R v Cairney (No 4)

1. [1]

   I am continuing to make evidential rulings for the trial of Mr Cairney for the murder of Mr Smith. I will not go over the basic facts again, except to say that, as I have sought to make clear in previous interlocutory judgments or rulings (see [2024] NSWSC 1451, [2024] NSWSC 1497 and [2024] NSWSC 1513), the confrontation between Mr Cairney and Mr Smith on 18 December 2022 is in two parts, with an interval during which Mr Smith left Ms Ponfield’s premises for a period. The scene of the confrontation changed from the Sellers Crescent frontage of the home to the Turner Esplanade frontage. At this time, only Mr Cairney and Mr Smith were present throughout, although other evidence suggests that their interaction was witnessed by other persons and it may be, although she is not shown in the material currently in dispute, Ms Ponfield was in the vicinity at different times. If his account is accepted by the jury, Mr Robert DeGraff may well be an eyewitness to the fatal stabbing.

2. [2]

   The portion of the evidence which I am now considering is referred to as the dash-cam video or footage obtained of the interaction of Mr Cairney and Mr Smith during the second part of the confrontation. This was obtained from a LandCruiser parked on the Northern side of Turner Esplanade just to the West of Ms Ponfield’s driveway. To put this matter in context, the dash-cam was motion-sensitive. In any event, there are two parts which were tendered on the voir dire as Exhibits M and N.

3. [3]

   The substantial but not only issue in the trial is whether the Crown can exclude self-defence beyond reasonable which will require the jury, as a starting point, to reject the account given by Mr Cairney to investigating police as one that could not reasonably be possibly true. There are other factors. The account given by Mr Cairney to police which will be before the jury is that he stabbed Mr Smith because he believed that was necessary to defend himself from Mr Smith. And as I have put it in other judgments, Mr Cairney’s account to police was that immediately before he stabbed Mr Smith, he came at him with a knife. It is the Crown case that at that relevant time, Mr Smith was unarmed and if I can put it this way, certainly not armed with a knife. The jury will be asked to draw that inference from what might be called a complex body of evidence but central in that body of evidence will be, as I apprehend it, the dash-cam footage.

Exhibit M

1. [4]

   In Exhibit M, Mr Smith is depicted approaching Mr Cairney with what could be described as an aggressive intent, having his right hand raised above shoulder height as though in a position to strike Mr Cairney or throw something at him. There was some debate about this earlier before me. The original Crown case statement said that Mr Smith had something in his hand which could not be specified. The amended Crown case statement asserts that the item that Mr Smith was holding is, in fact, an electrical cable of some description.

2. [5]

   From having watched it twice, with the benefit of pauses, I am satisfied that the footage does depict Mr Smith holding something and I am satisfied from that repetition of viewing and pausing that what he is holding is consistent with an electrical cord, perhaps with a power point board at the end of it as is commonly used in domestic applications. I am also informed that investigating police found two electrical cables in Mr Smith’s trailer. A careful viewing of Exhibit M demonstrates the item Mr Smith is holding is swinging in his hand and it is also apparent that after that episode of confrontation as he returns to his trailer, he transfers the item from his right to his left hand.

3. [6]

   The area of disagreement between counsel is that the Crown wished to show Exhibit M to the jury enhanced by red squares superimposed upon the copy of the footage, to draw attention to each hand in turn in sequence for the purpose of drawing the jury’s attention or directing their attention to his hand for the purpose of making their own minds up about what is shown in the footage. I have already ruled that I will not permit any witness, say, an investigating police officer, to offer any opinion as to what the footage shows.

4. [7]

   I have to say that when I viewed it the first time, I could not tell what Mr Smith was holding in his right hand, although the position of his hand suggested he was holding something. It was only after a second viewing that I was able to discern what I have described. Ms Climo of counsel submits that I should not permit the “boxing” or “highlighting” as it in substance leads the jury to a conclusion rather than leaving it to them to make their own mind up about what the evidence shows or does not show.

5. [8]

   In my judgment, the addition of the boxing is permissible. I do not think it leads to a conclusion as to what, if any, item is in the hand of Mr Smith; first the right hand, then the left hand. Rather, it simply draws the jury’s attention to his hand, to enable them to focus on that part of his anatomy so that they may make up their own mind about what, if anything, he is holding in the context of the whole evidence and, ultimately, of counsel’s submissions about it.

6. [9]

   It is in the nature of video evidence that during the course of a criminal trial, it is often shown more than once for different legitimate forensic purposes. And there is, I think, a well-known “practice effect” that the viewer obtains from seeing the footage more than once. Things that were not noticed initially become familiar subsequently with repeated viewing. I am of the view that this is simply part and parcel of evidence of this nature. It seems to me that the boxing, which does not really highlight the item but rather draws the viewer’s attention to Mr Smith’s hand does no more than one might do when asking a witness a non-leading question in chief by simply drawing the witness’s attention to a topic or subject matter about which one wishes to ask questions.

