Dawson v R
[2021] NSWCCA 117
•11 June 2021
|
New South Wales |
Case Name: | Dawson v R |
Medium Neutral Citation: | [2021] NSWCCA 117 |
Hearing Date(s): | 14-15 April 2021 |
Decision Date: | 11 June 2021 |
Before: | Bathurst CJ at [1]; Adamson J at [33]; Bellew J at [222] |
Decision: | (1) Grant leave to appeal. |
Catchwords: | CRIMINAL PROCEDURE — Stay of proceedings — Application for permanent stay refused by primary judge |
Legislation Cited: | Coroners Act 1980 (NSW), s 19 |
Cases Cited: | Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 |
Texts Cited: | Criminal Trial Courts Bench Book |
Category: | Principal judgment |
Parties: | Christopher Michael Dawson (Applicant) |
Representation: | Counsel: |
File Number(s): | 2018/372527 |
Publication Restriction: | Non-publication of any information or material that may lead to the identification of persons who were children at the time of the offence (Children (Criminal Proceedings) Act 1987 (NSW), s 15A) |
Decision under appeal: | |
Court or Tribunal: | Supreme Court |
Jurisdiction: | Criminal |
Citation: | R v Dawson [2020] NSWSC 1221 |
Date of Decision: | 11 September 2020 |
Before: | Fullerton J |
File Number(s): | 2018/372527 |
Judgment
BATHURST CJ: I agree with the orders proposed by Adamson J and, subject to what I have written below, with her Honour’s reasons.
The present case is an unusual one in that it involves both pre-trial publicity of an egregious nature and an inordinate delay in the bringing of the prosecution. The applicant’s complaint is that these matters in combination would render any trial necessarily unfair so that any conviction would bring the administration of justice into disrepute.
In the context of pre-trial publicity, the High Court in Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 (“Dupas”) at [16] referred to the two fundamental policy considerations affecting abuse of process in criminal proceedings identified by the plurality in Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 520; namely, first, “that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike.” Secondly, that “unless the court protects its ability so as to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice” (Dupas at [16]).
The High Court in Dupas went on to state that the following statements made by Mason CJ and Toohey J in The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 at [605]-[606] can be regarded as authoritative:
“[A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre‑trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.”
Similar considerations govern the question of whether a permanent stay should be granted in the case of inordinate delay. Dealing with that issue, Mason CJ in Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 (“Jago”) at 34 stated that the delay must render the trial necessarily unfair so that any conviction would bring the administration of justice into disrepute.
Considering the question, it must be remembered that a fair trial is not necessarily a perfect trial. As was pointed out by the plurality in R v Edwards [2009] HCA 20; (2009) 255 ALR 399 at [31], it happens on occasion that relevant material is not available, documents, recordings and other things may be lost or destroyed, and witnesses may die. The plurality pointed out that “[t]he fact that the tribunal of fact is called upon to determine issues of fact upon less than all the material which could relevantly bear upon the matter does not make the trial unfair” (R v Edwards at [31]).
Further, as was pointed out in Dupas at [37], a further consideration is the need to take into account the substantial public interest of the community in bringing those charged with serious criminal offences (of which murder is the most serious) to trial, and that because of this public interest, fairness to the accused is not the only consideration.
The importance of the court’s responsibility to the community and the fact that a court is required, if possible, to avoid unfairness by less draconian means other than a permanent stay was recently emphasised by the High Court in Victoria International Container Terminal Ltd v Lunt [2021] HCA 11; (2021) 95 ALJR 363 (“Lunt”). The plurality made the following remarks (citations omitted):
“[20] In cases where proceedings are brought for an improper purpose, ‘no remedy is likely to be appropriate other than a stay of the proceedings’ because, in such cases, the abuse of the court's processes cannot be remedied in any other way. But where a court is able, by means less draconian than summary termination, to cure any apprehended prejudice to a fair trial so as to ensure that justice is done, the court's responsibility to the parties, and to the community, requires that those other means be deployed so that the matter before the court is heard and determined in accordance with the justice of the case. So, for example, where a party has engaged in sharp practice apt to delay the fair trial of a matter, an order for costs may be sufficient to cure the prejudice to the other party. Where a party's misconduct amounts to a contempt of court, such as the destruction of material evidence, the vindication of the court's authority may require the punishment of the miscreant. The remedy of a stay of proceedings, however, is concerned not with the punishment of the miscreant but with the protection of the integrity of the court's ability fairly and justly to determine the matter in dispute.
[21] In Strickland, Kiefel CJ, Bell and Nettle JJ held that a stay of proceedings was warranted in the circumstances of that case because the abuse of process on the part of the prosecution so affected the prospects of a fair hearing that ‘the prejudice to a fair trial is at least to a significant extent incurable’. Edelman J, who concurred with the plurality, explained that an order for a permanent stay is ‘a measure of last resort’ which will be ordered ‘where there is no other way to protect the integrity of the system of justice administered by the court’. His Honour went on to say:
‘Before a permanent stay can be ordered, it is necessary to consider whether there are any other curial measures that could be taken to address any systemic incoherence that would be caused by a trial of the accused. This must be considered because the court's ability to protect its integrity is not confined to orders that grant a permanent stay of proceedings.’
[22] Gageler J, who dissented as to the result of the case, was also of the opinion that a permanent stay of proceedings cannot properly be ordered where the substantial unfairness in the conduct of proceedings is capable ‘of being averted through the adoption ... of measures less drastic than ordering a permanent stay’. And Gordon J, who also dissented as to the result of the case, agreed that there is no occasion to order a permanent stay of proceedings where the prejudice resulting from an abuse of process is curable by less drastic means. Her Honour said:
‘[I]f a fair trial can be had, or if it is not possible to say now that a fair trial cannot be had, why would the administration of justice be brought into disrepute if the prosecutions were permitted to proceed?’”
Justice Adamson has set out the conclusion of the primary judge concerning the podcast at [77]-[78] of her judgment below. The conclusion was amply justified. I have listened to the podcast and regard its object was to incite prejudice against the applicant in a sensationalist fashion with a view to convincing listeners of his guilt and the need for him to be prosecuted. The difficulty is exacerbated by the support given to the objective by apparently reputable members of the community, Mr Hulme, Mr Linden, Mr Milovanovich and the Commissioner of Police (the Commissioner). To say the least, they should not have participated, but irrespective their participation was designed to give the podcast greater weight. Further, the delay is extreme and has led to the loss of potential lines of inquiry which may have been of assistance to the applicant.
In addition, the extent of distribution of the podcast remains uncertain. Justice Adamson in her judgment at [61]-[62] below recorded the downloads of the podcast in the Sydney area up to July 2019 from which date it was not available other than through the misleading use of a Virtual Private Network. However, it is unclear how many people who downloaded the podcast retained it on their devices or have listened to it by streaming rather than by downloading it. It is thus by no means clear the extent to which the podcast remains in the public domain.
Notwithstanding, the primary judge declined to order a stay (R v Dawson [2020] NSWSC 1221 (the primary judgment)). It is accepted that to succeed on the appeal the applicant has to show error in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 (see Jago at 31).
Justice Adamson at [39] in her judgment below has set out the manner in which the grounds of appeal were recast to take account of those principles. Adopting the approach of her Honour, it is convenient to deal first with grounds 3, 5, 6 and 7. Mr Boulten recast the grounds
Ground 3: Failure to take into account prejudice occasioned by the conduct by the applicant’s former lawyer, the former Deputy State Coroner and the Commissioner
I agree with Adamson J that this ground has not been made out. In relation to the applicant’s former lawyer, Mr Linden, the primary judge dealt extensively with his involvement (see [244]-[266] of the primary judgment). The primary judge noted at [262] that senior counsel for the applicant submitted that his conduct was similar to that of the barrister in Tuckiar v The King (1934) 52 CLR 335; [1934] HCA 49, where the applicant’s barrister made a public admission of the applicant’s guilt, thereby rendering a retrial impossible. Although correctly in my view her Honour rejected that submission, it could not be said that Mr Linden’s involvement was not taken into account. That is clear from the following remarks in the primary judgment (at [266]):
“[266] For Mr Linden to agree to speak to a journalist when he must have been alert to the possibility that he would be invited to publicly volunteer his views about the circumstances in which Lynette Dawson ‘disappeared’ is surprising, to say the very least. The potential for anything he might divulge in the course of that interview to erode the applicant’s entitlement to retain the privilege of his communications with his former lawyer is obvious. However, there is in my view a difference, in significant degree, between what Mr Linden did and the conduct of Mr Tuckiar’s counsel: Mr Tuckiar’s guilt is put beyond question by reason of his counsel’s communication to the trial judge of the privileged conversation with the accused where the truth of the confession is confirmed while Mr Linden’s opinion, taken at its highest, is limited to him having residual doubts as to whether Lynette Dawson had left her husband and children in the circumstances deposed to by the applicant in the affidavit sworn for the Family Court proceedings.”
It is also clear from the reasons given by Adamson J that the primary judge took into account the effect the involvement of Mr Milovanovich in the podcast had on the possibility of a fair trial. No criticism can be made of her Honour’s approach in respect of this matter. Her Honour dealt in detail with Mr Milovanovich’s evidence and his opinions (at [267]-[280] of the primary judgment). Her Honour noted that Mr Milovanovich was the Coroner who presided over the second inquest. The primary judge commented (at [268]) on the lack of information of how Mr Milovanovich considered he was free to be spoken to by a journalist about his view of a case he had presided over. Her Honour also noted (at [269]) that he spoke with a journalist on the podcast immediately following the broadcast of the views of the Commissioner. It is evident these matters contributed to the primary judge’s conclusion at [443] concerning the podcast, which Adamson J has set out at [78] of her judgment below. “[S]elf-appointed experts” to whom the primary judge was referring to in that passage were self-evidently Mr Linden and Mr Milovanovich.
So far as the Commissioner was concerned, the primary judge dealt extensively both with conversations the Commissioner had with the journalist leading up to the podcast and his involvement in the podcast. She emphasised the danger of what occurred in the following paragraphs:
“[322] While it is not for this Court to question the wisdom of the Commissioner of Police’s decision to direct his officers to engage with Mr Thomas, or the wisdom of the Commissioner’s public endorsement of the podcast, in my assessment of the evidence adduced on the application (including after giving close consideration to a full compendium of Mr Thomas’ files, including his work files) there remain serious questions as to whether the Commissioner of Police was misled into believing that Mr Thomas had information that would be of great significance to police.
