevant to the proceedings because it is evidence that if it were accepted, could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue being, on the one hand, Mr Cairney’s intent at the time he stabbed Mr Smith, and on the other, the question of whether Mr Smith was aggressive towards Mr Cairney, and, when considered in conjunction with other evidence, whether it was more likely in those circumstances, including the various events that make up the different parts of the confrontation, that he would attack or threaten Mr Cairney, including with a knife. For that reason, I am of the view that the evidence is not excluded by the credibility rule.

Contingent ruling

1. [11]

   Were I wrong in that expression of opinion, I would not have been of the view that Mr Cairney’s initial denial of even handling the baseball bat on the afternoon of 18 December 2022 was a prior inconsistent statement within the meaning of s 108B(3)(c). Although fine lines may need to be drawn as to what is, or is not, a prior inconsistent statement, it is essentially a question of fact not law. I am of the view that a prior inconsistent statement is something that a witness said on some prior separate occasion from the occasion on which he or she gave evidence as a witness.

2. [12]

   Accepting that Div 3 of Pt 3.7 of the Evidence Act, where s 108A and 108B are to be found, is concerned with the credibility of persons, not witnesses, who made a previous representation and covers cases such as where an accused person does not give evidence but an out of court account is admitted, it remains the case that a prior statement inconsistent with a statement made in a record of interview needs to have been made on some other occasion before and separate from the occasion of the ERISP. I would not have admitted the matter under s 108B(3).

Additional reason for admissibility

1. [13]

   I am of the view, in accordance with the principle established by the High Court of Australia in R v Soma (2003) 212 CLR 299; [2003] HCA 13 (at [31]), the account given by an accused person is prima facie admissible at least as a matter of practice. As Fullerton J expressed the principle established by that case in Azzi (at [36]) the plurality and majority of Gleeson CJ, Gummow, Kirby and Hayne JJ said:

The application of the exclusionary rule

1. [14]

   In any event, I need not tarry longer over that principle, given the view that I have expressed. Obviously, evidence which is of itself relevant and therefore prima facie admissible may also be employed for a credibility purpose because it is not excluded by s 101A Evidence Act. However, the admission of that evidence is of course subject to the exclusionary rules established by Pt 3.11 of the Evidence Act, including in particular, so far as this case is concerned, s 137 of the Evidence Act. Section 137 is in the following terms:

2. [15]

   Section 137 does not repose a discretion in the trial judge. It confers a power that must be exercised favourably to the accused where the condition of its probative value being outweighed by the danger of unfair prejudice to the defendant is established.

3. [16]

   Ms Climo put the matter on a number of different bases. Included in her argument was the consideration that given that the Crown could prove by other admissible evidence that the accused did handle, and did swing, the baseball bat, including at the deceased, the probative value of either his denial or his ultimate admission of having handled it, even if he denied striking Mr Smith with it, meant that the probative value of what was said in the interview was not significant.

4. [17]

   The Crown made clear during the course of argument that they do not rely upon any lie that the jury is satisfied the accused told when initially asked about the incident as consciousness of guilt evidence. However, Ms Climo relied upon the following matters: that the timing of this questioning about the baseball bat was unfair because it came after the accused had provided the exculpatory account raising self-defence; and to the extent the jury is satisfied that the accused lied when initially asked about handling the baseball bat, the lie came after he voluntarily disclosed a defence which included an account of having used the knife and other weapons against the deceased including fatally stabbing him.

5. [18]

   Ms Climo argued that if the jury are satisfied that what Mr Cairney told was a lie in the legal sense of a deliberate falsehood knowingly told, that this would lead the jury into an impermissible pathway of reasoning which could nullify exculpatory account because the jury may reason, “Well, if you lie about one thing, you must have lied about everything” including his exculpation.

6. [19]

   It was also put that there was a forensic unfairness for the accused because it was difficult to know just what proposition the accused was responding to when he was shown video recordings upon a witness’s mobile phone, the content of which were not articulated in the question so that the jury could not fully appreciate what was being shown and what it was that the accused might be responding to, said to prove the earlier lie. She argued that directions could not guard against that risk of unfair prejudice.

7. [20]

   I have given serious consideration to the arguments of both counsel and it has not been an easy issue to resolve. I should say that Ms Climo, as I have said relies on the reasoning of Hamill J in Al Batat (No 19) ([17] ff) where his Honour excluded evidence of a lie a co-accused told in his record of interview about his knowledge of drugs discovered by investigating police during a search of his motor vehicle, even when the obvious was shown to him by way of body worn video footage of that search.

8. [21]

   However, the real question turned on the supply by the co-accused, Mr Bayliss, of prohibited firearms. His Honour expressed his conclusion as follows (at [23]):

9. [22]

   His Honour went on to acknowledge that it would be easy to fashion directions as to the limited use to which the impugned evidence could be put. To state the obvious, and with great respect, his Honour’s analysis is a factual conclusion relevant to the circumstances of that case and not a statement of principle. Juries are routinely directed in every criminal trial that they are entitled in assessing lay evidence to accept parts and reject other parts of a witness’s evidence, and that same direction applies even to an out of court account given by an accused which is introduced into evidence. It is stressed that they do not have to either accept or everything a witness says. Their evaluation of a witness’s evidence or a person’s account is neither binary nor bifurcated. It is a question of the assessment of the whole of the account, maturely, by reference of their experience of life and common sense. As I say, that is a standard direction.

10. [23]

    Credibility reasoning runs along the lines, if a witness lied about A, they may have lied about B. That type of reasoning is not, of itself, inherently unfair. Indeed, it is reasoning that tribunals of fact whether judge or jury engage in, I would say, every day of the week and it is a process which is inherent in the weighing and assessing of evidence as to its reliability and the weight that should be afforded it. When the evidence or an out of court account of an accused person is before a jury, no special rules apply to its assessment by the jury as to its reliability or weight, although special directions are given in accordance with Liberato [v The Queen (1985) 159 CLR 507; [1985] HCA 66] in most such cases. But there is nothing, I repeat, inherently unfair about credibility reasoning as the result in Azzi demonstrates.

11. [24]

    In that case, the accused was shown to have lied about the nature of a substance later proved to be a prohibited drug during a search where another package of prohibited drugs was found. This second package was the subject of the indictable offence and when challenged about it during the search, he denied any knowledge whatsoever of that indictable quantity of that different prohibited drug notwithstanding that the circumstance of its location of by investigating police within a place under his control. The Court of Criminal Appeal held that the lie about the first prohibited drug was entitled to be taken into account by the jury and may, in their judgment, be entitled to significant weight given the lie was told on the same occasion and in the same context during the same search that located the second drug.

12. [25]

    The fact that the interrogation in relation to the baseball bat incident may give rise to a question for the jury’s consideration about the credibility of the account given by the accused to police including his exculpatory account does not, of itself, render the admission of that account, in my judgment, unfairly prejudicial in the relevant sense. I therefore rule that the baseball bat incident passage of the ERISP is admissible.