Dawson v The King

[2024] NSWCCA 98

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Dawson v R [2024] NSWCCA 98

Hearing dates:

13 – 15 May 2024

Decision date:

13 June 2024

Before:

Ward P at [1];
Payne JA at [6];
Adamson JA at [31]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME — appeals — appeal against conviction — alleged significant forensic disadvantage by reason of delay in prosecution — where applicant convicted of murder four decades after offending conduct — whether trial judge erred in failing to direct himself pursuant to s 165B of the Evidence Act 1995 (NSW)

CRIME — appeals — appeal against conviction — application of proviso — whether trial judge’s erroneous use of lies as evincing a consciousness of guilt gave rise to a substantial miscarriage of justice — whether applicant’s guilt was proved beyond reasonable doubt on admissible evidence notwithstanding error

CRIME — appeals — appeal against conviction — lies as evidence of consciousness of guilt — where Crown at trial identified five lies it intended to rely on for such purpose — whether trial judge erred in relying on other lies — whether trial judge’s reasons why lies supported a consciousness of guilt were inadequate — application of Edwards v The Queen (1993) 178 CLR 198 — use of lies in criminal proceedings

CRIME — appeals — appeal against conviction — unreasonable verdict — whether verdict of guilty of murder following trial by judge alone was unreasonable — where Crown case was wholly circumstantial — whether hypothesis consistent with innocence was excluded beyond reasonable doubt

Legislation Cited:

Crimes Act 1900 (NSW), s 18

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Procedure Act 1986 (NSW), ss 132, 133

Evidence Act 1929 (SA), s 34CB

Evidence Act 1995 (NSW), ss 137, 165B

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

Binns v R [2017] NSWCCA 280

Brown v R [2022] NSWCCA 116

Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456

Cooper v The Queen (2012) 293 ALR 17; [2012] HCA 50

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

Dawson v R (2021) 108 NSWLR 96; [2021] NSWCCA 117

De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48

Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

EE v R [2023] NSWCCA 188

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Firbank v R [2011] NSWCCA 171; (2011) 223 A Crim R 301

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Groundstroem v R [2013] NSWCCA 237

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jarrett v R (2014) 86 NSWLR 623

Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7

Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

McNamara v The King [2023] HCA 36; (2023) 98 ALJR 1

Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217

Pratten v R [2021] NSWCCA 251

R v Cassebohm (2011) 109 SASR 465; [2011] SASCFC 29

R v Dawson [2020] NSWSC 1221

R v Dawson [2022] NSWSC 552

R v Dawson [2023] NSWSC 1632

R v GJH [2001] NSWCCA 128; (2001) 122 A Crim R 361

R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455

Shanmugam v R [2021] NSWCCA 125

Shepherd v The Queen (1990) 170 CLR 573 at 579-580; [1990] HCA 56

Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Wilde v R (1988) 164 CLR 365; [1988] HCA 6

Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Texts Cited:

Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006 (NSW)

Explanatory Memorandum, Evidence Amendment Bill 2007 (NSW)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 October 2006

Category:

Principal judgment

Parties:

Christopher Michael Dawson (Applicant)
Rex (Respondent)

Representation:

Counsel:
B Rigg SC / C Wasley (Applicant)
B Hatfield SC / E Nicholson (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/372527

Publication restriction:

Publication of names and any information or material that may lead to the identification of persons who were children at the time of the offence is prohibited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A)

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law — Criminal

Citation:

R v Dawson [2022] NSWSC 1131

Date of Decision:

30 August 2022

Before:

Harrison J

File Number(s):

2018/372527

HEADNOTE

JUDGMENT

Ward P

Payne JA

Application of the proviso in this case

Orders

Adamson JA

Relevant statutory provisions

Conclusion

The Crown case

The applicant’s case

The trial

The Crown’s opening submissions

The Crown’s closing submissions

The defence opening submissions

The defence closing submissions

The alleged lies relied on by the Crown as implied admissions on the basis that the applicant evinced a consciousness of guilt

The verdict judgment

The finding that it was not reasonably possible that the applicant received the Northbridge Baths phone call and that the applicant’s version to that effect was untrue

The use of lies as a consciousness of guilt

The decision not to give a s 165B direction

The requirements of a trial judge when coming to a verdict in a trial by judge alone

Ground 1: alleged failure by the trial judge to give himself a warning pursuant to s 165B of the Evidence Act

The relevant principles

The application of the principles in the present case

The matters relied on before the trial judge

The bankcard statements

The applicant’s versions

The evidence at trial

Whether the applicant suffered a significant forensic disadvantage by reason of delay

The records of Northbridge Baths including the telephone records

Other telephone records

Relevance of the refusal to grant a permanent stay

Conclusion

Grounds 2 and 3: alleged errors with respect to use of lies as consciousness of guilt

Ground 4(ii): alleged unreasonable verdict

The applicable principles

The competing hypotheses

Evidence which does not need to be considered

The facts

The deceased and her family

The applicant and his family

The marriage of the applicant and the deceased and their family

The applicant’s connection with JC

The circumstances of their meeting

The applicant’s behaviour towards potential rivals for JC

The deceased’s work and financial circumstances

The initial sexual approach by the applicant to JC and its escalation

JC’s move into the Bayview house in October 1981

The applicant’s nose operation and the departure of JC from the Bayview house

The commissioned portraits of XD and YD

The North Manly unit

The trampoline incident

The Christmas party in early December 1981

The proposed sale of the Bayview house

The Gold Coast trip

Christmas 1981

Boxing Day 1981 to New Year 1982

Early January 1982

JC’s trip to South West Rocks

Family movements in early January 1982

8 January 1982

9 January 1982: the Northbridge Baths

The applicant’s call to JC and his collection of her from South West Rocks

The return of JC to Sydney

11 January 1982

Ms Andrew’s observations of the backyard of the Bayview house

The sketches of XD and YD which the deceased had commissioned

JC’s 18th birthday

The missing person’s report made by the applicant on 18 February 1982

Alleged sighting by Sue Butlin

Ongoing Missing Persons investigation

The dissolution of the marriage of the applicant and the deceased

The marriage of JC and the applicant, their move to Queensland and the birth of KD

The progress of the investigation into the deceased’s disappearance

The applicant’s representation about what Ian Kennedy had told him

The end of the marriage of JC and the applicant

The meeting between JC and Greg and Merilyn Simms

The Mayger/Wright investigation from 1990-1992

The investigation conducted by Detective Damian Loone from 1998 to July 2015

The school reunion in about 2007

The investigation conducted by Detective Daniel Poole from July 2015

Proof of life enquiries

Character evidence

Other matters

Consideration of ground 4(ii)

The limited challenge to JC’s evidence

The alleged hypothesis consistent with innocence

Grounds 4(i) and 5(i) and (ii)

The application of the proviso

Proposed orders

HEADNOTE

[This headnote is not to be read as part of the judgment]

The deceased, Lynette Dawson, and her husband, the applicant, Christopher Dawson, lived in Bayview, on Sydney’s Northern Beaches, with their two children, who were aged 4 and 2 at the time of their mother’s disappearance. On 18 February 1982, the applicant reported the deceased missing, saying he had last seen her on 9 January 1982.

Over the two years prior to the deceased’s disappearance, the applicant had formed a sexual relationship with JC, a teenager and student at the high school where the applicant taught. JC worked as a babysitter for the Dawsons and, for a brief period while the deceased was alive, lived at their Bayview home. On about 11 January 1982, the applicant moved JC into the Bayview home.

There have been no reliable sightings of the deceased since 8 January 1982. On 12 December 2018, the applicant was arrested and charged with the deceased’s murder, to which he pleaded not guilty. Between May and July 2022, the applicant was tried by judge alone in the Supreme Court. The Crown case, which was wholly circumstantial, was that on 8 January 1982 or before noon on 9 January 1982, the applicant intended to kill and did kill the deceased, in order to install JC in his household in place of the deceased. The applicant’s case was that the Crown had not excluded beyond reasonable doubt the possibility that the deceased, distressed at the state of her marriage, had voluntarily left the Bayview home and was still alive after noon on 9 January 1982.

On 30 August 2022, the trial judge found the applicant guilty of the deceased’s murder. Three aspects of the decision were particularly important on appeal. First, as the trial judge was not satisfied that the applicant had suffered a significant forensic disadvantage because of delay, he did not warn himself under s 165B of the Evidence Act 1995 (NSW) (although he otherwise took the consequences of delay into account). Secondly, the trial judge found that the applicant had lied by representing that the deceased called him at the Northbridge Baths on the afternoon of 9 January 1982 and at various times thereafter. Thirdly, although the Crown relied on only five discrete lies (COG (1)-(5)) as amounting to a consciousness of guilt, the trial judge relied on other lies told by the applicant in this way.

The applicant sought leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The issues on appeal were:

1. Was the verdict unreasonable on the whole of the evidence? (ground 4(ii))

2. Did the trial judge err by failing to give himself a warning under s 165B of the Evidence Act? (ground 1)

3. Were aspects of the trial judge’s reasoning illogical or clearly mistaken in a way that amounted to a miscarriage of justice or rendered his verdict unreasonable? (grounds 4(i) and 5)

4. Did the trial judge err in his use of lies as implied admissions? (grounds 2 and 3)

5. Notwithstanding the Court’s finding that the trial judge erred in relation to issue (iv), should the Court apply the proviso in s 6(1) of the Criminal Appeal Act and dismiss the appeal on the basis that no substantial miscarriage of justice actually occurred?

The Court (Adamson JA, Ward P and Payne JA agreeing at [1] and [30] respectively) held, dismissing the appeal:

On issue (i): alleged unreasonable verdict

1. The approach when reviewing the reasonableness of a conviction by a judge alone is the same as that following a jury trial, namely, to determine whether it was open to the tribunal of fact to be satisfied of the applicant’s guilt beyond reasonable doubt: Adamson JA at [153]-[154]. So as not to divert itself from that task, the appeal court is to view the trial judge’s reasons for verdict with circumspection: Adamson JA at [154].

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied.

1. In assessing whether the evidence could support a conviction, the Court disregarded evidence that the trial judge had rejected as unreliable: Adamson JA at [161]-[162]. Further, the Court approached the evidence on the basis that the Crown no longer relied on COG (1)-(5) to establish consciousness of guilt: Payne JA at [26]; Adamson JA at [163], [362].

2. Except where rejected at trial, all of JC’s evidence was accepted, since it was internally consistent and corroborated: Adamson JA at [339]-[347]. The trial judge’s error in relying on certain lies as a consciousness of guilt (see issue (iv)) did not affect his assessment of JC’s credibility: [347].

3. The Crown’s circumstantial case was compelling: Ward P at [5]; Payne JA at [28]-[29]; Adamson JA at [376]. Given her close family bonds, the deceased would not have left her marriage or her children voluntarily: Adamson JA at [349]. After 8 January 1982 (except according to the applicant’s uncorroborated evidence), the deceased neither contacted friends nor family, nor attended work: Adamson JA at [288], [351]-[352]. The applicant’s actions showed his determination to make his relationship with JC public and permanent: Adamson JA at [364]. The applicant was prepared to take risks to preserve their relationship when JC tried to end it: Adamson JA at [227]-[252], [363]-[364]. Shortly after the deceased’s disappearance, the applicant induced JC to return from her holiday with friends in South West Rocks and move into the Bayview home by telling her that the deceased had gone and was not coming back: Adamson JA at [370]. When JC agreed, he drove to South West Rocks to collect her and immediately installed her in the Bayview home as his intimate partner: Adamson JA at [281]-[283], [343]-[345], [372]. The deceased’s possessions, including her rings and contact lenses, remained at the Bayview home after her disappearance and the applicant invited JC to take what she wanted from those possessions: Adamson JA at [286], [372].