7. [10]

   It is always permissible to direct or redirect a witness to the topic at hand, provided that in contentious matters no attempt is made to suggest an answer to the witness. In my opinion, the boxing does no more than achieve a similar forensic purpose in a similar way and I will allow Exhibit M to be shown as augmented by the boxing which I have described.

Exhibit N

1. [11]

   I turn then to exhibit N. Exhibit N concerns what I will refer to as the circumstances surrounding the final confrontation of Mr Cairney and Mr Smith. No footage covered the rear yard and carport of Ms Ponfield’s home. As far as eye-witnesses are concerned, as I understand it, only a Mr Robert DeGraff, a resident nearby who had a view into the rear yard and car port of Ms Ponfield’s home from the upstairs lounge area of his home claims to have seen the events immediately before, during, and immediately after the stabbing of Mr Smith by Mr Cairney. However, Mr DeGraff says that he saw Mr Cairney “hit” Mr Smith with what appeared to be a steel bar about 300mm in length. The evidence otherwise relied upon by the Crown as to what happened is circumstantial except to the extent to which Mr Cairney has made admissions in his account given to police which, of course, will be played to the jury.

2. [12]

   The footage shows Mr Cairney during this phase is holding a large kitchen knife in his right hand. Once again, on my first viewing of the start of the footage, it was difficult for me to see that, other than there was a reflection from what on the subsequent viewing was, obviously, the blade of the knife. One’s direction is drawn to that with the benefit of similar “boxing” to that I have already described. Notwithstanding Mr Cairney holding the knife, there is an aggressive movement by Mr Smith towards him and what the jury might think is a verbal remonstration by Mr Smith directed at Mr Cairney.

3. [13]

   Mr Cairney, the jury might think, it is a matter for them, retreats into the back yard and Mr Smith follows. Before Mr Smith enters the backyard both of his hands are visible and it can be seen that they are empty. At one point in Exhibit N, just before he enters the yard, “boxing” has been added to draw one’s attention to his hands so that one can draw one’s own conclusion about the matter.

4. [14]

   When Mr Smith exits the yard in his fatally injured condition, his hands are bloody and one can see blood on his neck and on his right hand with which he appears to hold his neck. His left hand is also bloody. From the footage, one can see that his hands are then empty. Throughout the whole of this exchange, he has a backpack over his shoulder, I think, on the right side.

5. [15]

   Ms Climo points out that there is no issue that Mr Cairney was holding a knife at the time he withdrew into the yard. Although he was holding it during his confrontation with Mr Smith visible on the dash-cam footage, he does not seem to brandish it in any sort of threatening way. She submits that there is no issue that when he entered the yard, Mr Smith’s hands were empty and, likewise, when he re-emerges onto the nature strip after that final and, unfortunately, fatal confrontation unseen by any camera covering the yard. Because there is no issue about those matters, Ms Climo submits that the augmentation with the “boxing” to draw the viewer’s attention to the right hand of Mr Cairney and each hand of Mr Smith, is simply unnecessary and, therefore, proves nothing and is not relevant under s 55 Evidence Act 1995 (NSW), as I understood her submission to imply. She also repeats, with respect, her earlier submission that the “boxing” is a form of leading the jury to a contentious conclusion.

6. [16]

   Once again, having considered the evidence carefully, I am of the view that the enhancement by superimposition of the red box does no more than draw the viewer’s attention to what is particularly relevant in the footage that is being shown. I am not of the view that the “boxing” impermissibly leads the jury in terms of suggesting to them one of more than one contentious inference about whether either Mr Cairney or Mr Smith is holding something and what it is. I am of the view that it is permissible for that superimposition to go to the jury to assist them to evaluate the evidence.

7. [17]

   Obviously, different forms of evidence require different degrees of care; for instance, it may generally be impermissible to give the jury a document that contains highlighting. On other occasions, it would not be impermissible to do so if there was a particular relevance about one part of a lengthy document which required the jury’s attention in the particular circumstances of the given case. There would be nothing to stop counsel, be it Crown Prosecutor or defence counsel, to show footage to the jury during the course of their address, pause it and using a pointer invite the jury’s attention to a particular aspect of the footage and ask them to consider their own decision about what is depicted in that part of the image which is drawn to their specific attention. In my judgment, the boxing on this video does no more than what is permissible to assist the jury to understand the relevance of the footage they are being shown, and I will permit Exhibit N to be shown to the jury.