[323] The risk that a fully resourced and professional police investigation into suspected criminal activity might be compromised by interference from an investigative journalist is self-evident.”
Further, in dealing with the possibility of an abuse of process arising from the involvement of the Commissioner, the primary judge reached the following conclusion:
“[435] Were I to accept that the evidence on the application admits of no conclusion other than that the NSW Commissioner of Police also deliberately set out to influence the decision of either the Director of Public Prosecution (or a Deputy Director to whom the power to authorise the bringing of proceedings was delegated) by publicly engaging with the media generally, and with Mr Thomas in the podcast in particular, I would have no hesitation in finding that conduct grossly improper. However, in circumstances where the Commissioner was not called in the proceedings to provide an explanation as to whether, and if so to what extent, he considered that his public endorsement of the podcast was, or might be, interpreted as an attempt by him to influence the content of the legal advice that had been formally sought from the ODPP in conformity with established protocols, I am not prepared to make a finding of impropriety. Further, having not heard from the Commissioner, I am unable to find that he deliberately, or even recklessly, joined forces with Mr Thomas to ensure that the applicant was tried for murder, in disregard of the applicant’s fundamental right to the presumption of innocence and his right to silence. Were I to have made that finding, it would follow that the conduct of the Commissioner would offend the integrity and functions of the Court and its procedures and processes in administering criminal justice within the structure of a criminal trial such that a permanent stay of the applicant’s trial would be an available remedy.
[436] However, I am of the opinion that the Commissioner’s conduct in participating in the podcast in August 2018 was ill-advised, if for no other reason than it gives rise to the spectre of an attempt by him to bring public pressure to bear on the decision-maker(s) within the ODPP when the independence of that office is paramount to the administration of criminal justice in this state.”
The primary judge in these circumstances expressly took the Commissioner’s involvement into account.
It was a matter for the primary judge to consider the weight she should give to the involvement of Mr Linden, Mr Milovanovich and the Commissioner in the podcast. Regardless of whether minds might differ as to its effect, the primary judge clearly took their activities into account.
Ground 5: Alleged failure to take into account the likely impact of “The Teacher’s Pet” podcast on Crown witnesses
As Adamson J pointed out at [170] of her judgment below, the primary judge noted the submission that prospective witnesses may be influenced consciously or unconsciously by the podcast. The primary judge also noted at [230] the concerns of Ms Rebecca Hazel, who with the co-operation of the Dawson family was seeking to write a book on Ms Dawson’s disappearance, that potential witnesses would be influenced consciously or unconsciously by the podcast. As Adamson J also pointed out (at [171] of her judgment below), Detective Poole gave evidence that he had no concern about contamination of witnesses who had given statements prior to the podcast, while accepting caution need be given to the reliability of witnesses who subsequently gave evidence.
Importantly, the primary judge gave further consideration to this issue subsequently in her judgment. Her Honour made the following comment at [304] of the primary judgment:
“[304] Further, as the evidence of Detective Poole makes clear, save for the evidence of six or seven of the fifty witnesses to be called in the Crown case, it is simply not the case that their evidence was given responsive to the podcast. Of those six witnesses, only two are mentioned by name in the Crown statement as adding materially to the Crown case, with another two assisting the defence case.”
The two witnesses to whom her Honour referred as adding materially to the Crown case were a Ms Beverly McNally and Mr Robert Silkman.
The primary judge expanded on this issue in the primary judgment at [403], [406] and [408]-[409]. Her Honour made the following comments:
“[403] In my view, however, there was significant additional evidence available to be considered by the decision-maker(s) in 2018 going to proof of the duration and extent of discord in the applicant’s marriage as at 8 January 1982 in further support of the Crown case that the applicant had a sustained and prolonged attitude of animus towards his wife, culminating in his determination to kill her. That evidence includes the following witnesses, each of whom have been named in a tendency notice served by the Crown in May 2020. The evidence that is sought to be adduced as tendency evidence is identified in the notice by reference to the statements of those witnesses. They include the following:
• SW provided a statement to Detective Poole on 4 November 2018, in part responsive to The Teacher’s Pet podcast. She was in a relationship with the applicant’s brother, Paul Dawson, from 1980 until early 1982, when she was aged 14 to 16, and often spent time with Paul Dawson, the applicant and JC. She said that she often heard the applicant complain about his wife and call her a ‘bitch’.
• Julie Andrew provided an additional statement to police on 15 November 2018 in which she described, in greater detail, the incident she described witnessing in her first police statement. In her further statement, Ms Andrew stated that the applicant was ‘towering’ over Lynette Dawson and had hold of her by the shoulders. She also stated that she remembered seeing Lynette Dawson with marks around her wrists ‘like someone had grabbed them tightly’.
• Beverly McNally was a babysitter for the applicant and his wife prior to JC being invited by the applicant to assume that role in the course of his sexual relationship with her. On 5 July 2018, Ms McNally provided a statement to police in which she described two episodes of domestic violence that she had observed, either in 1978 or 1979. Ms McNally gave evidence that she contacted Crime Stoppers a few years after Lynette Dawson’s ‘disappearance’ but heard nothing from police and, upon hearing the podcast, she made contact with Mr Thomas directly. Her details were later provided to Detective Poole. Ms McNally told police that on one occasion she observed the applicant whip his wife’s back with a tea towel which caused her to cry and, on another occasion, he took hold of her left arm and pushed her into a door frame.
…
[406] Statements were also taken from other witnesses and included in the brief of evidence prepared by Detective Poole and submitted to the ODPP in 2018 which the Crown intends to adduce for other than tendency purposes. They include the following:
• Kay Sinclair provided a statement to police on 10 August 2018. Ms Sinclair is married to a person who went to school with the applicant and attended a wake for Phillip Day in 2007. In her statement, Ms Sinclair said that she was having a casual conversation with the applicant and asked him whether he had previously been married. She said the applicant responded, ‘I have been married before and that she had joined a cult/commune in the Blue Mountains’.
• Gavin Miller was a student at Cromer High School. He provided a statement to police on 17 October 2018. Mr Miller stated that he dated JC for a few weeks in 1980 or 1981 and kissed her at a party. Mr Miller said that two weeks later he was approached by the applicant at school who pointed at him and said words like, ‘Stay the fuck away from [JC]’. Mr Miller said that he stopped dating JC because he was afraid of the applicant.
• Mr Miller’s evidence is consistent with a statement given by Peter Schubert on 20 March 2014. Mr Schubert worked at a Coles store in Dee Why between 1978 and 1982 with JC. At some point during this period he asked JC on a date. Mr Schubert provided a statement to police on 20 March 2014 in which he said that some time later the applicant approach[ed] him near the Coles store, pushed him against a wall and said words like, ‘Stay away from her, don’t go near her, or else’.
…
[408] Finally, there is evidence from a witness independent of JC that the applicant was contemplating or desirous of having someone kill his wife on his behalf, and that he had been apparently ruminating upon that for some years prior to her ‘disappearance’. Robert Silkman provided a statement to police on 9 November 2018. Mr Silkman played rugby with the Newtown Jets with the applicant and claimed to have some criminal connections. Mr Silkman said that in 1975 the applicant approached him and asked him whether he knew anyone who could ‘get rid’ of his wife. When Mr Silkman asked the applicant what he meant, the applicant said, ‘You know get rid of her for good, get rid of her’.
[409] In circumstances where it is obvious that JC is going to be the subject of a sustained attack upon her credibility, Mr Silkman’s evidence is significant. In expressing that view, I should not be taken to have determined the admissibility of that evidence or, for that matter, the admissibility of such evidence as the Crown may seek to adduce to appoint the Newtown Jets Rugby League Club as the place the applicant went with JC to speak to a ‘hit man’ or that Arthur ‘Neddy’ Smith was affiliated with those premises in the 1980s. I was not invited to take questions of admissibility into account.”
It was submitted by the applicant that the primary judge made no analysis of the time post-podcast when witnesses to whom her Honour referred in those paragraphs gave their statements in relation to the broadcast of the podcast, and what was described as the ability of the podcast to distort their evidence.
I do not think the primary judge erred in this manner. Her Honour dealt with the evidence and the time the statements were made to the police. There was no evidence of contamination or collusion, and the question of whether the evidence of the witnesses was contaminated was a matter of speculation. It was not the role of the primary judge to assess witnesses’ credibility. Having referred to the evidence of Detective Poole as to the possibility of contamination, there was no reason to conclude that she did not take this into account in her overall assessment of the position (see [441] of the primary judgment).
For these reasons, this ground of appeal has not been made out.
Ground 6: Alleged failure to take into account the undue pressure applied to the Office of the Department of Public Prosecutions when deciding whether to prosecute the applicant
Ground 7: Failure to take into account the difficulty of framing directions or making rulings to overcome or ameliorate the prejudice occasioned to the applicant by delay and pre-trial publicity
For the reasons given by Adamson J, these grounds of appeal have not been made out.
Ground 4: Application of incorrect test
The passages the subject of this complaint are contained in [381]-[382] of the primary judgment in which her Honour referred to the reasonable possibility of empanelling and swearing-in an impartial jury. In these passages, the primary judge made the following remarks:
‘[381] In addressing that question, the subsidiary and practical question is whether, from what will inevitably need to be a very large pool of prospective jurors, I am satisfied there is at least a reasonable prospect that in the process of empanelment there will be in residue twelve or fifteen people who have not only survived challenge by the parties, but who will have already responded honestly and willingly to the trial judge’s entreaty to declare if they have a fixed view about the case (whether because of what they have read or heard or discussed about it, or because they have aligned themselves with the ‘Justice for Lyn’ cause in other ways because of the podcast or other media, including talkback radio or social media platforms which promoted that cause) and who did not seek to be excused, either because they have not heard of the case or, even if they had, because they considered themselves capable of bringing their own judgment to bear upon the evidence.
[382] Since the Court has no knowledge of the composition of the jury panel and no power to ‘poll’ a jury, I cannot do more than find (as I do) that there is at least some prospect of swearing an impartial jury to try the question of the applicant’s guilt, however difficult or ultimately impossible that might prove to be. The related question whether I am satisfied that, once empanelled, the twelve or fifteen jurors sworn to try the applicant’s guilt will also abide by a direction under s 68C of the Jury Act not to seek to access the podcast again (or indeed for the first time) and to abide by a judicial direction that they not discuss the case with anyone, must be answered in the affirmative.”