4. The applicant’s “hypothesis consistent with innocence” was not reasonably open: Ward P at [4]; Payne JA at [29]; Adamson JA at [349]-[376]. The applicant’s lies and half-truths showed he was entirely without credibility: Adamson JA at [352]-[356], [373]. No credence could be given to the applicant’s uncorroborated claim that the deceased called him at the Northbridge Baths on 9 January 1982: Adamson JA at [352], [358].

5. The evidence proved the applicant’s guilt beyond reasonable doubt; the verdict was not unreasonable: Ward P at [4]; Payne JA at [7], [28]-[29]; Adamson JA at [376].

On issue (ii): whether a warning under s 165B of the Evidence Act was required

1. A warning under s 165B of the Evidence Act is required only where a trial judge is satisfied that the party relying on the section has established that the delay in prosecuting caused them to suffer a real forensic disadvantage: Adamson JA at [93], [98]. The question invites attention to the facts of the particular case: Adamson JA at [96]-[102].

Brown v R [2022] NSWCCA 116; Shanmugam v R [2021] NSWCCA 125; Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354; Jarrett v R (2014) 86 NSWLR 623; Groundstroem v R [2013] NSWCCA 237; R v Cassebohm (2011) 109 SASR 465; [2011] SASCFC 29, applied.

Binns v R [2017] NSWCCA 280, cited.

1. The applicant failed to show that the almost 40 year delay in prosecution had caused him a significant forensic disadvantage: Ward P at [1]; Payne JA at [6]; Adamson JA at [130]-[131]. First, given the applicant’s different versions of events, it was unclear whether the unavailability of certain bankcard statements was relevant and, in any case, it was his own failure to retain those statements (not any delay) that caused them to be unavailable: Adamson JA at [116]-[118]. Secondly, the lack of records showing the applicant was working at the Northbridge Baths on 9 January 1982 caused no disadvantage, since the Crown conceded the applicant was working there on that day: Adamson JA at [120]-[122]. Thirdly, records of phone calls made to the Northbridge Baths on 9 February 1982 were unavailable because of limited technology at the time, not because of delay, and records of phone calls to the applicant’s house would not have assisted the applicant: Adamson JA at [126]-[128].

On issue (iii): alleged illogical or mistaken reasoning

1. If, in a trial by judge alone, the trial judge uses illogical or clearly mistaken reasoning to decide an important question of fact, that may amount to a miscarriage of justice: Adamson JA at [377]. When considering such a ground, the whole verdict judgment must be read fairly: Adamson JA at [385].

EE v R [2023] NSWCCA 188, applied.

Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70, cited.

1. The deliberation process requires all the evidence to be taken into account. However, a verdict judgment can only proceed word by word and sentence by sentence. The judgment must explain the reasoning but is not required to simulate the reasoning process: Adamson JA at [396]. The way in which the reasons are worded and ordered is a matter for the trial judge: Adamson JA at [395].

2. The trial judge was neither illogical nor clearly mistaken in his reasons for rejecting evidence of the Northbridge Baths phone call and other evidence showing the deceased was alive after 8 January 1982, even though some aspects of his language could, on one reading, suggest that he relied on insufficient evidence when reaching that conclusion. Rather, when the judgment is read as a whole, it is clear that the trial judge relied on all the evidence and was mindful of the Crown’s obligation to exclude beyond reasonable doubt the possibility that the deceased was alive after midday on 9 January 1982: Ward P at [1]; Payne JA at [6]; Adamson JA at [382]-[394], [397].

On issue (iv): alleged error regarding use of lies as a consciousness of guilt

1. Certain lies, under strict conditions, may be used as implied admissions because they show consciousness of guilt on the part of an accused (Edwards lies). They must be distinguished from other lies which are relevant to the credibility of accounts the accused has given to others and, if the accused gives evidence, to that evidence (Zoneff lies): Adamson JA at [134].

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, applied.

1. The tribunal of fact can only use a lie as an implied admission if the prosecutor relies on the lie for that purpose and three conditions are satisfied. First, the statement sought to be relied on is proved to be a deliberate lie. Secondly, the only explanation for the lie is that the accused knew the truth would implicate them in the offence. Thirdly, the tribunal of fact is directed or, in the case of trial by judge alone, self-directs that there may be other reasons for the lie other than a consciousness of guilt: Adamson JA at [137].

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, applied.

1. At trial, the Crown relied on COG (1)-(5) as Edwards lies. The judge erred by relying on other lies in addition to these lies as amounting to a consciousness of guilt: Ward P at [1]; Payne JA at [6]; Adamson JA at [145]-[147].

2. Although the trial judge set out the substance of the Edwards requirements, his Honour failed to articulate whether each of COG (1)-(5) satisfied the Edwards conditions and if so why: Adamson JA at [148]-[149]. This was an error in his Honour’s reasoning: Ward P at [1]; Payne JA at [6]; Adamson JA at [149].

On issue (v): whether the proviso ought be applied

1. Even if an appeal court finds there has been an error of law or miscarriage of justice, it may dismiss the appeal provided it is satisfied that no substantial miscarriage of justice has actually occurred pursuant to s 6(1) of the Criminal Appeal Act: Payne JA at [10]-[25]; Adamson JA at [400]-[406]. There is no single test for what constitutes a substantial miscarriage of justice.

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7, applied.

1. Before the proviso can be applied, the court must be satisfied of the applicant’s guilt, on the whole of the record of trial: Ward P at [4]; Payne JA at [19]; Adamson JA at [401], [406]. That task is entrusted to each member of the court personally and is performed with the advantages and disadvantages of deciding an appeal on the record of trial.

Cooper v The Queen (2012) 293 ALR 17; [2012] HCA 50; Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, applied.

1. The appeal court must consider the nature and effect of the error in every case, because some errors will prevent the appeal court from assessing the accused’s guilt for itself: Payne JA at [20]; Adamson JA at [401], [403]-[406].

   Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44; Wilde v R (1988) 164 CLR 365 at 373; [1988] HCA 6; Pratten v R [2021] NSWCCA 251; Firbank v R [2011] NSWCCA 171; (2011) 223 A Crim R 301, cited.

2. The evidence proved beyond reasonable doubt that the applicant was guilty and no substantial miscarriage of justice occurred: Ward P at [3]-[4]; Payne JA at [28]; Adamson JA at [409]-[410], [412]-[413]. The trial judge’s error in his use of Edwards lies (see issue (iv)) did not prevent the Court’s assessment of guilt on appeal: Payne JA at [26]. The applicant’s statements, many of which were lies, were largely superfluous to the Crown’s case: Adamson JA at [411].

JUDGMENT

1. WARD P: I have had the advantage of reading in draft the comprehensive reasons of Adamson JA, with which I agree. As to grounds 2 and 3, I wish to add that it seems to me that the experienced trial judge, in the section of the verdict judgment headed “Lies as Consciousness of Guilt”, may have been intending to gather together the various lies and inconsistencies that could permissibly be used when assessing the credibility of the accounts given by the applicant to others as to the disappearance of his wife, without necessarily treating each of them as an Edwards lie (see Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63), since his Honour had earlier (at [568]-[573]) directed himself as to the conditions precedent for using such a lie (or omission) as a consciousness of guilt and had stated at [573] his intention to apply the principles mandated in that regard. In that sense, the heading is unfortunate but I do not read headings as part of the reasons for judgment as such.

2. However, as Adamson JA has noted, in making a finding as to lies, his Honour referred to various of the lies on which the Crown did not expressly rely in this context as evidence of a consciousness of guilt and did not separately distinguish between Edwards lies (in respect of which the conditions in Edwards were required to be satisfied) and other lies or inconsistencies (in respect of which those conditions were not required to be satisfied). Thus, for the reasons more fully set out by Adamson JA there was error.

3. Nevertheless, I too have concluded that the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied. In my opinion, no substantial miscarriage of justice has occurred as a result of the error identified in grounds 2 and 3 of the grounds of appeal.

4. I have independently reviewed the evidence (other than that excluded by the trial judge), which has been helpfully summarised in detail by Adamson JA, and the record of the proceedings both for the purposes of deciding whether the proviso should be applied (given the error found in relation to grounds 2 and 3) and, separately, for the purpose of considering the unreasonable verdict ground of appeal (ground 4). I am firmly of the view that the Crown proved beyond reasonable doubt the guilt of the applicant on the charge of murdering his wife and excluded beyond reasonable doubt the hypothesis that the deceased voluntarily left the Bayview Home, her husband, children and family on 8 or 9 January 1982. The circumstantial case against the applicant was compelling and there is no reasonable doubt as to the applicant’s guilt. No substantial miscarriage of justice has occurred. Rather, guilt was proved to the criminal standard on the admissible evidence at the trial (see Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7 per Kiefel CJ, Bell, Keane and Gordon JJ at [12]).

5. For completeness, I also agree with the supplementary observations of Payne JA.

6. PAYNE JA: I have had the advantage of reading Adamson JA’s comprehensive reasons in draft. I agree with her Honour, for the reasons she gives, that grounds 1 and 5(i) and (ii) of the appeal must be rejected. I also agree with her Honour, for the reasons she gives, that grounds 2 and 3 of the appeal should be allowed.

7. By ground 4(ii), the applicant contended that the primary judge’s verdict was unreasonable. I have independently assessed the evidence relied on at trial, as well as the record of the proceedings, and I have no doubt about the applicant’s guilt. This was a very strong circumstantial case. Ground 4(ii) should be dismissed.

8. Further, I am not persuaded that the verdict was unreasonable because of alleged errors in the primary judge’s reasoning. I therefore agree that ground 4(i) should be rejected.

9. On the application of the proviso, I have reached the same conclusion as Adamson JA. Notwithstanding the errors in the primary judge’s reasoning established by grounds 2 and 3, there was no substantial miscarriage of justice, and I would dismiss the appeal.

10. Section 6(1) of the Criminal Appeal Act 1912 (NSW) provides:

(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

11. In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 a unanimous High Court outlined the history and background of the proviso and explained its purpose. Before the criminal appeal statute was enacted, the Court said, English appeal courts would often order a new trial automatically if, in the appeal courts’ view, any inadmissible evidence had been left to the jury. This inflexible approach was called the “Exchequer rule”. How strict the common law rule really was, as a matter of historical fact, may be contestable, and there is reason to believe the rule’s real force was that an appellant was entitled to a new trial only when it seemed that the irregularity might have affected the jury’s verdict: Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 per Gageler J at [103]-[109].

12. The Criminal Appeal Act operated to abolish the Exchequer rule and replace it with a statutory mechanism. That mechanism was the proviso, which rests on a distinction between a bare “miscarriage of justice” and a “substantial” miscarriage of justice. As the High Court explained in Weiss, a “miscarriage of justice”, in the Exchequer sense, was any departure from trial according to law. A “substantial” miscarriage is something more than a bare departure from the applicable rules, as the High Court explained:

[18]    By using the words "substantial" and "actually occurred" in the proviso, the legislature evidently intended to require consideration of matters beyond the bare question of whether there had been any departure from applicable rules of evidence or procedure. On that understanding of the section as a whole, the word "substantial", in the phrase "substantial miscarriage of justice", was more than mere ornamentation.

13. An appellate court’s task, when considering whether to apply the proviso, is to decide whether or not a “substantial miscarriage of justice has actually occurred”: Weiss at [35]-[36]. The court is not to perform that task by considering what a “hypothetical jury”, properly instructed, would or might have done. Nor is the test whether the error at trial deprived the accused of a “real chance of acquittal” or whether, even without the error, conviction was inevitable: Weiss at [32]-[33].

14. Rather, the court is to decide, for itself, whether despite the error at trial, no “substantial miscarriage of justice” has actually occurred. If no such miscarriage has occurred, the court may dismiss the appeal.

15. As Weiss held, “no single universally applicable description of what constitutes ‘no substantial miscarriage of justice’ can be given”: Weiss at [44]. However, the Court held “one negative proposition may safely be offered”:

[44]    It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.

