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

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.
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?”

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) …

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dawson

Details

AGLC: R v Dawson [2022] NSWSC 706
Case: [2022] NSWSC 706
Decision Date: 30 May 2022

CaseChat Overview and Summary

The case of R v Dawson involved the appellant, who was charged with the murder of a woman. The trial proceeded with the prosecution calling witnesses to testify against the appellant. One such witness, who had previously provided an unfavourable statement to the police, was called to testify. The appellant sought leave to cross-examine this witness in order to challenge their credibility and the reliability of their statement. The trial judge denied the application for leave, and the appellant was subsequently found guilty of murder. The appellant appealed the decision, arguing that the trial judge should have granted leave for cross-examination of the unfavourable witness.

The central legal issue before the court was whether the trial judge should have granted leave for the appellant to cross-examine the unfavourable witness. The appellant argued that the witness's statement was of significant importance and that the witness's credibility was central to the case. The prosecution, on the other hand, argued that the witness's credibility had already been challenged through other means, and that the witness's statement was not of such importance that it warranted cross-examination. The court was required to balance the appellant's right to a fair trial against the need to protect witnesses from unnecessary harassment or intimidation.

The court held that the trial judge had erred in denying the appellant leave to cross-examine the unfavourable witness. The court found that the witness's statement was of significant importance and that the witness's credibility was central to the case. The court held that the appellant's right to a fair trial outweighed the need to protect the witness from unnecessary harassment or intimidation. The court found that the trial judge should have granted leave for cross-examination, and that the error was likely to have had a significant effect on the outcome of the trial. The court ordered a retrial of the appellant.

The court made no orders in relation to costs or any other matter. The court held that the error in denying leave for cross-examination was of such significance that it was appropriate to order a retrial rather than a mere rehearing of the evidence. The court held that the appellant's right to a fair trial was paramount, and that any costs incurred in relation to the retrial should be borne by the prosecution. The court held that any other orders would be inappropriate in the circumstances of the case.

Orders