It is important to note that in the immediately preceding paragraph, the primary judge correctly stated that the question for determination was “whether there is a ‘real or substantial risk’ that, despite the best endeavours of the trial judge and the essential trust that courts are entitled to repose in the jury system, there will be members of the jury who have prejudged [the applicant’s] guilt, perhaps without being aware of it.” Senior counsel for the applicant accepted that that was the correct approach. Her Honour adopted the same approach in her concluding paragraph (see [441] of the primary judgment).
In these circumstances, it would be surprising if the primary judge deviated in one part of her judgment and adopted an incorrect test. I do not think her Honour did so. Rather her Honour was looking to the future and considering the prospect of empanelling an impartial jury, an essential prerequisite to a fair trial. If there was no prospect of doing so, a stay would be inevitable. Whether it could be done ultimately depends on the empanelment process. It was in this context that the primary judge was referring to reasonable prospects of empanelling a jury not influenced by the podcast. Her Honour was not suggesting it was sufficient that there was a jury empanelled in respect of which there were reasonable prospects that it would be impartial: cf Strickland (A Pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53 at [244] per Gordon J in dissent, but cited with approval in Lunt at [22].
In these circumstances, this ground of appeal has not been made out.
Grounds 1 and 2: Alleged unreasonableness of the decision to refuse a permanent stay
For the reasons given by Adamson J, these grounds have not been made out.
Conclusion
In the result, I agree with the orders proposed by Adamson J.
ADAMSON J: On 5 December 2018 Christopher Dawson (the applicant) was charged with the murder of Lynette Dawson, his first wife, on or about 8 January 1982. On 3 April 2020 he pleaded not guilty to the single charge of murder on the indictment dated 30 March 2020.
Between 18 May 2018 and 5 April 2019, a 16-episode podcast, entitled “The Teacher’s Pet” (the Podcast), was first broadcast on various internet platforms. The gist of the Podcast was that the applicant had killed Ms Dawson so that he could live with and marry JC, who had been a student in the class of which he was a teacher at Cromer High School on the Northern Beaches. The Podcast became popular, as evident from the number of downloads, and gave rise to significant publicity and speculation about the police investigation into Ms Dawson’s disappearance and the eventual charge laid against the applicant.
By notice of motion dated 7 April 2020, the applicant applied for a permanent stay of the criminal proceedings on the basis of the cumulative effect of pre-trial publicity (associated with the Podcast), delay and abuse of process. In support of his application for a permanent stay, Mr Boulten SC, who appeared on his behalf before the primary judge and in this Court, submitted that the cumulative effect of the following factors had caused such irreparable prejudice to the applicant that he could not have a fair trial: the delay between the events which are the subject of the indictment and the date of charging (which he contended had led to the loss of valuable evidence of sightings of Ms Dawson); the prejudicial publicity about such events generated by the Podcast; and the conduct of a various people who occupied, or had once occupied, public office and had expressed views about the applicant which had been broadcast in the Podcast. This category comprised: Jeffrey Linden, who had acted for the applicant in Family Court proceedings and had since been appointed a magistrate; Carl Milovanovich, a retired magistrate, who had been the coroner in the second coronial inquest into Ms Dawson; Paul Hulme, a retired Inspector of the NSW Police; and Michael Fuller, Commissioner of Police (the Commissioner).
The stay application was heard by Fullerton J (the primary judge) over the course of 11 days between 15 July 2020 and 31 July 2020. On 11 September 2020, the primary judge refused the application for a permanent stay but granted a temporary stay and directed that the trial not start before 1 June 2021: R v Dawson [2020] NSWSC 1221 (publication of which is presently restricted).
By application filed on 10 October 2020 pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), the applicant seeks leave to appeal against the primary judge’s refusal of the permanent stay. It was common ground that the refusal was an interlocutory decision: R v Steffan (1993) 30 NSWLR 633 at 635 (Hunt CJ at CL, Grove and Sharpe JJ). It was also common ground that the applicant was required to show error of the type considered in House v The King (1936) 55 CLR 499; [1936] HCA 40: namely, that her Honour’s discretion miscarried by reason of the application of an incorrect test, a failure to take into account a relevant consideration or legal unreasonableness in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.
The grounds of appeal
The applicant seeks leave to appeal on the following grounds:
“1. Her Honour erred by finding that appropriate warnings or directions would cure the prejudice the applicant has suffered as a result of delay and the loss of evidence.
2. Her Honour erred by failing to find that the broadcast of ‘The Teacher's Pet’ podcast and other pre-trial publicity was so egregious that nothing a trial judge could do in the conduct of the trial could relieve against its unfair consequences.
3. Her Honour erred by failing to find that the comments of the applicant's former lawyer, the former Coroner and the Commissioner of Police which were published in ‘The Teacher's Pet’ podcast constituted exceptional circumstances occasioning irreparable prejudice to the applicant's fair trial which could not be relieved against by any action by the trial judge.
4. Her Honour erred by failing to permanently stay the proceedings despite finding only that ‘there is at least some prospect of swearing an impartial jury to try the question of the applicant's guilt’.
5. Her Honour erred by failing to find that the applicant has been and will be prejudiced as a result of the likely impact of ‘The Teacher's Pet’ podcast on Crown witnesses.
6. Her Honour erred in failing to find that the podcast constituted an abuse of process in that, whilst the DPP was considering whether to prosecute the applicant, undue pressure was applied to the Office of the DPP in a manner which undermined the course of justice.
7. Her Honour erred by failing to analyse the difficulties in framing directions or making rulings about the disadvantages the applicant faces as a result of the effluxion of time in the context of prejudice caused to the applicant by the pre-trial publicity.”
In oral argument, Mr Boulten recast the grounds, in substance, as follows, to accord with the principles in House v The King:
1 & 2 The decision to refuse the stay was not one that was reasonably open to her Honour.
4. Her Honour erred in law by applying the incorrect test.
3, 5, 6 & 7. Her Honour’s discretion miscarried by reason of the failure to take into account a (mandatory) relevant consideration: namely:
- the prejudice occasioned by the conduct of the applicant's former lawyer, the former Coroner and the Commissioner of Police (ground 3);
- the likely impact of ‘The Teacher's Pet’ podcast on Crown witnesses (ground 5);
- the undue pressure applied to the Office of the DPP when it was deciding whether to prosecute the applicant (ground 6); and
- the difficulty of framing directions or making rulings to overcome or ameliorate the prejudice occasions to the applicant by delay and pre-trial publicity (ground 7).
Further evidence sought to be adduced on appeal
Mr Boulten sought to adduce further evidence on appeal in the form of affidavits by Angela Skocic, who deposed to the continued accessibility of the Podcast (despite its having been taken down in mid-2019). The affidavits were intended to update the evidence which was before the primary judge as to the prevalence and availability of the Podcast. The evidence was adduced for two purposes: first, to cast light on the material before the primary judge; and, secondly, in the event that this Court is persuaded that her Honour’s discretion miscarried, to provide this Court with current material on which to re-exercise the discretion. The Court rejected the evidence on the first basis but admitted it (subject to ruling on objections made to particular paragraphs) on the second basis.
Factual background
It is convenient to set out the background to the application for leave, in so far as it is relevant to the grounds, by reference to the primary judge’s findings which were, except in respects addressed below, unchallenged. Any paragraph references in my reasons are to be read as references to paragraphs in her Honour’s judgment, except where the context indicates otherwise.
The investigations into Ms Dawson’s disappearance
The primary judge identified the following investigations into Ms Dawson’s disappearance:
| Shorthand term | Period of investigation | Precipitant for investigation | Person in charge |
| Missing Persons Investigation | 1982-1991 | Report by the applicant on 18 February 1982. | Not applicable |
| First Police Investigation | May 1991-May 1992 (suspended) | Approach by JC (the applicant’s second wife), who, following her separation from the applicant, was concerned about the circumstances of Ms Dawson’s disappearance. | Detective Senior Constable Paul Mayger |
| Second Police Investigation | July 1998-late 2014 | Sue Strath (nee Browett), a friend of Ms Dawson, lodged a formal complaint with the NSW Ombudsman and later approached the NSW Police. | Detective Senior Constable Damian Loone |
| First Inquest | February 2001 | Brief of evidence submitted by Detective Loone. | Acting Deputy State Coroner, Jan Stevenson |
| Second Inquest | February 2003 | Further brief of evidence submitted by Detective Loone. | Deputy State Coroner Carl Milovanovich |
| Final Police Investigation | July 2015- December 2018 | No finding made by primary judge. | Detective Senior Constable Daniel Poole of the Unsolved Homicide Team |
The First Police Investigation was precipitated by JC, the applicant’s second wife. After JC separated from the applicant, she spoke about the circumstances of Ms Dawson’s disappearance to a friend of her father, who was a police officer ([82] of the judgment).
In the course of the Second Police Investigation, Detective Loone, the Officer-in-Charge, arranged for an excavation to be conducted of an area around the pool at the property in Bayview, where the applicant had lived with Ms Dawson until her disappearance in January 1982 and where he subsequently lived with JC (the Bayview property). A cardigan was unearthed. It was tested in the course of the Second Police Investigation and subsequently in the Final Police Investigation but nothing relevant was detected.
In February 2001, Detective Loone prepared a brief of evidence (the police brief) for the consideration of Acting Deputy State Coroner Stevenson. He tendered the police brief, which comprised several statements and recorded interviews (listed in [88] of the judgment), including with JC and an interview with the applicant. The matter was considered on the papers at the First Inquest.
Acting Deputy State Coroner Stevenson terminated the First Inquest pursuant to s 19 of the Coroners Act 1980 (NSW), which relevantly provided that:
“19 Procedure at inquest or inquiry involving indictable offence
(1) This section applies if:
…
(b) at any time during the course of an inquest … the coroner is of the opinion that, having regard to all the evidence given up to that time:
(i) the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, and
(ii) there is a reasonable prospect that a jury would convict the known person of the indictable offence,
and the indictable offence is one in which the question whether the person charged or the known person caused the death or suspected death or the fire or explosion is in issue.
…
(1B) If this section applies to an inquest as provided by subsection (1) (b), the coroner may continue the inquest and:
…
(b) after taking evidence to establish the death, the identity of the deceased and the date and place of death—terminate the inquest …
…
(2) The coroner is required to forward to the Director of Public Prosecutions the depositions taken at an inquest or inquiry to which this section applies together with a statement that is signed by the coroner and specifies, in the case of an inquest … referred to in subsection (1)(b), the name of the known person, and the particulars of the offence, so referred to.
…”
Acting Deputy State Coroner Stevenson forwarded the depositions and a statement to the Director of Public Prosecutions (DPP) pursuant to s 19(2) of the Coroners Act, on the basis that she was satisfied of both matters in s 19(1)(b) of the Coroners Act.