16. It follows that it is a necessary condition, before applying the proviso, for the appeal court to be satisfied, on the whole of the record of trial, that the accused is guilty. This is “an objective task not materially different from other appellate tasks” and it is “to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction”: Weiss at [39]. As the majority in Cooper v The Queen (2012) 293 ALR 17; [2012] HCA 50 explained, the task is entrusted to each appeal judge personally:

[61]    The assessment demands a survey of the whole of the trial record. The task is to be carried out by each member of the appellate court personally. The relevant question to be asked is not whether the jury which returned the guilty verdict would have done so if there had been no error. Nor is it whether a reasonable jury would convict. Instead, the question for each member of the appellate court personally is whether that member thinks that the evidence properly received established the accused's guilt beyond reasonable doubt.

17. However, Weiss further acknowledged at [45] that there were some cases where, though the appellate court is convinced of the accused’s guilt, it would not be appropriate to apply the proviso, for example if there has been a “significant denial of procedural fairness”, or if there has been a misdirection so serious that it prevents the jury from performing its function (eg Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at [48], where the misdirection was a failure to instruct the jury their findings on alternative factual scenarios had to be unanimous).

18. In Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7, the High Court was invited to overrule or qualify Weiss. All seven judges of the High Court refused to overrule Weiss. The majority (Kiefel CJ, Bell, Keane and Gordon JJ) clarified Weiss’ analysis of the statute in the following way:

[12]    Consistently with the long tradition of the criminal law, any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the common form provision … The determination of whether, notwithstanding the error, there has been no substantial miscarriage of justice is committed to the appellate court. The appellate court's assessment does not turn on its estimate of the verdict that a hypothetical jury, whether "this jury" or a "reasonable jury", might have returned had the error not occurred. The concepts of a "lost chance of acquittal" and its converse the "inevitability of conviction" do not serve as tests because the appellate court is not predicting the outcome of a hypothetical error-free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had. (footnotes removed, emphasis added)

19. The majority confirmed that proof of the accused’s guilt, in the view of the members of the appellate court, is a necessary condition for engaging the proviso (that is a negative proposition) – but, in many cases, may also be a sufficient condition:

[13]    The influence of an error on the deliberations of a jury can never be known. The stipulation of the negative proposition as a condition of the engagement of the proviso recognises that the conviction of a person whose guilt has not been proved, beyond reasonable doubt, on admissible evidence, will always be a substantial miscarriage of justice. On the other hand, the appellate court's satisfaction that guilt has been proved to the criminal standard on the admissible evidence will in many instances support the conclusion that there has been no substantial miscarriage of justice notwithstanding a wrong decision on a question of law … or a miscarriage of justice … This is to recognise and give effect to the evident purpose of the enactment of the proviso to do away with the formalism of the Exchequer rule. (footnotes removed, emphasis added).

20. The majority in Kalbasi stressed the importance of considering “the nature and effect of the error in every case”: at [15]. That was because some errors may prevent the appeal court from assessing guilt for itself:

[15]    … some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury’s consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of “process” and “outcome” may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter.

21. For example, in Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, the High Court refused to apply the proviso because the error at trial (admitting certain irrelevant evidence) may have affected the jury’s assessment of a complainant’s credibility, which was central to the Crown’s case. The appeal court was not in a position to assess the complainant’s credibility for itself and therefore could not be satisfied of the accused’s guilt.

22. In Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, Gageler J, who did not form part of the majority in Kalbasi, explained that his judgment in that case reflected his difficulty in squaring “the common law understanding of the jury as the constitutional tribunal for the determination of criminal guilt” with Weiss’ “refram[ing]” of the proviso around the appeal court’s own assessment of the accused’s guilt: Hofer at [84], [85]. In Hofer, Gageler J acknowledged that Weiss had at no point been reopened and that there was no application to reopen it in that case. His Honour concluded he was compelled to follow Weiss: Hofer at [97]. The effect of Weiss, Gageler J said, was:

[93]    Where, “making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record”, the court is persuaded to the conclusion that the evidence properly admitted at trial established guilt beyond reasonable doubt, the court must give effect to “its own independent assessment” …..

[94]    If the appellate court’s assessment is to be truly independent, then the mere circumstance that there is a real possibility that the trial jury might have made a different assessment had the trial jury performed the appellate function cannot be allowed to divert the appellate court from forming and giving effect to its own conclusion of guilt. That is where the logic of Weiss leads.

23. In Hofer, the majority reaffirmed Weiss and its interpretation in Kalbasi. The approach, the majority found, was not to predict the outcome of a hypothetical error-free trial, but to decide whether “notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had”: at [59]. This was a “necessary (albeit not necessarily sufficient)” condition of applying the proviso: at [54]. By this language (“not necessarily sufficient”), the majority appeared to recognise that, in some cases, satisfaction of the accused’s guilt can be a sufficient condition for applying the proviso. That was the Court’s conclusion in Kalbasi at [13].

24. The majority also acknowledged that, as Weiss held, a serious “failure of process” may sometimes prevent application of the proviso, even where the appeal court is satisfied of the accused’s guilt. However, the failures of process contemplated by Weiss were “errors or miscarriages of justice … [that] may amount to such a serious breach of the presuppositions of the trial”: Hofer at [72], citing Weiss at [46].

25. The High Court’s most recent consideration of the proviso was in Orreal. There, Kiefel CJ and Keane J reiterated the requirement that “an appellate court must be persuaded that evidence properly admitted at trial establishes guilt to the requisite standard before it can conclude that no substantial miscarriage of justice has actually occurred”: Orreal at [20]. Their Honours also explained that it was important to consider the “nature and effect of the error which gives rise to the miscarriage of justice”, because some errors (for example those that involve issues of contested credibility) might prevent the appellate court from effectively assessing the evidence. At [41], Gordon, Steward and Gleeson JJ stated the law in similar terms, and encouraged appellate courts to heed the “natural limitations” on their ability to assess aspects of the evidence at trial, for example the credibility of witnesses, citing Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.

Application of the proviso in this case

26. There is no single universally applicable description of what constitutes a substantial miscarriage of justice. I am satisfied, beyond reasonable doubt on the whole of the record, that the applicant was proved guilty of the murder of Lynette Dawson. I have paid close regard to the nature and effect of the errors established here in grounds 2 and 3, namely the primary judge’s failure to distinguish clearly between the five lies relied upon by the Crown as providing evidence of consciousness of guilt (Edwards lies) and the other lies proven in the evidence. Like Adamson JA, I have considered the whole of the evidence on the basis that no Edwards lies were proven or relied on by the Crown. This is not a case where the errors made prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. I am satisfied on all the evidence that the applicant is guilty beyond reasonable doubt.

27. It is not in contest that Lynette Dawson is dead. The question is whether the Crown proved beyond reasonable doubt that the applicant murdered her on the evening of 8 January 1982 or the morning of 9 January 1982. The applicant was the last person to see the deceased alive and had a strong motive and opportunity to kill her. Shortly put, I am persuaded beyond reasonable doubt of the applicant’s guilt by what the Crown called the “eleven pillars” of its circumstantial case.

26. I will not attempt to summarise all of the circumstances that I regard as important and agree with Adamson JA’s detailed summary of the evidence. The Crown’s circumstantial case was compelling. In reaching the conclusion that the applicant is guilty of murder I find that:

1. On all of the evidence, there is no possibility that Lynette Dawson voluntarily left her children on the morning of January 9 without speaking to members of her family, particularly her mother. Lynette Dawson would not have ceased her relationship or communication with her parents and siblings voluntarily. She would not have left her children, even for a few days, without telling her mother.

2. Lynette Dawson’s possessions, including her engagement ring, contact lenses and clothes, remained at the marital home after the events of 8/9 January 1982.

3. The evidence about the nature of the applicant’s relationship with JC showed a degree of desperation and obsession on the part of the applicant. The applicant was controlling of JC, who was a teenager. The applicant was prepared to take increasing risks to preserve his relationship with JC in the face of her increasing resistance.

4. Prior to 9 January 1982, the applicant was conducting his relationship with JC demonstrating an intention that it become a public, permanent, long-term partnership, including proposals of marriage, references to their future together and attending her school formal as her date. As Adamson JA explains at [227]-[252], the failure of the applicant’s Queensland trip with JC, the intervention of Lynette Dawson causing JC to leave the marital home and JC’s holiday at South West Rocks with family and peers her own age posed a real risk to the applicant’s continuing relationship with JC.

5. The evidence concerning 8 and 9 January 1982 (while JC was away at South West Rocks) which included a marriage counselling session between the applicant and the deceased on 8 January 1982.

6. On about 10 January 1982, in the last of JC’s calls to the applicant from South West Rocks, the applicant told JC that, “Lyn’s gone. She’s not coming back. Come back to Sydney [from South West Rocks] and help me look after the children and be with me”, see Adamson JA at [274].

7. The applicant drove all night on 10 January and collected JC from South West Rocks shortly after dawn on 11 January 1982. The applicant installed JC in the marital bed from the very first night of their return. As set out by Adamson JA at [286], the applicant told JC that she could take what she wanted from Lynette Dawson’s jewellery and clothes.

8. As explained by Adamson JA at [294], the applicant told the portrait artist retained to draw the Dawson children that Lynette Dawson no longer wanted the artworks.

9. Ms Dawson never contacted any of her friends or family after her telephone conversation with her mother on the night of 8 January where Ms Dawson was tipsy, a drink having been prepared for her by the applicant, and she told her mother that she and the applicant “were going for a 5 day laze on the beaches, seeing the children were going away”, see Adamson JA at [260]-[261].

10. Lynette Dawson did not turn up for work on 11 January and did not contact her employers at Warriewood Children’s Centre, where she had many friends. She never collected her pay from the Centre.

11. The evidence and the timing of the arrangements which the applicant made to leave his wife and to take up permanently with JC being:

1. moving JC into his house initially (in October 1981), then to his brother’s, a few doors down (when his wife objected);

2. a planned lease of a flat at North Manly where he could live with JC;

3. preparations for sale of the matrimonial home (by signing a sale agreement on 21 December 1981); and

4. the failed trip to Queensland with JC to start a new life with her two days before Christmas 1981.

12. The abundant evidence that immediately after 9 January 1982 the applicant conducted himself in a manner which was completely irreconcilable with any purported belief that the deceased might return to the marital home.

29. Based on all of the evidence I reject the applicant’s account of him receiving a telephone call from Lynette Dawson on 9 January at the Northbridge Baths or receiving further telephone calls from her in the days immediately afterwards. I agree with what Adamson JA has said about the evidence of Bankcard receipts and other alleged sightings of Lynette Dawson. There is no reasonable hypothesis consistent with the applicant’s innocence.

Orders

30. I agree with the orders proposed by Adamson JA.

31. ADAMSON JA: On 3 April 2020, Christopher Dawson (the applicant) was arraigned in the Supreme Court on an indictment that charged one count of murder contrary to s 18 of the Crimes Act 1900 (NSW) for the murder of his wife, Lynette Dawson.

32. Following his unsuccessful application for a permanent stay, the applicant applied for a trial by judge alone pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW), which was granted on 2 May 2022: R v Dawson [2022] NSWSC 552.

33. The applicant’s trial before Harrison J (the trial judge) commenced on 9 May 2022. On 30 August 2022, the trial judge found the applicant guilty of murder and he was taken into custody: R v Dawson [2022] NSWSC 1131 (the verdict judgment). Except where otherwise indicated, all paragraph references are to the verdict judgment. In these reasons, Ms Dawson will be referred to as the deceased as the applicant accepts that it was open to the trial judge to be satisfied beyond reasonable doubt that she was dead by the time of the trial.

34. On 2 December 2022, the trial judge imposed a sentence of imprisonment for the conviction for murder of 24 years commencing on 30 August 2022 and expiring on 29 August 2046 with a non-parole period of 18 years expiring on 29 August 2040: R v Dawson [2023] NSWSC 1632. The applicant does not seek leave to appeal against his sentence.

