R v Dawson

[2022] NSWSC 706

Supreme Court

New South Wales

Medium Neutral Citation:

R v Dawson [2022] NSWSC 706

Hearing dates:

30 May 2022

Date of orders:

30 May 2022

Decision date:

30 May 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 Peter Dawson.

Catchwords:

CRIMINAL LAW – murder trial – unfavourable witness – whether leave to cross-examine should be granted

Legislation Cited:

Evidence Act 1995 (NSW), s 38

Cases Cited:

Director of Public Prosecutions (Vic) v Garrett (2016) 257 A Crim R 509; [2016] VSCA 31

R v Le [2001] NSWSC 174

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

Judgment

1. HIS HONOUR: The Crown called Peter Dawson in its case. Peter Dawson is the elder brother of Christopher Dawson. Peter Dawson was admitted to practice as a legal practitioner in 1968. He practised in the areas of criminal law and family law.

2. Peter Dawson was asked the following question by the Crown in his evidence in chief:

“Q. Mr Dawson, did the topic of the dissolution of the marriage between Lynette Dawson and Christopher Dawson ever come up in conversation on the phone with your brother Chris?”

3. Mr Dawson answered “No” to that question. The Crown immediately sought leave pursuant to s 38(1) of the Evidence Act 1995 to cross-examine Mr Dawson upon the basis that his answer was unfavourable to the Crown. Section 38 is relevantly in the following terms:

38 Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) …

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) …

4. The context in which the Crown asserts that Mr Dawson’s answer was unfavourable is as follows. During the course of her evidence, JC said this at transcript 312:

“Q. What things did you hear Peter Dawson say to Chris Dawson at around the time of the proposed moving into the flat in Manly?

A. I know he spoke on the phone to Chris Dawson with Peter spoke to Chris Dawson on the phone in relation to what would happen what would happen to the property at Gilwinga Drive if he chose to move out of it.

Q. And how do you know that? By that, did you hear Peter Dawson say it or did you learn it in some other way?

A. Well, I was there at the time, and Chris Dawson, when he got off the phone from Peter Dawson, said what his brother had told him.

Q. What did Chris Dawson tell you that his brother Peter had told him?

A. That if he moved out of the Gilwinga Drive property, that would jeopardise his rights to his property.

Q. On that topic, was anything else said by Chris Dawson?

A. Probably that, ‘We’re not doing it because I don't want to lose my property’, so another alternative to be thought of.”

5. The Crown maintains that the accused had a motive to murder his wife and that part of that motive includes a desire to avoid having to distribute any part of his joint or matrimonial property with her in the event that their marriage were dissolved. The Crown relies on this evidence of JC as support for the theory that the accused was concerned to inquire of his brother about the likely or possible outcome for him of a property settlement if that occurred, and that the advice he received did not suggest a favourable outcome for him if a division of matrimonial property were pursued in the Family Court.

6. The Crown anticipated that Peter Dawson would have given evidence in accordance with information contained in a running sheet prepared by Detective Sergeant J Pendergast on 4 March 1999 when Peter Dawson was interviewed on that day. Paragraph 5 of the running sheet is in these terms:

“5. Peter DAWSON was unable to specifically recall giving Christopher advice on the consequences of leaving Lyn but does not deny that he may have done so. If it did occur then he may have told Chris that he would lose between 60-70% of what he owned together with loss of custody of the two children.”

7. The Crown contended that Peter Dawson’s answer to the question asked was evidence that is unfavourable to the Crown in accordance with that description in s 38(1)(a) of the Evidence Act. An accompanying submission, that Peter Dawson had made a prior inconsistent statement, as contemplated by s 38(1)(c) of the Act, having regard to the content of paragraph 5 of the running sheet, was ultimately not pressed.

8. In R v Le [2001] NSWSC 174 at [15], McClellan J expressed the view that

“the word ‘unfavourable’ should be given a broad meaning thereby ensuring that in the course of any criminal trial the court would not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested”.

9. In Director of Public Prosecutions (Vic) v Garrett (2016) 257 A Crim R 509; [2016] VSCA 31, the Court concluded, among other things, at [69] as follows:

“The inconsistency or contradictory nature of the evidence may arise because the witness asserts a fact – or fails to give evidence of a fact – in circumstances that permit the conclusion that his evidence is unfavourable. Evidence may be unfavourable even if the witness it is sought to cross-examine gives no evidence that actually detracts from the case of the party by whom he or she is called. If the party calling the witness contends that the witness should be able to give evidence supportive of that party’s case, and the witness does not give such evidence, that may suffice to make the evidence given by the witness ‘unfavourable’ within the meaning of s 38.”

10. In my view, Peter Dawson’s evidence is unfavourable to the Crown and leave to cross-examine him should be granted. The answer to the question asked was at odds with the Crown’s reasonable anticipation that Peter Dawson would confirm the information given by Mr Dawson to Detective Pendergast and included by him in his 1999 running sheet. The fact that Peter Dawson might later contest or dispute the accuracy of that note is not to the point.

11. By notice pursuant to s 38 dated 23 April 2020, the Crown advised that it intended to seek leave to cross-examine Peter Dawson as though the prosecution were cross-examining him. That matter was relevant to my consideration of the matters referred to in s 38(6) of the Act.

**********

Decision last updated: 09 September 2022