On 12 November 2001, the DPP (then Nicholas Cowdery QC) determined that there was insufficient evidence to support a prosecution of the applicant for murder ([7], [91] and [92] of the judgment).
In February 2003, Detective Loone, on the basis of further evidence, referred the matter to Deputy State Coroner Milovanovich. On 28 February 2003, after hearing evidence from several witnesses, the coroner terminated the inquest and referred the matter to the DPP pursuant to s 19(2) of the Coroners Act. In July 2003, the DPP again determined that there was insufficient evidence to support a prosecution of the applicant for murder.
On 21 September 2010, the NSW Police announced a reward of $100,000 for information leading to the conviction of a person for the murder of Ms Dawson. This sum was increased to $200,000 on 23 January 2014 ([103] of the judgment).
In 2010 and 2011, Patricia Jenkins, Ms Dawson’s sister, wrote to the DPP in attempt to persuade the DPP to prosecute the applicant ([104] of the judgment). The DPP (then Lloyd Babb SC) passed the matter to Christopher Maxwell QC, because the applicant had taught at Mr Babb’s high school and been his rugby league coach. Mr Babb formally notified Greg Smith, the then NSW Attorney-General of this matter ([106] of the judgment). It was common ground that Mr Babb had acted with propriety in so doing and throughout, as the primary judge found.
In the course of the Final Police Investigation, a brief of evidence was forwarded to the DPP on 9 April 2018 (prior to the broadcast of the first episode of the Podcast). Detective Superintendent Scott Cook said in a covering letter:
“… This was a murder which attracted, and continues to attract, significant public interest. I respectfully urge you to consider the current evidence with the view of advising in favour of instituting criminal proceedings.”
([116] of the judgment.)
The Prosecution Guidelines of the Office of the DPP for NSW (the Guidelines) provided that the “general public interest is the paramount criterion”. The Guidelines listed relevant factors in the decision whether to prosecute: the seriousness of the offence; whether or not the alleged offence is of considerable general public concern; the staleness of the alleged offence; and the alleged offender’s degree of culpability ([122] of the judgment). The Guidelines also provided that the decision to prosecute ought not be influenced by “possible media or community reaction to the decision” ([123] of the judgment).
On 3 December 2018, the Office of the DPP notified the NSW Police of its decision to prosecute the applicant for murder. The primary judge found, at [118] of the judgment, that the decision to prosecute was made in accordance with the Guidelines. The applicant did not challenge this finding. It follows that this Court is to proceed on the basis that the decision to prosecute the applicant was not, in fact, influenced by the Podcast or the public reaction to it.
The applicant was arrested under warrant from Queensland on 5 December 2018 ([8] of the judgment). He remains subject to conditional bail.
The Crown case
The Crown case that the applicant murdered Ms Dawson on 8 January 1982 or before lunch on 9 January 1982 is a circumstantial case. The Crown will contend that Ms Dawson is, in fact, dead, that the applicant had a strong motive to kill her and the opportunity to do so, and that he killed her, by himself or with another or others.
The Crown will seek to prove the applicant’s guilt on the basis of evidence which it contends is capable of establishing the following circumstances:
(1)At the time of her disappearance, Ms Dawson had two children, then aged four and two years old, who had been conceived after years of her having difficulty in becoming pregnant which had led the applicant and Ms Dawson to consider adoption ([40] of the judgment).
(2)Ms Dawson had been a registered nurse, whose registration had lapsed at the time of her disappearance. At the time of her disappearance she was employed as a child care worker at a child care centre near her home ([41] of the judgment).
(3)Ms Dawson was a loving and attentive wife, devoted to her two children (the elder of whom was due to start school in 1982, a matter about which Ms Dawson was said to be excited) and to her extended family. She was proud of the house she and the applicant had built at Bayview, where the family lived. Ms Dawson had been actively involved in the design and décor of the house ([43]-[45] of the judgment).
(4)The applicant bore long-standing animosity towards Ms Dawson and had, in 1976 and 1981, spoken openly of getting a “hit man” to have her killed, although it is not the Crown case that the applicant ever made such arrangements ([61]-[62] of the judgment).
(5)The applicant disapproved of Ms Dawson’s spending habits, which led to her arranging for her Bankcard statements to be sent to the child care centre where she worked ([75] of the judgment).
(6)At the time of Ms Dawson’s disappearance, the applicant was infatuated with JC, who was then 17 years old, and who had been his student at Cromer High School where he worked as a teacher. He had been in a sexual relationship with JC since late 1980; and she had, at his instigation and against Ms Dawson’s wishes, moved into the family home in October 1981 ([55] of the judgment). It was well known to the staff and students at Cromer High School, as well as JC’S friends and family, that the applicant and JC were in a sexual relationship ([58] of the judgment).
(7)In October 1981, Ms Dawson had learned of the applicant’s sexual relationship with JC when she found them in bed together at the family home. This led to JC moving into the house of Paul Dawson, the applicant’s twin brother, who lived a few doors away. The sexual relationship between the applicant and JC continued. It was condoned by Paul and his wife ([56] and [58] of the judgment).
(8)At times, the applicant was physically violent and verbally abusive towards Ms Dawson within the confines of the Bayview property, as observed by neighbours and others ([59] of the judgment).
(9)Ms Dawson confided in close friends and work colleagues about her fears for her marriage, the applicant’s infidelity and verbal and physical abuse but she did not confide in her mother or any member of her own family. The Crown alleges that, in the hope that the marriage would survive, Ms Dawson refrained from telling her family because she did not want to prejudice them against him ([56]-[57] of the judgment).
(10)In December 1981, Ms Dawson commissioned an artist to produce sketches of her two daughters, which were due to be completed after Christmas in 1981, with payment on delivery. In mid-January 1982, when the artist tried to contact Ms Dawson, the applicant told her, “Lynette has gone away and she doesn’t want the sketches any more” ([44] of the judgment).
(11)After 1 January 1982, JC left Sydney with friends to consider whether to end her relationship with the applicant because she was concerned about his level of control over her. This made the applicant very anxious that he would lose her if he did not get rid of his wife ([63] of the judgment). He phoned JC while she was in South West Rocks and told her that Ms Dawson had left him and that he believed that she had joined a religious sect ([69] of the judgment).
(12)On the afternoon of 8 January 1982, Ms Dawson told two colleagues at the child care centre, who observed bruising on her neck, that the applicant had put his hands around her throat when they were alone in a lift on the way to a marriage counselling session and said, “I’m only doing this once and if it doesn’t work I’m getting rid of you” ([64] of the judgment).
(13)Ms Dawson, who was part of a loving extended family, had organised a surprise party which was to take place in early February 1982 at her home to celebrate the 66th birthday of her mother, Helena Simms ([47] of the judgment).
(14)On 8 January 1982, Ms Dawson arranged for her mother to travel on public transport from her home in Clovelly to the Northbridge Baths, where the applicant worked as a lifeguard, to meet Ms Dawson and her two children there the following day. Ms Dawson did not attend the Baths in accordance with those arrangements ([48] of the judgment).
(15)Ms Dawson has made no contact of any nature with her mother or other family members (other than, allegedly, the applicant) since the evening of 8 January 1982 ([48] of the judgment).
(16)The applicant lied about contact from Ms Dawson and others having seen her alive since her disappearance, including that she made a STD phone call to the Northbridge Baths and told him, when he was called to the phone, that she would not be there as she was with friends on the Central Coast ([49]-[50] of the judgment).
(17)On or before 14 January 1982, the applicant rang JC to tell her that Ms Dawson had left him. He travelled to South West Rocks to collect JC and bring her back to move into the family home at Bayview, where she lived as his de facto wife until their marriage in January 1984 ([68]-[69] of the judgment).
(18)JC observed, when she moved into the Dawson’s family home at Bayview, that Ms Dawson’s clothing, jewellery and other personal effects were still there ([70] of the judgment). By 31 October 1982, these effects had been bundled up into plastic bags and delivered to Ms Simms, with the exception of Ms Dawson’s rings which were eventually refashioned for JC to wear when she married the applicant ([70] of the judgment).
(19)Some time after Ms Dawson’s disappearance, a Bankcard statement was delivered to the child care centre where she had worked. Barbara Cruise, who ran the centre, and who was aware of Ms Dawson’s disappearance and the matrimonial disharmony, opened the statement. Although Ms Cruise could not recall what the statement had said, she said that she would have recalled had it contained a relevant purchase (after 8 January 1982). She subsequently gave the Bankcard statement to the applicant when he came to collect it ([75] of the judgment).
(20)On 18 February 1982 the applicant reported to the NSW Police at Mona Vale that Ms Dawson was missing ([73] of the judgment). None of the checks conducted by the police in accordance with the protocols revealed any relevant transactions or records on her Bankcard, medical funds, nurses registration, Department of Motor Transport or the Department of Social Security.
(21)Of the alleged sightings which were reported, the applicant was the sole source for some. No one who claimed to have seen Ms Dawson spoke with the woman to verify her identity ([78] of the judgment).
(22)When Ms Simms became aware of the claim that Ms Dawson had been seen in Terrigal in 1984, she made substantial collateral inquiries which proved to be fruitless ([78] of the judgment).
(23)The applicant lied to JC, including by telling her that Ms Dawson had called him and told him that she was with friends, was happy and well, was not returning and that no one should worry about her ([70] of the judgment).
(24)The applicant lied to police at Mona Vale on 18 February 1982 when he reported Ms Dawson to be missing, including by saying:
(a)that he had last seen her at about 7am on 9 January 1982 when he dropped her off at a bus stop so that she could go shopping at Chatswood;
(b)that she had called him later that day when he was at the Northbridge Baths, as well as on 10 and 15 January 1982 but that he had not heard from her since; and
(c)that he had collected a Bankcard statement from Ms Dawson’s employer, Ms Cruise, and that it contained two relevant entries: a purchase from Katies at Narrabeen on 12 January 1982 and a purchase from Just Jeans at Narrabeen on 27 January 1982.
(25)The applicant instructed a solicitor, Mr Linden, to commence proceedings in the Family Court against Ms Dawson in 1983 which resulted in the making of orders for substituted service on Ms Simms and, ultimately, orders for full custody of his children and the transfer of Ms Dawson’s interest in the Bayview property to him on the basis of her alleged desertion ([71] of the judgment).