35. The applicant seeks leave to appeal against his conviction. Leave is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on each of the grounds as none involves a question of law alone.

36. The proposed grounds of appeal are:

1. His Honour erred in failing to find that the applicant suffered a significant forensic disadvantage for the purposes of s 165B of the Evidence Act [1995 (NSW)], and to take that disadvantage into account when considering the evidence.

2.   His Honour erred in acting upon alleged lies to support an inference of consciousness of guilt that were not relied upon this way by the Crown.

3.   His Honour’s reasons as to why the alleged lies he acted upon supported a consciousness of guilt were inadequate.

4.   The verdict is unreasonable and unable to be supported by the evidence; either because

(i)   The evidence relied upon to disprove that the deceased was alive on the afternoon of 9 January 1982 and afterwards, which the Crown accepted was an indispensable intermediate fact, was inadequate to support such proof; and/or

(ii)   On the whole of the evidence it was not open to his Honour to be satisfied beyond reasonable doubt of the applicant’s guilt.

37. Leave was granted at the hearing of the appeal to add the following further ground:

5.   A miscarriage of justice was caused by his Honour:

(i)   finding beyond reasonable doubt that the applicant did not receive a telephone call from the deceased at the Northbridge Baths on 9 January 1982; and/or

(ii)   finding as an indispensable intermediate fact that the deceased was dead by the afternoon of 9 January 1982.

Relevant statutory provisions

38. Section 165B of the Evidence Act 1995 (NSW) (which is relevant to ground 1) provides:

“165B   Delay in prosecution

(1)     This section applies in a criminal proceeding in which there is a jury.

(2)     If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(3)     The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4)     It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5)     The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6)     For the purposes of this section—

(a)     delay includes delay between the alleged offence and its being reported, and

(b)     significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

(7)     For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following—

(a)     the fact that any potential witnesses have died or are not able to be located,

(b)     the fact that any potential evidence has been lost or is otherwise unavailable.”

39. Section 133 of the Criminal Procedure Act provides:

“133   Verdict of single Judge

(1)   A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2)   A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3)   If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

40. Section 6(1) of the Criminal Appeal Act provides:

“6   Determination of appeals in ordinary cases

(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

(Emphasis added to indicate the words which will be referred to in these reasons as “the proviso”.)

41. The Crown relies on the proviso in respect of grounds 1, 2 and 3: that is, it contends that if the Court is satisfied that any of those grounds are made out, it nevertheless ought dismiss the appeal on the basis that it considers that there has been no substantial miscarriage of justice.

Conclusion

42. For the reasons which follow, I am satisfied that only grounds 2 and 3 have been made out. As I also consider that there has been no substantial miscarriage of justice, I would apply the proviso and dismiss the appeal.

The Crown case

43. The Crown case can be briefly summarised at the outset, although more detail is necessary later in these reasons having regard to ground 4(ii), which will require a consideration of all of the evidence, save that which was not accepted by the trial judge.

44. The Crown case, which was wholly circumstantial, was that the applicant intended to kill, and, late on 8 January 1982 or before noon on 9 January 1982, in fact killed, the deceased, who was a devoted wife to the applicant and a devoted mother to their two daughters who were then aged four (XD) and two (YD). It was the Crown case that the applicant was motivated to kill the deceased because of his desire to pursue his relationship with JC, a much younger female who was then 17 years old, and install her in his household in place of the deceased.

45. The Crown case that the applicant had killed the deceased (and that the alternative hypothesis consistent with innocence that she had voluntarily left her home had been excluded beyond reasonable doubt) was based on the following eleven “pillars” which were identified by the Crown in this Court as follows (taken almost verbatim from the transcript):

1.    The evidence suggesting that after 8 January 1982 the deceased never spoke to anyone or was seen by any person, apart from the applicant, whose account should be set aside as not credible.

2.    The weight of evidence suggesting that it was inherently unlikely that the deceased, in particular, having regard to her personal characteristics, would have voluntarily abandoned the husband that she idolised and the children she adored, particularly having regard to the compelling body of evidence of her devotion to her daughters.

3.    The evidence suggesting that the deceased would not have ceased her relationship or communication with her parents and siblings voluntarily.

4.    The evidence suggesting that even prior to 9 January 1982, the applicant was conducting his relationship with JC in a manner which suggested his intention that it become a public, permanent, long-term partnership, including proposals of marriage, references to their future together and attending her school formal as her date.

5.    The evidence about the deceased’s unwavering commitment to her marriage even in the face of its deterioration toward the end of 1981 due to the applicant’s conduct; her stoicism despite the less than ideal circumstances; her devotion to “her Chrissy”, as she referred to the applicant; and her attempt to restore the marriage through counselling despite his having been unfaithful and temporarily leaving the home.

6.    The evidence about the nature and atmosphere of the applicant’s relationship with JC, which was marked by a degree of desperation and obsession on the part of the applicant, who was controlling and exerted significant pressure on JC and others and was prepared to take increasing risks to preserve his connection and sexual intimacy with JC in the face of her resistance.

7.    The evidence and the timing of the arrangements which the applicant made to free himself from his wife, to leave her and to take up permanently with JC which included moving her into his house initially (in October 1981), then to his brother’s, a few doors down (when the deceased objected). He also planned to lease a flat at North Manly where he could live with JC, made preparations to sell the matrimonial home (by signing a sale agreement on 21 December 1981) and set off for Queensland with JC to start a new life with her two days before Christmas 1981.

8.    The failure of the trip to Queensland due to JC’s immediate homesickness and the physical manifestations thereof; JC’s desire to leave the relationship on their return; and her departure for South West Rocks to spend time with her father, two of her sisters and her friends meant that the applicant was at great risk of losing JC and his hold on her.

9.    The evidence concerning 8 and 9 January 1982 (while JC was away at South West Rocks) which included a marriage counselling session between the applicant and the deceased on 8 January 1982; the fact that the applicant was the last person to see the deceased alive and had both the opportunity and motive to kill her; and the evidence of what happened at the Northbridge Baths on 9 January 1982.

10.    The evidence that immediately after 9 January 1982 the applicant conducted himself in a manner which was completely irreconcilable with any purported belief that the deceased might be alive or return home. He collected JC from South West Rocks on 11 January 1982, and on their return to Sydney he immediately began cohabiting with JC and shared the matrimonial bed with her. The deceased’s clothing and jewellery (including her engagement rings) as well as her contact lenses were in the bedroom.

11.    The proof of life investigations conducted at various stages and searches under the missing persons investigation, the searches under the Mayger investigation, the Loone investigation and the Poole investigation as they unfolded.

The applicant’s case

46. The applicant’s case at trial was that the deceased was alive at about 3pm on 9 January 1982, having left the home in Bayview where she lived with the applicant and their two children (the Bayview house) because of her distress about the state of her marriage and her need to have time to herself. The applicant contended at trial and in this Court that the Crown had not excluded this hypothesis consistent with innocence beyond reasonable doubt.

47. On appeal, the applicant submitted that the verdict was unreasonable (and he was, accordingly, entitled to an acquittal) as the Crown had not excluded the reasonable hypothesis that the deceased was still alive after noon on 9 January 1982. Ms Rigg SC, who appeared with Ms Wasley for the applicant in this Court, accepted that the trial judge had rejected the evidence of several of the sightings of the deceased on which the applicant had relied at trial, but relied on the following in support of the hypothesis consistent with the applicant’s innocence:

1. the alleged sighting of the deceased by Sue Butlin in April 1982; and

2. the applicant’s statements that:

1. the deceased had called him at the Northbridge Baths on 9 January 1982 (the Northbridge Baths phone call) and had also called him on 10 and 15 January 1982; and

2. the deceased had engaged in bankcard transactions on Tuesday 12 January 1982 (at Katies, Warriewood Square) and 26 (or 27) January 1982 (at Just Jeans, Warriewood Square).

The trial

48. The evidence adduced at the trial, in so far as it is relevant to the appeal, will be summarised in the consideration of ground 4(ii).

The Crown’s opening submissions

49. The Crown’s opening submissions reflected the eleven matters referred to above and made no reference to any alleged lies on the part of the applicant. Accordingly, no reference was made to the possibility that any lie on the part of the applicant amounted to a consciousness of guilt.

The Crown’s closing submissions

50. The Crown referred to the evidence which established the eleven pillars with which it had opened its case.

51. In closing address, the Crown also submitted that the applicant had lied on several occasions, as evidenced by alleged inconsistencies and significant omissions in his versions. The Crown relied on these alleged lies to impugn the applicant’s credibility and to establish that his versions, in so far as they were consistent with innocence, could not possibly be true.

52. In particular, in order to prove beyond reasonable doubt that the deceased had died on or about 8 January 1982, the Crown was required to establish that it was not reasonably possible that the applicant’s account that the deceased phoned him at the Northbridge Baths on 9 January 1982 and on subsequent occasions was true. This hypothesis consistent with innocence will be considered in the context of grounds 4 and 5.

53. After closing submissions, the Crown raised the question whether the trial judge ought give himself a direction under s 165B(2) of the Evidence Act but did not accept that the applicant had necessarily established that he had suffered significant forensic disadvantage.

The defence opening submissions

54. The applicant’s trial counsel, Ms David, opened, in part, as follows:

“Your Honour, it is important in the defence case that the relationship [with JC] became known to Lynette Dawson and that, for other reasons, this caused her to disappear. It is not in issue that the accused and JC formed a relationship, it resulted in their marriage, and that they separated as indicated in 1990.

In addition to the evidence referred to above, there have been a number of important sightings. I won't raise them all, but there are a number and they date from a period around April to July 1982 where Mrs Dawson was seen around near the Gladesville Hospital. There was a further sighting on 28 March 1983 by a person who knew her well. There were further sightings in June and July 1984 by a previous neighbour. Again, none of these people aligned to Mr Dawson or at his instigation. There were other sightings, your Honour, that appear, possible sightings, some of which were not followed up.

It is those factors and other factors that the defence say indicate that it is possible that Lynette Dawson was alive after 8 and 9 January 1982.”

(Emphasis added.)

The defence closing submissions

55. In closing submissions, Ms David submitted that the trial judge should give himself a forensic disadvantage direction under s 165B of the Evidence Act. She referred to delay in a discursive fashion throughout her closing address which began on 5 July 2022, continued until 8 July and concluded on 11 July 2022. Her complaint about delay was largely associated with criticisms of the police investigation.

56. On 5 July 2022, Ms David identified as matters warranting a s 165B direction the applicant’s version that he had received a phone call from the deceased while he was at the Northbridge Baths on the afternoon of 9 January 1982 and that he had seen the deceased’s bankcard statements which recorded transactions on 12 and 26 or 27 January 1982 at shops at Warriewood Square. Ms David also referred to the phone calls from JC to the Bayview house (while she was away at South West Rocks). Ms David submitted that the applicant had been forensically disadvantaged by the delay which meant that the records of these alleged phone calls and bankcard transactions were no longer available.

57. When asked by the trial judge to address the circumstance that the deceased did not call anyone other than the applicant on or after 9 January 1982 (and the only evidence that she had called him came from the applicant’s statements), Ms David responded:

“It was the difficulty, we say, in the relationship which caused her to abandon the home. If Lynette Dawson had made a decision to abandon the home and her family, it is not a decision that is done in half measures in the sense that she telephoned her husband. It would be normal, given that he is also there with her children, that she would communicate with the person with whom she lived and was in a relationship, but not necessarily communicate with anybody else. Because if you made that painful decision to leave, it doesn't make any sense that she would then have relationships or telephone communication with other persons in her family because it would be impossible, for example, if she continued to communicate with Helena Simms but not see her children.

