R v Dawson
[2022] NSWSC 555
•11 May 2022
Supreme Court
New South Wales
Medium Neutral Citation: R v Dawson [2022] NSWSC 555 Hearing dates: 9 May 2022 Date of orders: 11 May 2022 Decision date: 11 May 2022 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: The applications for a suppression order are refused.
Catchwords: CRIMINAL LAW – murder trial – significant public interest in the trial proper – Court Suppression and Non-publication Orders Act 2010 – applications by accused and Crown that all evidence and submissions be suppressed pending conclusion of accused’s District Court trial – whether the public interest in preventing prejudice to the proper administration of justice outweighs the public interest in open justice
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
Cases Cited: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
Category: Procedural rulings Parties: Regina (Crown)
Christopher Michael Dawson (Accused)Representation: Counsel:
Solicitors:
C M Everson SC and E Blizard (Crown)
P David (Accused)
D Sibtain (Media intervenors)
Office of the Director of Public Prosecutions (Crown)
Greg Walsh & Co Solicitors (Accused)
Thomson Geer Lawyers (Media intervenors)
File Number(s): 2018/372527 Publication restriction: Nil
Judgment
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HIS HONOUR: The Crown and the accused both apply for orders that all evidence and submissions in this trial be suppressed until the conclusion of Mr Dawson’s trial in the District Court on a charge of carnal knowledge upon the basis that it is necessary to prevent prejudice to the proper administration of justice or is otherwise necessary in the public interest and that that public interest significantly outweighs the public interest in open justice. On 9 May 2022, I rejected those applications. These are my reasons for doing so.
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Mr Dawson is charged that on or about 8 January 1982 at Bayview or elsewhere in the State of New South Wales he murdered Lynette Dawson. Mr Dawson and Lynette Dawson married in March 1970. Subject to some evidence to the contrary that it is anticipated will be called in the proceedings, Mrs Dawson has not been seen or heard from since on or about 8 March 1982. The Crown alleges that the circumstances support a finding beyond reasonable doubt that Mrs Dawson is dead and that Mr Dawson is responsible for her death.
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The Crown contends that Mr Dawson killed his wife in order to facilitate his desire to continue a relationship with JC, a young woman who had at one time been a pupil at Cromer High School at which Mr Dawson was a teacher. In advance of the evidence being led before me, it is sufficient to note only that the Crown alleges that Mr Dawson and JC engaged in an act of sexual intercourse when Mr Dawson was still a teacher and JC was still a pupil at the school. JC was born on xx February 1964. In those circumstances, Mr Dawson has also been charged with carnal knowledge based upon JC’s age at the time and Mr Dawson’s position as a teacher at her school. For reasons that will be apparent, I have intentionally not described the precise circumstances that the Crown will maintain support the charge of carnal knowledge. However, the indictment in the carnal knowledge trial is in the following terms:
“On a day between 1 July 1980 and 12 December 1980, at Maroubra in the State of New South Wales, [Christopher Michael Dawson] did unlawfully and carnally know [JC] a girl above the age of 10 years and under the age of 17 years, namely 16 years and who was at that time a pupil of the said Christopher Michael Dawson.”
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Mr Dawson’s trial on the charge of murder commenced before me on 9 May 2022. The application for a suppression order was heard first. Mr Dawson’s trial on the carnal knowledge charge is scheduled to commence in the District Court following the conclusion of this trial. The contention advanced in favour of an order suppressing any publication concerning this trial until the carnal knowledge proceedings have concluded is that unless that occurs, the publication of the evidence in his murder trial will be entirely inimical to Mr Dawson’s prospects of obtaining a fair trial before a jury in the District Court. Both the Crown and Mr Dawson maintain that whatever may be the outcome in this trial, the evidence that is likely to be led before me will be so potentially damaging to him, including to his credit, that it will not be possible to have any confidence that twelve jurors can be found who are not irretrievably and unfavourably predisposed to him as the result of coming into contact with the immense publicity that his murder trial is certain to generate. More particularly is that said to be so because the evidence of JC will figure prominently in the Crown case in the murder trial on issues that include the date of commencement of their intimate relationship as well as other matters more widely concerned with the Crown case. Those issues include, but are not restricted to, evidence of the status of Mr Dawson’s relationship with his wife and a suggested motive for killing her. JC will obviously be the principal Crown witness in the District Court.