(26)The applicant lied in his interview with police in January 1991, including by saying:
(a)that he was hopeful after the marriage guidance session that the marriage would work out but that his wife had been pessimistic ([65] of the judgment);
(b)that after her disappearance, he was “very anxious” for her to return so that they could “work things out” ([65] of the judgment);
(c)that Ms Dawson had contacted him several times between 9 January 1982 and 15 January 1982 and informed him that she needed extra time away to sort herself out ([66] of the judgment); and
(d)that Ian Kennedy, a friend of his who was a police officer, had tried to contact Ms Dawson in 1985 for a school reunion and had heard that she was in New Zealand (the Crown intends to call Mr Kennedy to prove that he made no such claim) ([66] of the judgment).
As the Crown case is circumstantial, the Crown is required to exclude any reasonable hypothesis consistent with innocence. Because of the way the Crown case has been framed as to time, the Crown must exclude (to the requisite standard) the reasonable possibility that Ms Dawson was alive after 9 January 1982. This hypothesis assumes importance because of the evidence that Ms Dawson was allegedly sighted at various times after 9 January 1982.
The Crown submitted to the primary judge and to this Court that the Crown case is a strong circumstantial case and there are more than reasonable prospects of conviction.
The Podcast and associated publicity
As referred to above, the Podcast was broadcast on various internet platforms between 18 May 2018 and 5 April 2019. It can be seen from the dates of its broadcast that it commenced before the applicant was charged and continued after he was charged. Hedley Thomas, a journalist, performed the role of interviewer on the Podcast. It comprised 16 broadcasts of various lengths, between 40 minutes and two hours. A further episode which was described as a “special update episode” was subsequently broadcast. There was also a significant amount of associated publicity, including excerpts from an episode of Australian Story (an ABC program) entitled, “Looking for Lyn”, which was broadcast in August 2003; a portion of A Current Affair, broadcast on Channel 9 on October 2015; and a 60 Minutes broadcast on Channel 9 in September 2018 ([9] of the judgment). The Podcast was also available through the iTunes store.
The evidence of the number of downloads and the indicated location of the user was presented in a table which purported to record the total downloads for each month from May 2018 (when the Podcast was first broadcast) to September 2019 (after it was taken down by The Australian for users in Australia). The total number of downloads was divided into an “International Total”, an “Australian Total”, a “New Zealand Total”, a “Sydney Total” (which comprised downloads in the greater Sydney area), each of which contributed to a “Global Total”.
The table showed that, when the Podcast began in May 2018, 12,067 people in the Greater Sydney metropolitan area downloaded it. The highest monthly figure in that column was 343,276 in August 2018. By November 2018, the figure had dropped to 66,874, but rose again in December 2018 to 309,418 (being the month of the applicant’s arrest). In March 2019, the figure had dropped to 29,010. The figure for the Greater Sydney area was 18,327 in April 2019; 3,191 in May 2019, 3,724 in June 2019 and 2,199 in July 2019. Thereafter it was accepted that it was not accessible for local users other than by the subterfuge of a Virtual Private Network (VPN) whereby users could overcome publishing restrictions in Australia by misrepresenting their location as being outside Australia.
These figures are indicative but not determinative. Those who downloaded the Podcast did not necessarily listen to it or the whole of each episode. Persons other than the user may have listened to the Podcast on the device of the user who downloaded it. Others may have only heard the extracts of the Podcast which were replayed on other media platforms or read comments on the Podcast which were prevalent on social media. The inference is open that the interest in the Podcast was at its height a few months before the applicant’s arrest and in the month of his arrest but diminished after that date. It is possible that the “aim” of the Podcast, being to bring the applicant to justice, was thought to have been achieved by his arrest and charging and that the public was no longer particularly interested in what Mr Thomas had to say, as there was, as far as the public was concerned, to be a criminal trial of the applicant in which a jury would determine whether the Crown could prove the charge beyond reasonable doubt.
Mr Boulten also relied on the circumstance that, even though the Podcast itself was no longer available to Australian users, except those prepared to use the VPN mechanism, the “reviews” in the iTunes store were still available. Many of the reviews not only referred to the contents of the Podcast but also directed readers to a method for accessing the Podcast by using a VPN
The primary judge made findings about the Podcast in the course of addressing Mr Boulten’s submissions. Her Honour accepted Ms Skocic’s evidence that: “the podcast was ‘downloaded’ over 1 million times by listeners in ‘the Sydney region’ (the presumed catchment of a jury pool for a trial of the applicant in Sydney) between May 2018 and July 2019 before Nationwide News Pty Ltd ‘took down’ the podcast from The Australian’s website” ([18] of the judgment). This finding is to be contrasted with her Honour’s finding at [209] that “[o]n 5 April 2019, the podcast was removed by Nationwide News from all online platforms in Australia.”
I understood it to be common ground that, although Podcast was taken down in April 2019, it remained accessible to local users in some fashion until the end of July 2019 (as evident from the figures in the table of downloads referred to above). The evidence established that the Podcast remained (and continues to be) accessible through various platforms to users who employ a VPN.
It was common ground that there was no evidence before the primary judge or this Court which would enable the court to determine which of the people who had downloaded the Podcast had listened to any of the episodes and how many had listened to all of the episodes.
It is not necessary to recount or summarise in any detail the gist or gravamen of the Podcast which is highly repetitive, deliberately sensationalist and designed to induce the listener to continue to download the episodes on the premise that further revelations would be forthcoming. The tone of the Podcast is evident from the trailer to each of the 16 episodes, which opened with four voices.
The first, a male voice, said, “This podcast series is brought to you by The Australian.” The second, also a male voice, said:
“Lynette Dawson was reported missing by her husband, former Newtown Jets Rugby League star, Chris Dawson.”
The third voice is that of a female actor who said the following words, which the contents of the Podcast revealed to be those of JC:
“He said he was going to get a hitman to kill Lyn then he rang me and said ‘Lyn’s gone, she isn’t coming back’.”
The fourth voice is the actual voice of Julie Andrew, a neighbour who lived next to the Bayview property, and who witnessed an argument between the applicant and Ms Dawson. Ms Andrew said:
“I just want justice and I’d love her little girls to know she didn’t leave them.”
Her Honour found, at [234], that the trailer was “not only designed to attract a wide listening audience but … to sway the listening audience to the point of view … that the applicant killed his wife.”
Her Honour made several findings which were critical of Mr Thomas, whose conduct she found, at [328], was “eloquent of a lack of ethical responsibility as a journalist”. Her Honour also found, at [326], in terms expressed generally but which were plainly intended to describe Mr Thomas:
“It is also self-evident that an investigative journalist who lacks the discipline or insight to discriminate between a narrative based upon meticulous fieldwork and solid research, and a narrative that depends for the telling, in large part, on innuendo and speculation, or a journalist who is so imbued with hubris that they are unable or unwilling to see the difference, poses a risk to a fair trial at a time when courts have become accustomed to developing and maintaining a sound working relationship with the media.”
The Podcast gave rise to further publicity, referred to above. When asked by a reporter for 60 Minutes to express his view of the applicant, Mr Thomas responded:
“I think he is a despicable person; I think he’s severely narcissistic. I think that he’s dangerous. I think that he is lying to himself, lying to his daughters, his friends, his family and has been for a long time.”
Mr Boulten submitted to the primary judge and to this Court that the Podcast contained the following themes and imputations which were adverse to the applicant:
(1)The applicant is guilty and, to the extent to which he denies the offence, he is lying;
(2)The applicant was well-connected with corrupt police who had turned a blind eye to evidence pointing towards his guilt and that any attempt by him to maintain his innocence was a charade;
(3)The applicant knew underworld criminals, who could have arranged for Ms Dawson to be killed;
(4)Evidence that might have supported the applicant at the trial which has disappeared as a result of delay was not credible anyway; and
(5)The applicant was part of a ring of perverted school teachers at schools on the Northern Beaches who had sex with their students.
Mr Boulten submitted that the Podcast created irreparable prejudice to the applicant because of its tendency to influence potential jurors and also contaminate the evidence of Crown witnesses. He contended that the effect of the Podcast was so insidious that those who heard it might not appreciate the extent to which they had been influenced by it.
Her Honour found that the Podcast portrayed the applicant as a “cunning murderer” and a “sexual predator … with underage girls” ([282] of the judgment), who was affiliated with underworld figures who “could have had his wife killed under contract at his bidding” ([286] of the judgment).
Her Honour’s conclusion about the adverse publicity constituted by the Podcast appears from [443] of the judgment, as follows:
“… no application for a permanent stay of a criminal trial, either in this jurisdiction or in any other state jurisdiction, has been based upon a serialised podcast and the media storm which it generated of the kind under consideration here, and none where the opinions from self-appointed experts and prospective Crown witnesses that an accused is a liar, a reprobate and a murderer, or very probably a murderer, have been widely publicised. I am in no doubt that the adverse publicity in this case, or more accurately, the unrestrained and uncensored public commentary about the applicant’s guilt, is the most egregious example of media interference with a criminal trial process which this Court has had to consider in deciding whether to take the extraordinary step of permanently staying a criminal prosecution. Were the podcast published at a time after the applicant had been charged with the murder of his wife, a number of individuals and publishers would inevitably have been liable and likely convicted of a criminal contempt.”
[Emphasis added.]
The conduct of public officials relied upon by the applicant in support of his application for a permanent stay
As referred to above, Mr Boulten relied on the conduct of Mr Hulme, Mr Linden, Mr Milovanovich and the Commissioner in support of the application. Her Honour’s findings about the conduct of each will be examined in turn.
Mr Hulme
Her Honour addressed the conduct of Paul Hulme (a retired Inspector of the NSW Police) at [239]-[243] of the judgment. She extracted his answer to Mr Thomas’s question “what does it take to catch a killer in this case”:
“Confession would be handy from, ah, Chris, that, you know, he’s approaching old age and maybe if he gets sick or something, he wants to clear his chest.”
At [241], her Honour said of the effect of Mr Hulme’s remarks in the Podcast:
“The implication from a senior police officer is stark. The applicant should confess to having murdered his wife and if he pleads not guilty to her murder he is concealing his guilt.”
Mr Boulten highlighted opinions proffered by Mr Hulme (after his retirement) on the Podcast, including that the applicant and his brother were well known from playing rugby union and league and were “well respected in the community”. Mr Hulme was critical of the First and Second Police Investigations but described Detective Loone as “very professional”, “very thorough” and said, “I couldn’t have got a better bloke on the job”. Mr Hulme expressed his view of the applicant several times on the Podcast, including in the following extract:
“I just think it was obvious that you're looking at the husband, plus the fact of his character, plus from the start you might find out the way he was using his position, looks, and whatever else at schools with girls, uh, especially with the babysitter moving in, marrying her. I mean, I think anybody picks up the book and goes, Oh, you've got to be kiddin'. If it's not him, well if it's not him who is it?”