I mean, if she has made the decision to abandon her home, the defence say she is not going to communicate with other people because it is inconsistent with that abandonment. It would be impossible, for example, for her to have contacted Helena Simms and expect Helena Simms to not communicate or to endeavour to entice her back or to communicate with the children or to have a relationship which excluded for example - well, the example of Lynelle Dawson, that she gave. You can't really abandon and start a new life but still hold onto some threads of it. That's not abandoning and creating a new life.

We say there is nothing to be drawn from the fact that she did not contact other people at that time.”

58. Defence counsel also submitted that the deceased may simply, on the evening of 8 January 1982, have concluded that the marriage was not going to work because she had been so badly treated by the applicant.

59. In a document entitled “Proposed Directions” dated 11 July 2022 (and handed to the trial judge on that day) (Proposed Directions) the applicant submitted that he suffered a forensic disadvantage on the basis of the following:

1. difficulties obtaining evidence about the Queensland trip (which was relevant to the evidence of Robert Silkman regarding the hiring of a hitman, which is no longer relevant as the trial judge did not accept the evidence as to this matter);

2. the fact that JC first made allegations that the applicant had tried to hire a hitman in 1990, which deprived the applicant of the opportunity to identify the subject premises in western Sydney where JC said that he had taken her after school for that purpose or to challenge JC’s account by reference to inconsistencies;

3. the applicant’s inability to obtain records from the marriage counsellor whom he and the deceased had seen who:

1. could have corroborated the evidence of Sue Strath that the deceased had been happy following the counselling session; and

2. may have assisted in illuminating the cause of bruising observed on the deceased’s neck;

4. the bankcard statements which were said to record transactions on 12 January 1982 and 26 (or 27) January 1982 at Katies and Just Jeans (but for the delay, the applicant submitted that “more positive evidence of the transactions may have been obtained”);

5. the applicant’s inability to obtain records to confirm that he worked at and attended Northbridge Baths on 9 January 1982 with Helena Simms, Phillip Day, XD and YD, and the absence from the police investigation of interviews with the staff members who worked there on that day;

6. the applicant’s inability to obtain telephone records to corroborate his alleged receipt of a Subscriber Trunk Dialling (STD) call from the deceased at the Northbridge Baths on 9 January 1982 or the timing and receipt of calls from JC (while she was at South West Rocks) to the phone at the Bayview house; and

7. failures in the police investigation and the loss of the file of the investigation conducted by Detective Sergeant Paul Mayger and Detective Sergeant Geoffrey Wright in 1990 (the Mayger/Wright investigation) which the applicant contended “would have” contained critical documentary evidence and witness statements.

60. The direction sought by the applicant was in the following terms ([25] of the Proposed Directions):

“It is submitted Your Honour would need to give to yourself a forensic disadvantage direction which would include the following:

-   Because of the passage of time, the evidence of many Crown witnesses cannot be adequately tested

-   That Your Honour would need to scrutinise the evidence with great care;

-   That such scrutiny should take into account circumstances which have a logical bearing on the truth and accuracy of the Prosecution’s evidence; and

-   That at every stage of carrying out the scrutiny of the Prosecution evidence, Your Honour should take serious account of the warning as to the dangers of conviction.”

The alleged lies relied on by the Crown as implied admissions on the basis that the applicant evinced a consciousness of guilt

61. After closing submissions had been made by each party, the trial judge asked counsel whether there were any further matters which they wanted to raise before he reserved his decision and adjourned the court. The Crown raised the issue of a direction concerning lies as a consciousness of guilt and proceeded to identify the following five matters which it submitted were lies (either positive statements or omissions) which evinced a consciousness of guilt on behalf of the applicant:

1. the absence of any reference in the applicant’s report dated 18 February 1982 to the Missing Persons Unit (Exhibit BU) under the subheading “circumstances of disappearance”, to the damage to his marriage caused by the applicant’s relationship with JC;

2. the applicant’s statement in his Antecedent Report dated 17 August 1982 to the Missing Persons Unit (the Antecedent Report), that he had travelled north “to be by myself” and the absence of any reference to JC;

3. the statement in the Antecedent Report that “all girlfriends [of the deceased] have been contacted” in circumstances where the only “girlfriend” who had been contacted was Robyn Warren (reference was also made to answers 71–79 of Exhibit AA, the applicant’s Electronically Recorded Interview of a Suspected Person on 15 January 1991) (the ERISP);

4. the applicant’s answers 10-12 in the ERISP that in 1985 at a Sydney Boys High School reunion, he had been told by Ian Kennedy that “he had heard a whisper that [the deceased] was in New Zealand”; and

5. the applicant’s answer 19 in the ERISP that after the applicant said that he had travelled to Queensland with a girl he was having an affair with, he was asked whether he stayed at his brother’s place when he returned to Sydney and he answered, “Um, my children were there with him. They were, I got back by memory I went to my place. My place is just up the road from his, but it’s one of those instances where we were with each other all the time anyway, but.”.

(These will be referred to as COG (1)-(5) although they were not referred to in the trial in that way.)

62. In respect of COG (1) and COG (2), the Crown relied on R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455 at [260]-[262] in support of the proposition that an omission may amount to a consciousness of guilt.

63. After the Crown identified these five matters, counsel for the applicant addressed the trial judge about further directions which it contended his Honour should give to himself but did not seek to be heard against the Crown’s reliance on COG (1)-(5).

64. The Crown’s reliance on these five matters is relevant to grounds 2 and 3 where it is alleged by the applicant that the trial judge went beyond those five matters when determining whether there was a consciousness of guilt and failed to provide adequate reasons why, if at all, he was satisfied that each of COG (1)-(5) was a lie which evinced a consciousness of guilt.

The verdict judgment

65. The structure of the verdict judgment was relied on to support grounds 2 and 3 (relating to consciousness of guilt) and grounds 4(i) and 5 (relating to the trial judge’s finding that it was not reasonably possible that the deceased had phoned the applicant at the Northbridge Baths on the afternoon of 9 January 1982).

66. The structure of the verdict judgment is indicated by the headings used by the trial judge, which are reproduced in the table below:

JUDGMENT

[1]-[17]

Background

Comment

[2]-[10]

[11]-[17]

WAS LYNETTE DAWSON ALIVE AFTER 8 JANUARY 1982?

[18]-[151]

Mr Dawson’s telephone calls with Lynette Dawson

The Northbridge Baths ([23]-[41]); Later telephone calls ([42]-[63])

The bankcard references

The sightings

Ray Butlin and Sue Butlin ([77]-[86]); Ross Hutcheon and Lynette Hutcheon ([87]-[109]); Elva McBay ([110]-[113]); Peter Breese and Jill Breese ([114]-[129]); Mr Dawson's 22 August 2010 email ([130]-[132]); Narraweena, Beacon Hill, Terrigal ([133]-[135]); Paul Cooper ([136]-[144])

Conclusion

Reliability of identification evidence

[22]-[63]

[64]-[75]

[76]-[144]

[145]-[147]

[148]-[151]

IS LYNETTE DAWSON DEAD: PROOF OF LIFE INQUIRIES

[152]-[155]

JC

[156]-[233]

Assessment

[227]-[233]

HYPOTHESIS CONSISTENT WITH INNOCENCE

[234]-[330]

Circumstantial case direction

Crown case: Lynette Dawson did not abandon her home

Lynette Dawson’s daughters ([265]-[283]); Friends and family ([284]); Clothing and personal effects ([285]-[289]); Lynette Dawson’s commitment to her husband ([290]-[296]); Lack of financial independence ([297]-[301])

Mr Dawson’s response: Lynette Dawson left of her own accord

The marriage was over ([303]-[307]); Extreme unhappiness ([308]-[312]); Low self-esteem ([313]-[318]); Dark moods and violence ([319]-[320])

Conclusion

[241]-[245]

[246]-[301]

[302]-[320]

[321]-[330]

HOW DID LYNETTE DAWSON DIE?

[331]-[545]

Robert Silkman

Mr Dawson and JC

Cromer High School ([353]-[371]); PS ([372]-[383]); RH ([384]-[391])

The relationship develops ([392]-[399]); SOW ([400]-[403]); Mr Dawson’s “plans” ([404]); (1) The North Manly flat ([405]-[407]); (2) The “hitman” allegation ([408]-[417]); (3) Sale of 2 Gilwinga Drive ([418]-[419]); (4) A new life in Queensland ([420]-[421]); South West Rocks ([422]-[432]); 2 Gilwinga Drive ([433]-[440])

Consideration

Mr Dawson and Lynette Dawson

Anna Grantham ([449]-[454]); Annette Leary ([455]-[469]); Julie Andrew ([470]-[480]); Patricia Jenkins ([481]-[486]); Gregory Simms ([487]-[501]);Coral Clarke ([502]-[504]); KF ([505]-[506]); BM ([507]-[515]); Judith Solomon ([516]-[522]); Roslyn McLoughlin ([523]-[524]); Robyn Warren ([525]-[531])

Tendency evidence: a brief diversion

Consideration

[344]-[350]

[351]-[440]

[441]-[445]

[446]-[531]

[532]-[540]

[541]-[545]

GOOD CHARACTER

[546]-[551]

INCONSISTENT REPRESENTATIONS AND ACTIONS

[552]-[564]

LIES AS CONSCIOUSNESS OF GUILT

[565]-[631]

Consciousness of guilt: direction

[568]-[626]

Mr Dawson contacted Lynette Dawson’s girlfriends

[574]-[580]

Mr Dawson travelled north by himself

[581]-[587]

Missing Person’s Report

[588]-[591]

Family Law affidavit

[592]-[593]

Lynette Dawson seen in New Zealand

[594]-[596]

Hope of her return

[597]-[600]

$500

[601]

Phone calls

[602]-[604]

Exhibit AA

[605]-[626]

Note

[627]-[630]

Conclusions

[631]

DELAY IN PROSECUTION

[632]-[645]

THE POLICE INVESTIGATION

[646]-[660]

COMMENT

[661]

TEACHER’S PET PODCAST

[662]-[687]

EXHIBIT 35

[688]-[702]

EXHIBITS G AND AY – HEARSAY EVIDENCE DIRECTION

[703]-[706]

OTHER DIRECTIONS

[707]-[717]

MOTIVE

[718]-[725]

DISCERNMENT

[726]-[757]

VERDICT

[758]-[759]

The finding that it was not reasonably possible that the applicant received the Northbridge Baths phone call and that the applicant’s version to that effect was untrue

67. The trial judge began the narrative in general terms under the heading, “Background” ([2]-[10]). Under the heading, “Comment”, his Honour addressed the consequences of the Crown case being a circumstantial one as follows:

“13   Ordinarily, the time at which an offence is alleged to have been committed is an immaterial particular. In the present case, however, and putting aside for the moment evidence that suggests that Lynette Dawson was alive after 8 January 1982, proof by the Crown that Lynette Dawson died on or about 8 January 1982 is an indispensable link in the chain of reasoning upon which the Crown relies. The Crown must prove beyond reasonable doubt that Lynette Dawson’s date of death was on or about 8 January 1982, which description includes the early morning of the following day. If there exists a reasonable possibility that Lynette Dawson was alive after 8 January 1982, Mr Dawson is entitled to be acquitted of the charge of murder. As will shortly appear, this matter is considered first.

