R v Dawson

[2022] NSWSC 784

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dawson [2022] NSWSC 784
Hearing dates:	14 June 2022
Date of orders:	14 June 2022
Decision date:	14 June 2022
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	Grant leave to the Crown pursuant to s 38 of the Evidence Act 1995 to cross-examine Lynette Hutcheon.
Catchwords:	CRIMINAL LAW – murder trial – unfavourable witness – whether leave to cross-examine should be granted
Legislation Cited:	Evidence Act 1995 (NSW), s 38
Category:	Procedural rulings
Parties:	Regina (Crown) Christopher Michael Dawson (Accused)
Representation:	Counsel: C M Everson SC and E Blizard (Crown) P David (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Greg Walsh & Co Solicitors (Accused)
File Number(s):	2018/372527
Publication restriction:	Nil

EX TEMPORE Judgment

1. HIS HONOUR: Lynette Hutcheon is in the course of giving her evidence. On 13 March 2019, she signed a statement given to the police to which is annexed a running sheet which, on its face, indicates that at about 2pm on 26 February 1999, Detective Sergeant Pendergast and Detective Gill visited Mr and Mrs Hutcheon at their Cromer premises and had a conversation with them.

2. Part of the running sheet suggests, in the words of its author, that neither Ms Hutcheon nor Mr Hutcheon had ever had any contact with the missing person, Lynette Dawson, since her disappearance. The running sheet also suggests that Ms Hutcheon was unable to supply a contact number for her brother, Christopher Dawson.

3. The Crown wishes to ask a question of Ms Hutcheon relating to, in the first instance, whether or not she in fact said to the officers who visited her that she was unable to supply a contact number for her brother, Christopher Dawson. That issue arises in the context that, during the course of her evidence, the Crown played an audio of a telephone intercept of a conversation between Ms Hutcheon and her brother Christopher Dawson.

4. At face value, the Crown contends and will presumably in due course submit that the fact that Ms Hutcheon telephoned her brother was itself a contradiction of any suggestion that she was unable to supply a contact number for her brother, if in fact that is what she said to the police.

5. It has to be observed that Ms Hutcheon has not at any time in this case so far said in evidence that she did not have Mr Dawson's phone number or that she was unable to supply it to the police when asked.

6. The Crown seeks leave to cross-examine Ms Hutcheon against the contingency that in due course some evidence may be given in or to the effect of the running sheet note suggesting that the police were not given Mr Dawson's phone number by Ms Hutcheon because she was "unable to supply" it to them when asked.

7. As a matter of fairness to her, it seems to me that leave should be given to the Crown to put the alternative proposition derived from a document attached to her statement but not being a contrary statement by her.

8. Secondly, the Crown seeks leave pursuant to s 38 of the Evidence Act to cross-examine Ms Hutcheon upon the basis that the evidence that she gave to the attending police, that she overheard her husband, the late Ross Hutcheon, tell the police that he had seen Lynette Dawson in Gladesville by the hospital in Victoria Road when he was driving by, was incorrect.

9. The Crown has made it clear in the Crown case statement that Mr Hutcheon's evidence of that sighting will be contended by the Crown to be a lie. It is not suggested that Ms Hutcheon is complicit in that lie for the simple reason that she was not present at the time Mr Hutcheon said he saw Lynette Dawson at Gladesville.

10. However, the Crown wishes to contend in a slightly narrower context that Mr Hutcheon did not in fact tell the police that he saw Lynette Dawson on this occasion and that his advice to the police about that arose at a later date, specifically, only after Mr Dawson had been arrested.

11. Again, as a matter of fairness to this witness, the Crown wishes to cross-examine her to the effect that she did not hear her husband in 1999 give his Gladesville sighting version of events to the police in her presence.

12. The evidence that Ms Hutcheon has given to the effect that she did hear this is, in my view, unfavourable to the Crown case within the meaning of that term in s 38. I therefore consider it appropriate for leave to be granted for her to be asked questions about that as well.

**********

Decision last updated: 09 September 2022