Mr Linden
The primary judge at [71]-[72] noted that in April 1983, the applicant commenced proceedings in the Family Court for the dissolution of his marriage to Ms Dawson, an order for full custody of the children and for the transfer to him of his wife’s interest in the Bayview property on the basis of her desertion. Orders for substituted service on Ms Simms were made. Mr Linden, the applicant’s solicitor, served the process. By 2017, Mr Linden had become a magistrate. In 2017, Mr Thomas solicited an interview with Mr Linden in the course of which Mr Linden expressed his doubts about whether Ms Dawson had actually disappeared. The interview was included in the fourth episode of the Podcast, entitled “Soft Soil”, which was based on the assumption that if the Bayview property was properly excavated, Ms Dawson’s remains might be found.
At [244]-[266] of her judgment, the primary judge set out the role played by Mr Linden (as the applicant’s solicitor in the Family Court proceedings); his present role (as magistrate); the circumstance that he had conducted the interview from his chambers in Lismore; and the fact that he would not be called as a Crown witness as he had no admissible evidence to give. Her Honour noted at [260] that Mr Linden had made a statement to police in October 2018 in which he said:
“As I was being instructed by Chris at the time I don’t remember being suspicious of Lyn’s disappearance, however it was definitely unusual, but his instructions were definite and he was prepared to swear an affidavit that what he was saying was true, so I didn’t have any reason to doubt what he was saying.”
Based on Mr Thomas’ evidence at the hearing, her Honour, at [246], made the following findings about Mr Thomas’ motive for interviewing Mr Linden:
“Mr Thomas confirmed in his evidence that he wanted to make contact with Mr Linden in part because Mr Linden had played football with the applicant but also because he had been the applicant’s solicitor in the Family Court proceedings in 1983-1984 and, at the time Mr Thomas spoke to him, he was a Magistrate of the Local Court whose views Mr Thomas believed would, for that reason, carry added weight.”
Her Honour addressed in detail Mr Boulten’s submission that Mr Linden’s conduct was analogous to that of defence counsel in Tuckiar v The King (1934) 52 CLR 335; [1934] HCA 49 (Tuckiar), addressed further below, and concluded, at [266]:
“For Mr Linden to agree to speak to a journalist when he must have been alert to the possibility that he would be invited to publicly volunteer his views about the circumstances in which Lynette Dawson ‘disappeared’ is surprising, to say the very least. The potential for anything he might divulge in the course of that interview to erode the applicant’s entitlement to retain the privilege of his communications with his former lawyer is obvious. However, there is in my view a difference, in significant degree, between what Mr Linden did and the conduct of Mr Tuckiar’s counsel: Mr Tuckiar’s guilt is put beyond question by reason of his counsel’s communication to the trial judge of the privileged conversation with the accused where the truth of the confession is confirmed while Mr Linden’s opinion, taken at its highest, is limited to him having residual doubts as to whether Lynette Dawson had left her husband and children in the circumstances deposed to by the applicant in the affidavit sworn for the Family Court proceedings.”
Carl Milovanovich
As set out above, Mr Milovanovich, as Deputy State Coroner, conducted the Second Inquest. By the time he was interviewed for the Podcast, he had retired. Her Honour addressed Mr Milovanovich’s participation in the Podcast at [267]-[281]. Her Honour noted that Mr Milovanovich spoke at length to Mr Thomas in the course of episode 14 (entitled “Decision Time”), which began with Mr Thomas’ commentary, as follows:
“… Carl’s [Mr Milovanovich’s] firm view is that this purported telephone call from Lyn was a complete fabrication designed by Chris to buy some time and throw blame on Lyn. Over the entire period of turmoil in her personal life and her marriage, it was Lyn who had always stayed solid. It was Lyn who remained at home looking after the kids, who waited for Chris to sort himself out. It was Lyn who talked to her mother often. Why would Lyn suddenly take off about 12 hours after telling her mother that the marriage counselling went well, that everything was going to be OK, and then only disclose her intentions to stay away to the man who had made her life a misery?”
Her Honour also extracted, at [271], Mr Milovanovich’s response to Mr Thomas asking him why this case, amongst the many hundreds of cases he dealt with, had an impact on him, as follows:
“I think the circumstances, all the circumstances when you put them together, um, are just so remarkable that I just could not accept that Lyn Dawson would just disappear off the face of the earth without there being some human intervention. It just defies all logic that a mother would leave a 4 year old, a 2 year old, um, a family, a job and friends and just disappear. Um, the lies that I think are quite clearly being told by people, ah, in relation to purported phone calls to purported sightings. They were all thrown out there to muddy the water. And I was very disappointed that the police investigation was so poor initially, um, that Lynette Dawson was just treated as another missing person, um, and it wasn’t prioritised.”
Her Honour found, at [281], that no one who listened to the Podcast would be left in any doubt as to Mr Thomas’s views, or those of the people he interviewed. These views included that the applicant physically and emotionally abused both Ms Dawson, before killing her, and JC, after he was “free to marry [JC] having murdered [Ms Dawson].”
Mr Boulten submitted that her Honour did not make a finding about the significance and effect of Mr Milovanovich’s commentary on the Podcast and that this caused her discretion to miscarry (this is the subject of ground 3, addressed below).
The Commissioner
Her Honour made findings about the conduct of the Commissioner, who was interviewed by Mr Thomas on the Podcast. Her Honour found that Mr Thomas had endeavoured to obtain a response from NSW Police to the matters he was canvassing in the Podcast. Detective Poole and other investigating officers had resisted Mr Thomas’s approaches to them. However, as her Honour found, the Commissioner agreed not only to meet with Mr Thomas but also directed his officers (including Detective Poole) to attend a lunch at Surry Hills with Mr Thomas on 13 July 2018 to discuss the matter.
Her Honour set out in considerable detail Mr Thomas’s success not only in obtaining a meeting with the Commissioner but also in persuading him to be interviewed on the Podcast (at [288]-[325]). The Commissioner appeared to share none of the scruples of his officers and was prepared to engage with Mr Thomas to a significant degree, although he accepted, as was recorded at [302] of the primary judge’s judgment:
“It’s very difficult for NSW Police to run commentary on a brief under investigation and particularly as it makes its journey through the criminal justice system.”
Her Honour concluded:
“435 Were I to accept that the evidence on the application admits of no conclusion other than that the NSW Commissioner of Police also deliberately set out to influence the decision of either the Director of Public Prosecution (or a Deputy Director to whom the power to authorise the bringing of proceedings was delegated) by publicly engaging with the media generally, and with Mr Thomas in the podcast in particular, I would have no hesitation in finding that conduct grossly improper. However, in circumstances where the Commissioner was not called in the proceedings to provide an explanation as to whether, and if so to what extent, he considered that his public endorsement of the podcast was, or might be, interpreted as an attempt by him to influence the content of the legal advice that had been formally sought from the ODPP in conformity with established protocols, I am not prepared to make a finding of impropriety. Further, having not heard from the Commissioner, I am unable to find that he deliberately, or even recklessly, joined forces with Mr Thomas to ensure that the applicant was tried for murder, in disregard of the applicant’s fundamental right to the presumption of innocence and his right to silence. Were I to have made that finding, it would follow that the conduct of the Commissioner would offend the integrity and functions of the Court and its procedures and processes in administering criminal justice within the structure of a criminal trial such that a permanent stay of the applicant’s trial would be an available remedy.
436 However, I am of the opinion that the Commissioner’s conduct in participating in the podcast in August 2018 was ill-advised, if for no other reason than it gives rise to the spectre of an attempt by him to bring public pressure to bear on the decision-maker(s) within the ODPP when the independence of that office is paramount to the administration of criminal justice in this state.”
Mr Boulten did not challenge these findings in this Court.
Evidence which has been lost because of destruction of documents or the death or loss of memory of witnesses
The primary judge made the following findings that evidence had been lost due to the passage of time, as well as findings as to the first time such evidence had been sought by the NSW Police or the DPP.
| Type of evidence | When first sought | Paragraph in judgment |
| Documents created in the First Police Investigation | By Detective Poole in the Final Police Investigation. He was unable to locate documents created in the First Police Investigation, which had apparently been lost. | [113] |
| Ms Dawson’s banking records | Not revealed by the evidence, although notation on Missing Persons File indicates that periodic checks were made with Bankcard, medical funds, nurses registration, Department of Motor Transport recorded nil result. | [74] |
| Secondary evidence of Bankcard statements | Detective Loone interviewed Ms Cruise and JC (both of whom had some recollection of seeing Ms Dawson’s Bankcard statements in 1982) in 1998. | [75] |
| “Antecedent report” referred to in the file of the Missing Persons Unit | By Detective Poole in the Final Police Investigation, by which time relevant officer in Missing Persons Unit had died (on 11 September 2015). | [111]-[112] |
Evidence of alleged sightings of Ms Dawson since 9 January 1982
Mr Boulten submitted to the primary judge and to this Court that evidence of post-9 January 1982 sightings of Ms Dawson had significant probative value since the Crown case depended on proof beyond reasonable doubt that the only reasonable explanation for Ms Dawson’s disappearance on or around 9 January 1982 was that the applicant had murdered her. If there was a reasonable possibility that she was alive after that date, the Crown could not prove its case.
Mr Boulten identified five sightings of Ms Dawson, as follows:
(1)the alleged sighting by Ms Butlin;
(2)the alleged sighting by an unidentified person who thought she had seen Ms Dawson at the Narraweena shops in May 1982 and who had identified her by reference to a photograph which Ms Cruise had shown her;
(3)an alleged sighting at Terrigal in 1984 by a friend of Ms Simms who lived in Terrigal;
(4)an alleged sighting by Peter Breese (referred to as Bresse in the judgment), who was a patient at Rockcastle Hospital in mid-1984, who gave a statement to police in June 2019; and
(5)an alleged sighting by Mr Breese’s wife, Jill, who also thought she saw Ms Dawson at the Rockcastle Hospital at around the same time.