14   However, as with my consideration of every aspect of the evidence in this trial, it is important to bear in mind at all times that in a circumstantial case such as this, inferences that appear to arise from particular circumstances, both in support of the Crown case and in derogation of it, should only finally be assessed having regard to all of the other circumstances that are in evidence. The circumstantial nature of the evidence in this case makes it clear that it must be considered and assessed as a whole, and not in what the authorities regularly refer to as a piecemeal fashion. One of the consequences of that, for present purposes, is that particular circumstances sometimes require consideration in more than one context. Moreover, but in a related sense, evidence that appears to be unimportant when looked at in isolation may achieve significance when other matters come to light. The reverse is equally true. This will become apparent in the course of these reasons. …”

68. Immediately under the first bold heading, “WAS LYNETTE DAWSON ALIVE AFTER 8 JANUARY 1982”, the trial judge said at [18]:

“The Crown case is that Lynette Dawson was dead by no later than sometime on the morning of 9 January 1982. There is other evidence in three broad categories, any of which if accepted would establish that she was alive after that time. First, there are statements by Mr Dawson of him having spoken to Lynette Dawson by telephone both on 9 January 1982 and after that date. Secondly, there is evidence that Mr Dawson told others about Lynette Dawson using her bankcard to make purchases later that month. Thirdly, there is evidence of a series of people who claim they saw Lynette Dawson alive in 1982, 1983 and 1984 and possibly thereafter.”

69. At [19], the trial judge said of the evidence in these three categories:

“… in order properly to assess the utility of these individual pieces of evidence, they must be considered in at least two important ways. First, does the evidence stand up as credible and reliable when taken in isolation. Secondly, if the evidence stands up as credible and reliable when taken in isolation, what probative strength does it retain having regard to the wealth of other circumstantial evidence in this trial. …”

70. At [21], the trial judge said in part:

“… I propose in what follows to indicate my findings about the first way each piece of evidence should be considered. However, the significance of the evidence as a circumstance touching the ultimate issue of Mr Dawson’s guilt must finally be considered in the light of all of the evidence as a whole.”

71. The first sub-heading in this section, “Mr Dawson’s telephone calls with Lynette Dawson”, covers [22]-[63] and two sub-sub-headings, “The Northbridge Baths” ([23]-[41]) and “Later telephone calls” ([42]-[63]).

72. Under “The Northbridge Baths”, the trial judge set out, at [23], the applicant’s version in the ERISP and, at [24], an excerpt from the Antecedent Report. The evidence of Mr Day was extracted at [25] and [26]; an extract from Helena Simms’ diary was reproduced at [27]; the evidence of CB (an employee of Northbridge Baths) was summarised and extracted at [28]-[33]; the evidence of JM (another employee of Northbridge Baths) was extracted at [34]; and there was a further reference to the ERISP at [35].

73. At [36], the trial judge said:

“Having regard to this evidence I am unable to accept that the version of events at the Northbridge Baths suggesting Mr Dawson received an STD call from Lynette Dawson on the afternoon of 9 January 1982 could reasonably be true. I am satisfied beyond reasonable doubt that Mr Dawson’s various representations that he spoke to Lynette Dawson by telephone on a call made to the Northbridge Baths on that day is a lie. My reasons for forming that view are as follows.”

(Emphasis added to indicate the alleged error which is the subject of grounds 4(i) and 5, considered later in these reasons.)

The use of lies as a consciousness of guilt

74. The trial judge addressed the topic of lies as a consciousness of guilt at [565]-[631] under the heading “LIES AS CONSCIOUSNESS OF GUILT”. In prefatory remarks in [568]-[573], his Honour directed himself as to the conditions precedent for using a lie (or omission) as a consciousness of guilt in the terms of, but not referring to, Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 (Edwards) (Edwards direction). At [573], his Honour said:

“I have taken these principles into account as a mandatory guide in considering the matters that the Crown contends were lies told by Mr Dawson.”

75. From [574]-[626], the trial judge identified what were said to constitute such lies. The verdict judgment refers to the following lies under the sub-headings as follows:

Para in verdict judgment	Sub-heading	Substance	Whether relied on by Crown as consciousness of guilt *
[574]-[580]	Mr Dawson contacted Lynette Dawson’s girlfriends	In the Antecedent Report the applicant said that all of the deceased’s girlfriends had been contacted.	Yes, COG (3) above.
[581]-[587]	Mr Dawson travelled north by himself	“History – Lyn + I had been having marital problems for approx. 2 years, mainly over her Bankcard spending and financial matters in general. I left home for 3 days over Christmas + travelled north to be by myself. I returned home on Boxing Day, having missed my wife and daughters and hoping to resolve our differences.”	Partly: COG (2) above but problems about spending were not relied on by the Crown as a lie.
[588]-[591]	Missing person’s report	The applicant’s omission to mention that he was in a sexual relationship with JC when he reported the deceased as missing on 18 February 1982	Yes, COG (1) above.
[594]-[596]	Lynette Dawson seen in New Zealand	The applicant told police in 1991 that Ian Kennedy had told him that he had heard a whisper that she was in New Zealand.	Yes, COG (4) above.
[597]-[600]	Hope of her return	The applicant’s expressions of grief at the deceased’s disappearance and of hope that she would return, including the wording of the advertisement.	No.
[601]	$500	The applicant told the police that his wife was in possession of $500 when last seen.	No.
[602]-[604]	Phone calls	The statements the applicant made to police that he and the deceased had been in telephone contact after she was last seen.	No.
[605]-[626]	Exhibit AA	Various lies told by the applicant in his ERISP on 15 January 1991.	No, except where identified above.
[611]	Exhibit AA	Answer to Q 19 that on his return from Queensland with JC, he did not go to his brother Paul’s place but went home.	Yes, COG (5) above.

348. The applicant had already, in a real sense, done his worst: by purporting to leave permanently with JC on 23 December 1981. By this act, the applicant had forced the deceased to face the future as a single mother who had been abandoned by her husband. That the applicant had called on Christmas morning to say that he would be home the next day would not necessarily have lessened the shock, although it gave the deceased considerable hope of reconciliation (which she imparted immediately to her mother and later that day to Paul at the Dawson Christmas lunch). The deceased responded quickly and practically to arrange a marriage guidance counselling session to take place on 8 January 1982.

349. The deceased was in regular contact with her mother, by phone and in person, and had, since at least October 1981, chosen to take the children, including overnight, to her mother’s place, as well as her in-law’s home in Maroubra and place in Nowra, leaving the applicant at the Bayview house. Indeed, the deceased’s trips with the children led Marilyn to counsel her not to leave the applicant “unsupervised” in the Bayview house, in circumstances where it could be expected that he would take advantage of her absence to continue his sexual relationship with JC. JC’s evidence that the applicant had sex with her in his car, in the Bayview house and in Paul’s house was not seriously, much less successfully, challenged. While the deceased was generally apart from the children when she worked (three days a week at Warriewood Children’s Centre) and for particular commitments, she was otherwise so constantly in their company that Mr Downie, the next door neighbour in Bayview, was surprised to see her without them on the occasion when she came to the laundry door to see if Ms Andrew was home.

350. In light of all of this evidence, no credence can be given to the applicant’s version that the deceased rang him at the Northbridge Baths. The alleged Northbridge Baths phone call was relevantly uncorroborated since, even if there was in fact a call, it was only on the applicant’s say-so that the caller was the deceased. At that time, it was not reasonably possible that the deceased would leave the applicant, much less her two children, even for a few days. The suggestion that she would not contact her mother about a matter of such great importance (since she was the person to whom she had frequently resorted for child care arrangements in the past) is no more than fanciful. Further, the deceased was rostered to work on 11 January 1982 in a job she was good at and which she valued. It gave her a modicum of financial independence as well as social and professional contact with peers, some of whom became her friends and confidants.

351. The applicant had shown himself to be entirely without credibility, both by reference to direct lies and half-truths, of which there is a litany in the evidence and his versions. For example, he rang the deceased on Christmas morning to tell her that he would be coming “home” tomorrow when he was probably already at Paul and Marilyn’s place, intending to skip the Dawson family Christmas lunch and spend the day with JC in Paul and Marilyn’s bed. He specifically directed them not to disclose this fact to his parents or anyone else when they visited Maroubra for Christmas lunch.

352. The applicant told the deceased that he could not spend New Year’s Eve with her and the children because he was going on a yachting party, when in fact he went to Manly Point to spend time with JC in his car. When the deceased asked if she and the children could watch the boat from the shore, he said, “no”. On his return home on New Year’s Day, he told the deceased that he had been “sea sick all night” (presumably to add verisimilitude to his false claim that he had been sailing). The applicant’s parents drove the deceased and the two children to Helena’s place at Clovelly “for a few days”. By that stage, the applicant was terrified of losing JC who was about to set off for South West Rocks.

353. The applicant had told the Missing Persons Unit that he had gone up north “by himself” when he and JC had left together on 23 December 1981 to start their new life and referred to there being marital problems as a result of the deceased’s spending. His statement that he went north alone was a lie. His omission of any reference to JC as a reason for the “marital problems” (which he attributed to the deceased’s spending) was, on any view, dishonest. Further, the applicant fabricated the alleged statement from Ian Kennedy at the school reunion to suggest that the deceased might be living in New Zealand when Mr Kennedy told him no such thing.

354. There were also various inconsistencies revealed by a comparison between the ERISP and the other evidence. The applicant told the police that the deceased was “disturbed by the results of [the marriage counselling]” when the evidence of Ms Strath and her other colleagues at the Warriewood Children’s Centre was to the contrary. He mentioned that he had gone away “to try to clarify how [he] felt”, which was a glaring non-disclosure of his obsession with JC. He also referred to a man associated with a “religious sect” who had come to do work on a shed. There was no evidence whatsoever of this aside from the applicant’s word: had this been true, it could confidently be expected that the deceased would have mentioned it to her mother.

355. Ms Warren gave evidence that the applicant called her on 9 January 1982 before he had arrived at the Northbridge Baths to see whether the deceased was with her. What the applicant told Ms Warren was inconsistent with what he told police in the ERISP at A10 that he was expecting the deceased to come to the Northbridge Baths with her mother and that when her mother arrived without her, he wondered where the deceased was (who subsequently called the Baths to tell him that she was on the Central Coast). On the version in the ERISP, there was no reason for the applicant to be concerned or make enquiries about the deceased’s whereabouts before Helena arrived at the Northbridge Baths without the deceased.

356. I accept the Crown’s submission that the alleged call from the deceased was a contrivance by the applicant to explain the deceased’s absence and to achieve the outcome that Mr Day would drive Helena and the children back to Clovelly so that she could look after them that night.

357. The applicant’s statements to Helena Simms (which, in light of the evidence, must have been lies) about the deceased having called were the cruellest because they engendered false hope. He told her on Sunday 10 January 1982 that he had spoken to the deceased who had said that she would call her mother on Wednesday. Ms Simms noted in her diary on Wednesday 13 January 1982 that the deceased had not called.

358. The applicant’s statement to Ms Hardiman, “She's gone away and doesn't want them anymore” reflected the applicant’s certainty that the deceased was not coming back and would not want the portraits she commissioned of her dearly beloved children. He could only say this with such certainty because he had killed her. It also indicated that he did not want to engage in any discussion about the deceased.

359. Following the deceased’s alleged disappearance, the applicant’s non-disclosure of his continuing relationship with JC and the fact of their cohabitation was also dishonest. It would appear from Helena’s diaries that she only found out on 6 February 1982 that JC was living at the Bayview house when XD told Helena that JC was there. When Paul and Marilyn returned with their children from their break at Lake Munmorah, the applicant and JC greeted them at the front door of the Bayview house but did not, apparently, invite them in, as to do so would have disclosed their cohabitation shortly after the deceased’s disappearance. While the applicant may have been able to rely on his brother, Paul, to side with him, he may have feared that Marilyn would be less sympathetic.

360. None of these lies can be used as implied admissions since the Crown, on appeal, did not rely on them as such. However, they indicate the unreliability of the applicant’s versions. The Crown, through the evidence narrated above and for the reasons given below, has excluded beyond reasonable doubt the reasonable possibility that the applicant’s version that the deceased rang him at the Northbridge Baths on 9 January 1982.

361. From about the time the applicant identified JC, he became obsessed with her and wanted to possess and control her at all costs. At the outset, his obsession was satisfied by having sexual intercourse with her at his parents’ house at Maroubra and in his car on Friday nights at Manly Point, while fending off his school boy rivals by threatening PS and obstructing RH who had come to him for assistance.