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In support of the application, Mr Dawson relies upon a number of affidavits that are listed in paragraph 2 of Mr Walsh’s written submissions dated 8 May 2022. Mr Dawson also relies upon the affidavit sworn by Mr Walsh on 6 May 2022. I have had particular regard to the matters deposed to in those affidavits.
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In opposition to the orders sought, Mr Sibtain of counsel, appearing for a series of media intervenors, reads the affidavit of Jessie Nygh affirmed on 1 May 2022. I have considered that evidence as well.
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Section 8 of the Court Suppression and Non-publication Orders Act 2010 is relevantly as follows:
8 Grounds for making an order
(1) A court may make a suppression order or non-publication order on one or more of the following grounds—
(a) the order is necessary to prevent prejudice to the proper administration of justice,
(b) …
(c) the order is necessary to protect the safety of any person,
(d) …
(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
(3) …
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It is Mr Dawson’s submission that it is in the public interest for the suppression order that he seeks to be made. That public interest subsists in the fundamental right of all citizens to receive a fair trial according to law, determined by reference to admissible evidence led in court before the jury and not upon the basis of material at large in the community, accessible electronically by all and sundry, without the knowledge of the parties to the proceedings and without the slightest prospect that its provenance or reliability can be tested or assessed. It has been submitted on Mr Dawson’s behalf that it is “outrageous” to suggest that any possibility that he may not receive a fair trial has already been lost by reason of the nature and extent of the extraordinary publicity about the matters that he now seeks to suppress.
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However, with respect to the understandable emotional force of that argument, it appears to me to embrace the notion of a balancing exercise which the parties’ written submissions and the authorities all accept is not the way in which the issue is to be assessed. In other words, it is not appropriate that I should compare the wider public interest in the sanctity of every person’s right to a fair trial, including Mr Dawson, with the community’s interest in the democratic concept of open justice. I acknowledge that, at one level, the statutory adoption of the concept of open justice necessarily admits of exceptions in a particular case. The present application contends that this is an exceptional case.
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The argument that a suppression order would be futile intersects with the question of what is or is not “otherwise necessary”. For better or worse, there is currently material that is, and has for a long time been, publicly available and accessible on the Internet that has remained beyond the scope of orders of this Court. Most of it is entirely unfavourable to Mr Dawson but not all of it. The effective burden of the submission of the media intervenors is that Mr Dawson’s ability to obtain a fair trial in the District Court has or at least may, by reason of the extensive, uncensored and egregious publicity, already have been compromised so that the restraint or suppression of the evidence in his murder trial, or of the judgment that I am required to deliver, cannot be “otherwise necessary”. The material deposed to by Ms Nygh concerning the searches and search results obtained by her using the term “Chris Dawson Murder” returned literally several million results. It is simply not possible to neutralise this type of publicity. Suppression of what amounts to a less sensational version of the same material that it is anticipated will be led in the context of Mr Dawson’s trial is therefore said to be effectively futile.
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Put another way, accepting the fundamental public interest in maintaining the integrity of Mr Dawson’s trial in the District Court, the public interest in open justice is not outweighed, and is more importantly not “significantly outweighed”, by that public interest if the suppression order that is sought will, in lay terms, simply make no difference. Something that will, or that appears likely to, have no practical consequence, according to this argument, could not therefore be “necessary”, even if it were highly desirable: see generally with respect to the meaning of “necessary” Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]-[31], in particular at [31] as follows:
“[31] Significantly, an order is not ‘necessary’ if it appears to the court ‘to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics’: Hogan v Australian Crime Commission…”
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Having considered this application at length, I do not consider that it is otherwise necessary in the public interest for an order to be made suppressing publication of all evidence and submissions in this trial or that that public interest significantly outweighs the public interest in open justice.
Order
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The applications for a suppression order are refused.
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Decision last updated: 17 May 2022
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