The primary judge’s reasons are lengthy and contain a detailed and unchallenged analysis of relevant authority. The parts of [381]-[382] which are the basis for ground 4, if read on their own, would appear to contain the (erroneous) proposition that a permanent stay will not be warranted as long as there is some prospect of empanelling an impartial jury. The effect of Mr Boulten’s submission in support of ground 4 is that, notwithstanding her Honour’s detailed analysis of the relevant authorities, and her correct statement of the test authoritatively established in Dupas, her Honour substituted an entirely unauthorised and incorrect test in [381]-[382]: namely, whether there was a reasonable prospect of obtaining, by the process of empanelment described by her Honour, a residue of 12 or 15 impartial people to serve on a jury to try the applicant.
This conclusion would be a surprising one, given that, as was common ground, the correct test had elsewhere been identified in the judgment: namely, whether there was a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. The test was plainly applied and formed the basis for her Honour’s ultimate conclusion, as expressed in [441], which has been extracted in full above. Mr Boulten also accepted that the final sentence of [380] of the judgment (immediately before the passage sought to be impugned) was a correct statement.
It is necessary to read [381]-[382] both carefully and in context. The correct test was stated and applied at [441] of the judgment (and elsewhere in the course of the analysis of authority) and follows from her Honour’s acceptance of the formulation by Mason CJ and Toohey J in Glennon, which was adopted as authoritative by the whole High Court in Dupas, that a permanent stay will only be warranted when there is nothing a trial judge can do to remedy the prejudice to the applicant (from pre-trial publicity, delay, or other identified factors).
At the beginning of [381], her Honour described the need, when addressing that question (being the substantive question), also to address the “subsidiary and practical question”: namely, what size of jury panel is required (“a very large pool”) to ensure that there will be an adequate residue once members have been invited to seek to be excused (for example, if they have a fixed view about the case) and what the members of the panel ought be asked in the process of empanelment. Her Honour accepted that members of the panel who have heard the Podcast would not need to be excused as long as those persons “considered themselves capable of bringing their own judgment to bear upon the evidence”. In finding, at [381], that there was “at least a reasonable prospect” that there “will be in residue twelve or fifteen” people who can be on the jury, her Honour is saying no more than, if the panel is large enough, then even if many people seek to be excused, there will still be enough left to constitute a jury. I do not understand the reference to “twelve or fifteen” to mean “only twelve or at best fifteen” but rather a reference to the usual numbers of jurors who are empanelled. For a trial which is expected to last no more than three months, 12 jurors are empanelled; for a longer trial, up to 15 jurors can be empanelled (only 12 of whom are entitled to participate in the deliberations, following a selection process determined by ballot).
In [382] her Honour acknowledged the fact that the Court does not know who will be on the panel (and, accordingly, what proportion of its members will seek to be excused on the ground that they have a fixed view, or, indeed, for any other reason) and therefore found, on that basis, that there was a prospect of swearing a jury (that is, 12 or 15 people who had not sought to be excused). The reason for her Honour’s addition of the words, “however difficult or ultimately impossible that might prove to be” is less obvious. In the context of what her Honour said in [381] and the balance of the first sentence of [382], it would appear that the difficulty or potential impossibility relates to the numbers required to be in the jury panel to make sufficient allowance for those who might seek to be excused. This interpretation is consistent with the correct test having been applied by her Honour and what was said in [381]-[382] amounting to an excursion into the practicalities of empanelment rather than an application of the substantive test.
In the second sentence of [382], her Honour simply restated the assumption that jurors abide by directions from the trial judge, including a direction in terms of the statutory prohibition in s 68C(1) of the Jury Act 1977 (NSW), which provides that “[a] juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror.”
Indeed, [381]-[382] of the judgment would appear to be a response to Mr Boulten’s oral submission that it would be “next to impossible to empanel on the jury 12 people or more who don’t know about the podcast, hadn’t heard of the case and haven’t already formed a view that a lot of people know if not believe that he’s guilty”. Read in this way, this portion of her Honour’s judgment constituted an assurance to the applicant that her Honour acknowledged the difficulty and potential prejudice posed by the Podcast and was contemplating, in a concrete way (as was done by the trial judge in Glennon), how the process of empanelment would be conducted.
In my view, when [381] and [382] are read in the context of her Honour’s judgment as a whole, it is apparent that her Honour did not apply the incorrect test. These paragraphs amount to no more than an exploration of how the process of empanelling a jury will operate in the present case. This exploration is consistent with other passages in her Honour’s judgment where she has set out questions that could be asked of the panel or posited directions that could be given to the jury once sworn to safeguard the fairness of the trial.
Even if [381]-[382] were regarded as amounting to an infelicitous use of language or even as posing an incorrect question, I am not persuaded that they are sufficient to cause the discretion to miscarry. The correct test was stated and applied in the judgment, most evidently in the conclusion in [441].
For these reasons, I am not persuaded that ground 4 has been made out.
Grounds 1 and 2: alleged unreasonableness of the decision to refuse a permanent stay
As set out above, Mr Boulten recast grounds 1 and 2 as amounting, in substance, to an allegation that it was not reasonably open to the primary judge to refuse a permanent stay. This ground raises the principles which determine whether a permanent stay is warranted in a particular case, which have been summarised above.
I note for completeness that it was common ground that, because the accused has a right to be tried by a jury, the primary judge did not, and ought not, take into account the availability of a trial by judge alone when exercising the discretion. It was also common ground that, in the event that this Court were to re-exercise the discretion, this factor would be irrelevant.
I propose, for convenience, to address the submissions made by the applicant by reference to the topics raised by Mr Boulten. However, it is plain that the question whether a permanent stay is required (and whether it was open to her Honour to refuse one) depends on the cumulative effect of all the factors identified.
The effect of the Podcast generally
Mr Boulten took this Court through some of the particularly inflammatory and prejudicial passages in the Podcast and associated reporting which ranged over topics which included the following:
(1)The insinuation that the police corruption was the reason the matter had not been properly investigated at the outset;
(2)The suggestion that the applicant had an unhealthy relationship with his twin brother, who had helped him dispose of Ms Dawson’s body because “he may have needed some help”;
(3)Cromer High School was the site of a sex ring whereby teachers had sexual relationships with their students;
(4)The present case was similar to the case of Scott Volkers, the swimming coach who was charged with sexually assaulting a number of young swimmers, in which the DPP also declined to prosecute;
(5)The applicant moved in circles which included Neddy Smith and Mr Hayward, notorious hitmen;
(6)The Commissioner believed that the previous investigations had been flawed but that he endorsed the Podcast and had worked collaboratively with Mr Thomas to achieve “justice for Lynette Dawson and her family”;
(7)Following episode 4 (the “Soft Soil” episode), the police had conducted further excavations of the Bayview property, thereby emphasising the symbiotic relationship between the police investigation and the Podcast;
(8)The Commissioner and Mr Thomas were on close terms and prepared to lunch with each other and exchange text messages (thereby giving credence to the allegations made in the Podcast);
(9)The applicant was exercising his right to silence because his brother, Peter, was a lawyer who would have advised him not to talk and not to defend himself by giving his side of the story;
(10)Mr Linden’s emotive language that he had “shivers” down his spine, when he heard of the applicant’s interest in excavation work done on the Bayview property by subsequent owners, Mr and Mrs Johnston.
Mr Boulten submitted orally as to the effect of the Podcast on the potential jury panel:
“Thousands and thousands of people probably formed that view, if not tens of thousands, and in those circumstances the jury pool is highly likely to have people who are resistant to persuasion in the courtroom. They will start with a predetermined view of the accused’s guilt.
This is no theoretical construct. The accused and his lawyers know that as soon as they stand up in that courtroom and he says, ‘Not guilty,’ that there would be people in that courtroom who know about him and know what people have said about him and these people who have made these comments will have persuaded some at least that there’s some substance already in the prosecution’s allegations.”
Mr Boulten further submitted that any instruction given to, or question asked of, the jury panel and any direction given to the jury which referred to the Podcast would inevitably put the jury on notice of its existence and its prejudicial capacity and any attack advanced by the applicant on the credibility of a witness on the basis of their contribution to, or role in, the Podcast would have the same effect. He contended on that basis that elimination of the influence of the Podcast on the trial was impossible.
A statement to the panel that they may have become aware of “publicity” concerning the accused is commonly made before applications to be excused are entertained, including on the basis that a panel member might, by reason of publicity or some other matter, not feel able to bring an unbiased mind to the trial of the accused. It is sufficient to identify publicity in a generic way without descending to the detail of what it is or where it might be found (which would be self-defeating). Further, it is not uncommon that cross-examination of a witness on the basis of a prior inconsistent statement is conducted in such a way as to conceal the circumstances of the prior inconsistent statement from the jury. Examples include where evidence has been given at a previous trial which has resulted in a hung jury or where a conviction has been quashed and a new trial ordered. The convention is that the cross-examiner asks whether the witness recalls giving evidence (or making a statement) “on another occasion”. This course is generally followed by a direction given by the trial judge to the jury that it is not to speculate about the occasion and that there are interlocutory steps in proceedings such as these where a witness might be required to give evidence.
If there is a concern about what might come out in a trial, there is always the possibility of a voir dire or a Basha inquiry (named after R v Basha (1989) 39 A Crim R 337 (Hunt J, Carruthers and Grove JJ agreeing)), which permits defence counsel to cross-examine a Crown witness in the absence of the jury, or some other procedure which is conducted in the absence of the jury, where such difficulties can be explored without compromising the jury as the tribunal of fact.
The primary judge’s findings, as set out above, demonstrate that her Honour was plainly aware of the prejudicial nature of the Podcast and its ubiquity (at least in certain circles). It was open to her Honour to find that the measures she outlined would be sufficient to overcome the prejudice, as they were held to be in Glennon and Dupas.
Mr Boulten also raised the spectre of potential (or actual) jurors downloading the Podcast and thereby becoming privy to highly prejudicial material. This is a risk in any trial which has been attended by substantial pre-trial publicity, including Glennon and Dupas where the sources which contained the damaging material was still available (except in the case of radio broadcasts which would have been unlikely to be accessible) in the form of past editions of newspapers, books or websites. This risk, as the authorities referred to above have established, can be remedied by steps taken in the course of empanelment and the trial proper.
There is the additional safeguard of directions given to the jury about misconduct and the obligation of each juror not only to abide by judicial directions, but also to inform the trial judge (by note) or the Sheriff’s officer, of any suspected misconduct by another juror so that the question of discharge can be addressed by the parties and determined by the trial judge: see, for example, R v Sio (No 3) [2013] NSWSC 1414, where a juror who had conducted internet research was identified by the foreperson and discharged pursuant to s 53A of the Jury Act, following an investigation into her misconduct by the trial judge who had been alerted to the conduct by the Sheriff’s Officer, following a report from the foreperson.