362. By October 1981, the applicant’s ambitions had grown to a point where he installed JC in the Bayview house as the “babysitter” and drugged his wife with alcohol so that he could have sex with JC under the matrimonial roof. This arrangement was thwarted when the deceased’s parents observed JC with him in the Mona Vale Hospital on 5 November 1981 and were driven to the inevitable conclusion that they were sexually intimate. That night, JC, having been confronted with the truth by the deceased (albeit that the deceased had put it the wrong way around when she accused JC of taking liberties with the applicant), JC moved out, resorting to Paul and Marilyn’s home where she was permitted to remain until she had finished the HSC.

363. By 23 December 1981, JC’s tenure at Paul and Marilyn’s can be taken to have expired. Such was the applicant’s desperation to make JC his that he was prepared to leave the deceased, his children and the Bayview house and separate himself geographically from his brother Paul (to whom he was very close) and drive to Queensland to start a new life with JC. When that did not work out because of JC’s immediate homesickness and physical reaction to leaving her family, the circumstances forced him to return, once again imposing on Paul and Marilyn by occupying their bed on Christmas Day, putting them in the awkward position of having to spend the day with the Dawson family, pretending that the applicant and JC were not where they knew them to be.

364. The ultimate blow was struck on Boxing Day when JC told the applicant that she wanted to end the relationship and went to stay with one of her sisters at Neutral Bay. Her decision made it plain to the applicant that what he was in a position to offer her at that time – continued sexual intimacy with a married man who was living with his wife and two children – was, despite her vulnerability and need for support, unacceptable. The applicant did not give up. In the week or so before her departure for South West Rocks, the applicant maintained the pressure on JC by phoning and visiting her every day.

365. In early January 1982, JC went to South West Rocks to stay in a caravan owned by her father. This gave her the opportunity to spend time with two of her sisters and several friends who were her contemporaries. Her departure rendered the applicant’s position particularly precarious and put him at grave risk of losing her. There was a real prospect that, in that environment, JC would be able to arrange for somewhere to live in Sydney (which did not involve the applicant); enrol in a course which would take her away from the Bayview area and put her into a new cohort; or form an attachment to a male who was, unlike the applicant, around her age and not married with children. Any one of these possibilities could have put JC well beyond the applicant’s reach and influence. The applicant’s hold over JC when she was at South West Rocks depended on her compliance with his instruction that she call him daily: his capacity to control her actions and interactions and quarantine her from her male contemporaries was significantly less than it had been when he intimidated PS in the Coles carpark or intervened to prevent RH asking her out.

366. Apart from the few days from Boxing Day 1981 until her departure for South West Rocks in the new year which JC had spent with her sister at Neutral Bay, JC’s accommodation had been, since October 1981 when she moved into the Bayview house, dependent on, and effectively controlled by, the applicant. Having been evicted from the Bayview house by the deceased in early November 1981, JC would not have returned while the deceased was still living there. She did not feel that she could go back to her mother’s house because of her step-father. At the age of 17, she was homeless and without means of support, as the applicant well knew.

367. The only way the applicant could offer JC a roof over her head and apparently permanent security was to remove the deceased from his life. As the deceased was intent on staying with him and the children, and retaining close connections with his side of the family (no matter how badly he treated her), killing the deceased on 8 January 1982 or early on 9 January 1982 was the only way in which the applicant could get what he wanted before JC made other arrangements for her adult life and it was too late.

368. When JC phoned him from South West Rocks on 9 or 10 January 1982, he made the best offer of which he was capable, which was designed to apply the maximum pressure on JC to take him back: he asked her to come and live with him and help him care for his children because the deceased had gone and was not coming back, and promised to drive to South West Rocks to collect her. He knew that the deceased was not coming back because he had seen to it by killing her.

369. When the applicant arrived at South West Rocks to retrieve JC, her quandary which manifested itself in her posture (which was hunched up, as if her body had collapsed) was obvious to her friends, who pleaded with her not to go. Her feeling of obligation and the sense that she had no choice make plain her emotional vulnerability and financial predicament. The hold which the applicant had over her defeated her ultimately fruitless attempts to distance herself from him. His offer entailed an apparent guarantee of security: if the deceased had gone and was not coming back, JC would, at last, have a home with someone whom she had been led to believe loved her and would look after her.

370. What the applicant told JC in order to induce her to live in the Bayview house – that the deceased was not coming back – was true. Because he had killed the deceased, he knew that she was not coming back and that therefore there was no risk associated with installing JC in the main bedroom and inviting her to wear the deceased’s clothes and jewellery. Thus, on their return to Sydney, there was, as the applicant perceived it, no impediment to JC sleeping in the matrimonial bed, which is what occurred from the first night. Although JC had been told that the deceased was not coming back, she soon longed for the deceased to return so that she would be relieved of the responsibility of looking after XD and YD.

371. The situation which the applicant had represented to JC stood in stark contrast to the lies he told and was telling the deceased’s mother, Mr Day, Ms Warren and the staff at the Missing Persons Unit – that the deceased wanted some time alone, that she had called and would call and that she was sorting herself out. The juxtaposition between what he told JC and what he told everyone else demonstrated, in light of all of the other evidence, including the lack of corroboration of his statements, that his statements about being contacted by the deceased were lies which could not reasonably possibly be true. That the deceased’s family and friends believed his lies for so long is testament not only to the applicant’s capacity for duplicity but also to their forlorn and misplaced hope that the deceased was alive and would return.

372. Indeed, it was only when JC spoke with Greg Simms and learned of the difference between what the applicant had told her and what he had told the deceased’s family and the police, that JC felt obliged to go to the police. It would appear, having regard to the lengthy delay before the applicant was charged with murder that the investigating police did not necessarily appreciate the import and veracity of her statement. However, this Court is to determine the grounds by reference to all of the evidence adduced at trial which, as I have said above, constituted an overwhelming circumstantial case.

373. I have considered the character evidence adduced in respect of the applicant. On the findings of the trial judge, there was no evidence that the applicant had ever inflicted violence on anyone (apart from when he was playing rugby league and rugby union, each of which is inherently physically combative). However, the evidence of PS established that he had threatened PS with violence to deter him from asking JC out and Ms Andrew’s evidence of the trampoline incident established that he had acted in an overbearing and intimidating way towards the deceased.

374. Having reviewed all of the evidence, I am not persuaded that the verdict of guilty of murder was unreasonable. None of the arguments advanced on behalf of the applicant by Ms Rigg causes me to doubt the applicant’s guilt of murder. Ground 4(ii) has not been made out.

Grounds 4(i) and 5(i) and (ii)

377. These grounds can be addressed together. Grounds 5(i) and (ii) were added in order to permit Ms Rigg to submit that the trial judge’s alleged erroneous findings amounted to a miscarriage of justice (as alleged in grounds 5(i) and (ii)) as well as an unreasonable verdict (as alleged in ground 4(i)). She relied on EE v R [2023] NSWCCA 188 (EE) in which this Court (Beech-Jones CJ at CL, myself and Ierace J agreeing) said at [41] that if, in a trial by judge alone, the trial judge used illogical or clearly mistaken reasoning to decide an important question of fact, that could amount to a miscarriage of justice that would result in a retrial.

378. At the outset it is important to confirm that Ms Rigg accepted that although the trial judge categorised the Crown’s obligation to negative the applicant’s version that the deceased had phoned the applicant at the Northbridge Baths on 9 January 1982 as an “indispensable intermediate fact”, this was not necessarily a correct characterisation. It was common ground that, in order to prove the applicant’s guilt of the charge of murder beyond reasonable doubt, the Crown had to prove beyond reasonable doubt that the deceased had not phoned the applicant on the afternoon of 9 January 1982 (since if she had she must have been alive). It is therefore unnecessary for present purposes to address Shepherd v The Queen (1990) 170 CLR 573 at 579-580; [1990] HCA 56, the leading case on what will constitute an indispensable intermediate fact.

379. Accordingly, grounds 4(i) and 5(i) and (ii) turn on whether the trial judge’s reasons for finding that the Northbridge Baths phone call was excluded beyond reasonable doubt revealed illogical or clearly mistaken reasoning which amounted to a miscarriage of justice.

380. Ms Rigg relied on the structure of the verdict judgment to make out her submission. She submitted that the verdict judgment was, essentially, divided into two parts: the first part being from [1]-[330] and the second part being the balance. Ms Rigg pointed to the heading, “WAS LYNETTE DAWSON ALIVE AFTER 8 JANUARY 1982”, above [18] of the verdict judgment. In that section the trial judge identified the three categories of evidence which, if accepted, would prove that the deceased was alive after that time:

1. the Northbridge Baths phone call;

2. the bankcard purchases in January 1982; and

3. the alleged sightings of the deceased.

381. The trial judge then proceeded to address the evidence in each of these categories (as indicated by the headings in the verdict judgment set out above).

382. Under the heading, “Northbridge Baths”, the trial judge referred to the applicant’s versions in the Antecedent Report ([24]) and the ERISP ([23] and [35]); Mr Day’s statement and his evidence in the inquest about what the applicant had said to him about the call on 9 January 1982 ([25]-[26]); Helena Simms letter dated 21 August 1982 to the Missing Persons Unit ([27]); and the evidence of CB and JM about their work at the Northbridge Baths ([28]-[34]).

381. The trial judge said at [36]:

“Having regard to this evidence I am unable to accept that the version of events at the Northbridge Baths suggesting Mr Dawson received an STD call from Lynette Dawson on the afternoon of 9 January 1982 could reasonably be true. I am satisfied beyond reasonable doubt that Mr Dawson's various representations that he spoke to Lynette Dawson by telephone on a call made to the Northbridge Baths on that day is a lie. My reasons for forming that view are as follows.”

(Emphasis in bold added.)

384. Ms Rigg submitted that the prefatory words, “Having regard to this evidence” at the beginning of [36], circumscribed the evidence to which the trial judge had regard when excluding the Northbridge Baths phone call as a reasonable hypothesis and that this evidence was manifestly insufficient to justify that finding. She submitted that the trial judge had “come to a conclusion of fact on a pivotal issue on an inadequate factual basis”. Accordingly, she submitted that the trial judge’s error caused a miscarriage of justice.

385. Ms Rigg’s submission has a superficial attraction. It is plain that the evidence recited from [23]-[35] was manifestly insufficient to disprove the Northbridge Baths phone call beyond reasonable doubt; and therefore manifestly insufficient to prove the applicant’s guilt of the offence charged since it did not exclude the reasonable hypothesis that the deceased was still alive on the afternoon of 9 January 1982. However, the verdict judgment is to be read fairly and as a whole: Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70 at [54] (Basten JA, McColl and Simpson JJA agreeing), citing, at fn 25, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456. The trial judge emphasised on several occasions throughout the verdict the need to consider the evidence as a whole.

386. For example, at [13], the trial judge referred to the Crown’s obligation to exclude beyond reasonable doubt the reasonable possibility that the deceased was alive after 8 January 1982, which his Honour said would be addressed first. His Honour then said, at [14]:

“However, as with my consideration of every aspect of the evidence in this trial, it is important to bear in mind at all times that in a circumstantial case such as this, inferences that appear to arise from particular circumstances, both in support of the Crown case and in derogation of it, should only finally be assessed having regard to all of the other circumstances that are in evidence. The circumstantial nature of the evidence in this case makes it clear that it must be considered and assessed as a whole, and not in what the authorities regularly refer to as a piecemeal fashion. One of the consequences of that, for present purposes, is that particular circumstances sometimes require consideration in more than one context. Moreover, but in a related sense, evidence that appears to be unimportant when looked at in isolation may achieve significance when other matters come to light.”

(Emphasis added.)