The effect of the conduct of serving or retired public officials in connection with the Podcast
Mr Boulten sought to place the present case into the Tuckiar category by relying on what Mr Linden, Mr Milovanovich and the Commissioner had said on the Podcast, which he submitted was not mere “media opinion” but, in the case of Mr Linden, was a statement by someone who had actually acted for him (as Tuckiar’s counsel had when making the statement in open court as to his client’s guilt). Mr Boulten accepted that there was no direct analogy between the revelation of guilt based on privileged communications (as in Tuckiar) and speculation about guilt by two magistrates and the Commissioner in the present case but contended that the differences were ones of degree. He submitted that the conduct of the two magistrates and the Commissioner amounted to “perfidy going to the root of the trial” which was analogous to the conduct of the ACC in Strickland.
I am not persuaded that the conduct of Mr Linden, Mr Milovanovich or the Commissioner, either separately or cumulatively, is sufficient to bring the present case into the rare category to which Tuckiar and Strickland belong. The readiness of present or former public officers to venture their views about the applicant’s guilt in the present case was, at best, unfortunate, and, at worst, inappropriate. While the expression of their views is prejudicial to the applicant’s trial, the prejudice can be ameliorated by appropriate directions to the jury, as her Honour found. The present case is to be contrasted with Tuckiar and Strickland, where there was substantial illegality associated with the relevant conduct. In Tuckiar, there was a fundamental breach of legal professional privilege which irremediably compromised the accused’s right to silence by disclosing an alleged confession made to his counsel. In Strickland, the “profoundly unlawful” investigation involved an unauthorised compulsory examination, which also irremediably compromised the appellant’s right to silence because it locked him into a version from which he could not depart in the trial.
The risk that witnesses will be contaminated by the Podcast
Mr Boulten also submitted that witnesses could have been contaminated by listening to the Podcast or otherwise becoming aware of it, without necessarily appreciating the effect the Podcast was having on their recollection. In oral argument, he instanced a witness, Beverley McNally, who had been a babysitter for the Dawson children in 1979 when she was a Year 11 student at Cromer High School, before JC took over that role. Ms McNally’s evidence as to the violence inflicted by the applicant on his wife is to be relied on by the Crown as evidence of his animosity towards Ms Dawson.
In her police statement made on 5 July 2018, Ms McNally said that she had become aware of the Podcast and had listened to the first episode. She contacted Mr Thomas and was interviewed by him for the Podcast at some time after April 2018 (when the first episode was broadcast) and before 5 July 2018 when she made her statement to police. In the course of the interview (the transcript of which was tendered at first instance), Ms McNally told Mr Thomas that she had seen the applicant “hit” Ms Dawson with a tea towel. Mr Thomas then asked her to clarify what she meant in the following exchange:
“[Mr Thomas]: So the tea towel incident? What do you mean? Like, he flicked it at her or he whipped her with it, or what?
[Ms McNally]: Yeah, he whipped her with it, so, in, in the kitchen, but then they tried to cover it up because they didn’t realise I was actually walking in.”
[Emphasis added.]
In her statement to police, Ms McNally described seeing the applicant “whip” Ms Dawson with a tea towel, as a result of finding a lipstick mark on a glass in the kitchen. Mr Boulten contended that the use of “whip” rather than “flick” indicated unconscious contamination and was evidence of the prejudice occasioned by the Podcast and by the way in which Mr Thomas interviewed Ms McNally.
I accept that “whip” connotes punishment and that this word appears to have been suggested by Mr Thomas. However, before this exchange, Ms McNally had already volunteered that she had seen the applicant “hit” Ms Dawson if something was “out of place”.
It is a matter of common experience in a criminal trial that a witness who has (necessarily, having regard to the disclosure requirements) made a statement will not give evidence word-for-word in accordance with the statement. Sometimes the changes are neutral but, on other occasions, they reflect a difference in tone. Crown witnesses, particularly in a murder trial, are rarely truly independent in that each is likely to have a view as to whether the accused is guilty. This view, which is almost certainly inadmissible, may percolate into the vocabulary which a witness uses when giving evidence, whether the witness is aware of it or not. Matters such as the words used by witnesses, their demeanour and their relationship with the accused or the deceased are all matters which are within the province of the jury and are to be weighed in the balance with all the other evidence. Whether the use of the word “whip” was as a result of Mr Thomas’s leading question is a matter of conjecture. I do not regard it as tending to establish a risk of unconscious bias. Further, as set out above, Ms McNally was one of very few Crown witnesses who were identified as a result of the Podcast. As Detective Poole said, the risk of contamination is much less for the vast majority of Crown witnesses who had already given statements before the Podcast was broadcast.
The significance of the grant of a temporary stay
Mr Boulten further submitted that there was a material inconsistency between, on the one hand, her Honour’s finding that the prejudice to the applicant could be remedied or ameliorated by polling the jury panel and giving directions to the jury once selected and, on the other, her Honour’s preparedness to grant a temporary stay until June 2021. He contended that the grant of the temporary stay was consistent only with an acceptance that the applicant’s trial would be unfair if conducted prior to June 2021. Mr Boulten submitted that if it was unfair prior to June 2021 (since, on that basis, directions would be insufficient to cure the prejudice) it could hardly be fair after that date, since there would be no basis for any confidence that directions would be sufficient to cure the prejudice. He relied on this alleged inconsistency in support of his argument that the decision to refuse a stay was legally unreasonable.
I regard this alleged inconsistency as more apparent than real. Her Honour observed at [440] that “delay in the appointment of a trial date will also have the likely effect that the adverse impact of the podcast will progressively deteriorate as memories of it recede”. Thus, there is no particular significance to be attached to June 2021 (which was in the order of 9 months after delivery of her Honour’s judgment), since the jury panel’s members’ recollections of the Podcast can be expected to fade over time rather than disappear on a particular date. The delay in the trial until a date after June 2021 (assuming this to have been a choice rather than an inevitable consequence of the demands of the criminal list in the Common Law Division) ought, in my view, to be regarded as another safeguard imposed by the Court for the benefit of the applicant.
The Podcast can be expected to suffer the same fate as the media articles, books and websites in Glennon, where, although 33-43% of the sample of the adult population polled had heard of Glennon in some form or other, no respondent to the survey volunteered knowledge of any of his prior convictions. For all the Podcast’s popularity, it can hardly be expected that interest and recollection will be sustained indefinitely, particularly having regard to the ubiquity of so-called “True Crime” as a means of popular entertainment as well as supervening news stories which have dominated the media in New South Wales since, which include the 2020 bushfire season; the COVID-19 pandemic and the 2021 floods. The Crown Case Statement could be regarded as being at least as incriminating as the Podcast, although the Podcast contained material which was presented in a highly repetitive, prejudicial, sensationalist and inflammatory way, and the Crown Case Statement is confined to evidence which is either admissible or arguably admissible.
The effect of delay
Although it is not appropriate for a person to be charged when the available evidence is adjudged by the DPP to be insufficient to entitle a jury to convict on a reasonable basis (since the result will be either an acquittal or an unreasonable verdict of guilty), experience indicates that further evidence might come to hand which strengthens the evidence of guilt and makes it proper to prosecute. As Mr Boulten acknowledged, the police should never “comprehensively close a file into a murder” and that it should always be available and ready to reopen to continue the investigation. The reasons for this are plain. Murder is a serious crime. Allowing a suspected homicide to go unprosecuted where there is a suspect tends to diminish confidence in the administration of justice and may leave open the way for vigilantism. As Madam Crown said at the outset of her submissions, the charge in the present case is one of murder and, as such, is “the most serious offence in the criminal calendar”. That the alleged victim was the applicant’s wife makes it, if proved, “the most extreme act of domestic violence”.
The passage of time is not, of itself, an indication of police ineptitude or lack of concern for putting together a brief of evidence for the DPP. Although criticisms were made of the earlier investigations, the police continued to investigate, not one but two coroners referred the matter to the DPP and the DPP twice refused to prosecute, for the reason that the evidence was thought to be insufficient to support a conviction. The additional evidence identified by her Honour was what, as her Honour found, made the difference to the DPP and caused the charging of the applicant.
Because of the inappropriateness of charging an accused on indictment before there is sufficient material on which the person could properly be convicted, there is not uncommonly a delay between the incident which is the subject of the charge and the eventual charging of an accused. In the present case, the delay was occasioned by difficulties of proof and the undesirability and inappropriateness of proceeding without sufficient evidence. The delay did not reflect any lack of interest on the part of police. Indeed, the doubling of the reward from 2010 to 2014 was an indication that the police were still hopeful of obtaining further evidence to implicate either the applicant or someone else in the homicide of Ms Dawson. It was open to her Honour to find that any prejudice arising from delay, together with the other matters of potential prejudice to the applicant, could be sufficiently ameliorated by the giving of directions, as commonly occurs in criminal trials where the trial takes place, for whatever reasons, years after the events which are the subject of the charge.
Conclusion
Ultimately the question whether legal unreasonableness has been established is a matter of conclusion since it does not depend on the establishment of patent error. Having regard to the matters set out above, it was open to her Honour to refuse the permanent stay. The occasions on which a permanent stay of criminal proceeding on the basis of pre-trial publicity and delay will be warranted are very few. I do not regard the conduct of the public officers referred to above as sufficient to put the present case into the rare category exemplified by Tuckiar and Strickland where there is nothing a trial judge could do to remedy the prejudice to the accused. It was open to her Honour to be satisfied that steps could be taken by the trial judge, both in the course of empanelment and in the course of the trial, to remedy the prejudice that would otherwise be suffered by the applicant by reason of the individual and cumulative effect of the factors relied on by Mr Boulten. For these reasons, neither ground 1 nor ground 2 has been made out.
Further evidence sought to be adduced on appeal
As referred to above, this Court ruled that the further evidence was admissible only in the event that this Court found error and was required to re-exercise the discretion whether to order a permanent stay. As I am not persuaded that the applicant has established error, it is not necessary to address the Crown’s further objections to particular paragraphs of the affidavits of Ms Skocic on which the applicant relied.
Proposed orders
For the reasons given above, I propose the following orders:
(1)Grant leave to appeal.
(2)Appeal dismissed.
BELLEW J: I have had the benefit of reading in draft the judgment of Adamson J.
I agree with the orders proposed by her Honour, and with her Honour’s reasons.
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Amendments
10 May 2022 - Names of JC and SW anonymised
25 November 2022 - In [57](7) - "and [58]" inserted after "[56]"
In [101] - "[18]" replaced by "[16]"
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