387. Further, in [36] itself, his Honour said that he was satisfied that the applicant’s statement about the Northbridge Baths phone call was a lie and concluded the paragraph by saying, “My reasons for forming that view are as follows.” This last sentence comprehends the whole of the rest of the decision. In my view, it is sufficiently apparent from the trial judge’s reasons that his Honour took into account the whole of the evidence in his determination that the Crown had excluded the Northbridge Baths phone call.

388. Indeed, in [37]-[41], which is still under “The Northbridge Baths” heading, the trial judge addresses further aspects of the Northbridge Baths phone call. The reasons under this heading concluded at [41] where his Honour said:

“Allowing for the fact that, notwithstanding my opinion, it may be thought that the Crown has not excluded as a reasonable possibility that CB could be mistaken about Col Stubbing being present, this evidence will later be reconsidered in the light of all the other circumstantial evidence in the case touching the question of whether Lynette Dawson is alive or dead.”

389. The reference to the trial judge’s intention to reconsider that evidence “in light of all the other circumstantial evidence in the case” is a further indication that, at all times, the trial judge was conscious of the need to consider the evidence as a whole before coming to a view about whether a reasonable hypothesis consistent with innocence (such as that the deceased made the Northbridge Baths phone call) had been excluded beyond reasonable doubt.

390. At [42]-[63] under the heading, “Later telephone calls”, the trial judge addressed the applicant’s versions of receiving phone calls from the deceased after 9 January 1982. His Honour concluded that section by saying at [63]:

“I have taken these submissions into account. I am, however, satisfied beyond reasonable doubt that Lynette Dawson never telephoned Mr Dawson after 8 January 1982. I am reinforced in that conclusion as well by reason of other circumstantial evidence that leads me to conclude that Lynette Dawson did not leave her home voluntarily. This is considered later in these reasons.”

(Emphasis added.)

391. I reject Ms Rigg’s submission that the word “reinforced” in this paragraph indicated that the trial judge had already found that there had been no calls after 8 January 1982 because I consider that the reference to “other circumstantial evidence” is sufficient to indicate that his Honour considered all the evidence as a whole before making that finding.

392. At [64]-[75], under the heading, “The bankcard references”, the trial judge collated the evidence regarding the alleged bankcard transactions which post-dated the deceased’s disappearance. This section concluded as follows:

“74    … The only evidence of the alleged bankcard transactions by Lynette Dawson is what Mr Dawson has told other people. It is obvious that if the evidence raised the reasonable possibility that Lynette Dawson made bankcard purchases after 8 January 1982, it would be fatal to the Crown case. The documents themselves are not available…

75   Any final assessment of the significance or otherwise of this evidence must await a consideration of all the other circumstantial evidence in the case, considered as a whole and not in a piecemeal fashion.”

393. The trial judge addressed the evidence of sightings at [76]-[144], under a heading to that effect. His Honour recounted the evidence that Ms Butlin had seen the deceased at [77]-[85] and said, at [86]:

“In my view, this conundrum [whether Ms Butlin saw the deceased or whether she was mistaken] is best resolved by reference to other circumstantial evidence touching the likelihood or otherwise that Lynette Dawson was alive after 8 January 1982.”

394. Under the heading, “Conclusion”, which is followed by [145]-[147], it is plain that the trial judge appreciated the need to regard the evidence as a whole when arriving at the verdict. For example, his Honour said:

“146   … As will later appear, however, the whole of the circumstantial evidence satisfies me that Lynette Dawson is dead, that she died on or about 8 January 1982 and that she did not voluntarily abandon her home. Those findings necessarily dispose of the suggestion that she was alive and making credit card purchases later that month or purchasing items at the Kulnurra Fruit Barn.

147   It follows that those findings necessarily and obviously mean that my reasons for specifically rejecting the evidence of phone calls and the alleged sightings retreat in significance. However, my ultimate findings take account of all the evidence considered as a whole.”

395. Latitude is to be given to a trial judge in a trial by judge alone in the way in which the verdict judgment is to be expressed. Some judges might choose to proceed chronologically, as I have done when considering ground 4(ii), in the hope that a sequential narrative will do justice to the whole of the evidence adduced in a circumstantial case and make it easier for the reader to follow. However, as was open to his Honour, the trial judge decided to approach the matter another way by beginning with the Northbridge Baths phone call.

396. The process of deliberation begins once all of the evidence has been adduced and the addresses have been concluded. It requires all of the evidence to be taken into account in an assessment of whether the Crown has proved its case beyond reasonable doubt. However, a verdict judgment can only proceed word by word and sentence by sentence. The reasons explain the reasoning process but are not required to simulate such processes.

397. Having considered the verdict judgment, I am not persuaded that the trial judge erred in rejecting a reasonable hypothesis available to the applicant. I am satisfied that, in rejecting the Northbridge Baths phone call and the other evidence relied on by the applicant as indicating that the deceased might be alive after the evening of 8 January 1982 or the morning of 9 January 1982, the trial judge had regard to the whole of the evidence, as sufficiently indicated by his Honour’s reasons.

398. For the reasons given above, grounds 4(i) and 5 have not been made out.

The application of the proviso

399. Grounds 2 and 3 have been made out. As the Crown relies on the proviso in s 6(1) of the Criminal Appeal Act, it is necessary for this Court to determine whether the trial judge’s errors as alleged are made out regarding the use of lies as evincing a consciousness of guilt gave rise to a substantial miscarriage of justice.

400. Prior to the enactment of the proviso, the so-called “Exchequer rule” required that there be a new trial in respect of every departure from a trial according to law. The purpose of the proviso was to obviate the requirement for a new trial in cases where the appellate court is satisfied that there is no substantial miscarriage of justice: Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7 (Kalbasi) at [13] (Kiefel CJ, Bell, Keane and Gordon JJ).

401. The principles which apply to the application of the proviso include the following. First, the Crown must indicate to the Court whether it relies on the proviso in respect of a particular ground of appeal against conviction. Second, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (Weiss) at [39] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). Third, this task is objective and is to be performed by the appellate court on the basis of the record of the trial: Weiss at [39]. Fourth, a necessary, but not sufficient, condition for the operation of the proviso is that this Court is satisfied that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty: Weiss at [44]. Fifth, the appellate court is to consider the nature and effect of the error in every case: Weiss at [44]. Sixth, there is “[n]o single universally applicable description of what constitutes ‘no substantial miscarriage of justice’” (emphasis in original): Weiss at [44].

402. The High Court in Kalbasi described the approach to be taken by this Court as follows at [12]:

“… The determination of whether, notwithstanding the error, there has been no substantial miscarriage of justice is committed to the appellate court. The appellate court’s assessment does not turn on its estimate of the verdict that a hypothetical jury, whether ‘this jury’ or a ‘reasonable jury’, might have returned had the error not occurred. The concepts of a ‘lost chance of acquittal’ and its converse the ‘inevitability of conviction’ do not serve as tests because the appellate court is not predicting the outcome of a hypothetical error-free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had.”

(Footnotes omitted and emphasis added.)

403. The proviso has been applied when the error is the wrongful admission of evidence: Wilde v R (1988) 164 CLR 365 at 373; [1988] HCA 6; Kalbasi and Pratten v R [2021] NSWCCA 251.

404. In Pratten, the error was the wrongful admission of opinion evidence. Gleeson JA (Johnson and Beech-Jones JJ agreeing) said:

“320   There is no disadvantage in this Court deciding the appeal on the record of the trial, excluding the evidence wrongfully admitted. The error in admitting the opinion evidence of Mr Barns was not of a kind that could prevent this Court from having the capacity to assess whether the offences with which Mr Pratten was charged were proved beyond reasonable doubt: Kalbasi at [17].

321   The strength of the Crown case was manifest. Having considered the evidence, I am satisfied that the evidence, properly admitted at trial, proved beyond reasonable doubt Mr Pratten’s guilt of the offences on which the jury returned its verdicts of guilty. The possibility has been excluded beyond reasonable doubt that Mr Pratten has been denied a chance of acquittal which was fairly open to him. I consider that there has been no substantial miscarriage of justice. Accordingly, the proviso applies.”

405. By contrast, in Firbank v R [2011] NSWCCA 171; (2011) 223 A Crim R 301 where the jury was given a transcript of the cross-examination of the appellant by the prosecutor which contained errors as to his responses, this Court regarded the error as of such significance in the trial as to make it unfair to the appellant “[i]rrespective of the strength of the Crown case”: [85] (McClelland CJ at CL, Hidden and Johnson JJ agreeing) (see also Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217).

406. Whether there has been a substantial miscarriage of justice cannot be determined by reference to generalisations or categories and must depend on the facts, circumstances and error established in the particular case. Although it is necessary, before considering the proviso, for this Court to be satisfied that it was open to the tribunal of fact to find the applicant guilty of the offence charged (as I am, given my rejection of ground 4(ii), the unreasonable verdict ground), this does not determine whether the proviso ought be applied.

407. Ms Rigg submitted that, in considering the application of the proviso, the concessions she made in relation to some of the trial judge’s factual findings for the purposes of ground 4(ii) did not apply and that she “reserved her position” for the purposes of the proviso. I understood her to submit that this Court would need to consider the evidence for itself and in particular the evidence of JC, together with all the circumstances of the trial and decide whether it would be open to a tribunal of fact to reject that evidence or parts of that evidence, such that there is a real possibility that the applicant has been deprived of a chance of acquittal that was fairly open to him.

408. Ms Rigg submitted that as there had been a denial of procedural fairness in the way in which the trial judge dealt with Edwards and Zoneff lies (including because his Honour had not confined himself to COG (1)-(5) when considering which of the lies relied on by the Crown as Edwards lies actually met the Edwards conditions), the applicant was entitled to a new trial. She submitted that the applicant was entitled to have the credibility of JC assessed by a tribunal of fact whose decision-making capacity had not been compromised by error.

409. The body of evidence available to this Court (which excludes that evidence which the trial judge did not accept) for the purposes of deciding whether to apply the proviso has been addressed above. I have reviewed that evidence for the purposes of determining whether to apply the proviso, having regard to the principles set out above and the approach endorsed in Kalbasi.

410. I consider that the strength of the Crown case, based on the eleven pillars identified at the outset, is such as to exclude beyond reasonable doubt the hypothesis that the deceased left her husband, children, family, home and friends (which I regard as no more than fanciful) and prove the guilt of the applicant for her murder on 8 January 1982 or early 9 January 1982.

411. The applicant’s statements (many of which were exposed as lies, as set out above) were superfluous to the Crown case, as was demonstrated by the fact that they were not relied upon at trial in opening address. With one exception, they related to the deceased after 8 January 1982: her alleged intentions (to have a break from him); where she might be at a given time (Katies, Just Jeans, the Central Coast, the Blue Mountains or New Zealand); and what she might be doing (being part of a religious cult; shopping at Warriewood Square or a fruit barn on the Pacific Highway). The exception was the applicant’s statement to police that he had travelled north by himself before Christmas. This statement was shown to be false by a wealth of evidence, including the photograph he took of JC on 23 December 1981 before their departure for Queensland, JC’s evidence, Marilyn and Paul’s evidence and the wording of the note he had left for the deceased (the contents of which she imparted to her mother and brother). The applicant did not challenge this evidence at trial.

412. The Crown’s evidence proved beyond reasonable doubt that the applicant killed the deceased either late on 8 January 1982 or early on 9 January 1982 to make way for JC to move straight into the Bayview house as his life partner as soon as the applicant retrieved her from South West Rocks, as the evidence established occurred. Had the applicant said nothing at any time to anyone, including the deceased’s family and the police, the circumstantial case against him would not have been weaker in any real sense.

413. For these reasons, I am satisfied that the proviso applies in the present case. I consider that no substantial miscarriage of justice has actually occurred as a result of the errors established in grounds 2 and 3 and that the appeal ought be dismissed.

Proposed orders

414. For the reasons given above, I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

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Amendments

24 June 2024 - "21" replaced by "almost 12" - [262]

Decision last updated: 24 June 2024