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R v Dawson

R v Dawson

Case [2022] NSWSC 552 9 May 2022

Criminal Liability

Stay of Proceedings

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Dawson [2022] NSWSC 552
Hearing dates: 2 May 2022
Date of orders: 2 May 2022
Decision date: 09 May 2022
Jurisdiction: Common Law - Criminal
Before: Beech-Jones CJ at CL
Decision:
Pursuant to s 132(1) of the Criminal Procedure Act 1986, the trial of the accused proceed by way of judge alone.

Catchwords:
CRIMINAL LAW – application for a judge alone trial – accused charged with murder – long delay in investigation and charging – “egregious” pre‑trial publicity – “Teacher’s Pet” podcast – podcast widely distributed – podcast directed to persuading listener of accused’s guilt – participation of public officials in podcast – “interests of justice” – differences between test for stay of prosecution and making of order for judge alone trial – ability to address prejudice by steps taken at time of empanelment – application granted

Legislation Cited:
Criminal Procedure Act 1986
Jury Act 1977
Legislation Amendment (Emergency Measures) Act 2020

Cases Cited:
Arthurs v State of Western Australia [2007] WASC 182
BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61
Dawson v R [2021] NSWCCA 117
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28
R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86;
R v Dawson [2020] NSWSC 1221
R v Simmons; R v Moore (No 4) [2015] NSWSC 259
R v Villalon [2013] NSWSC 1516
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
TVM v State of Western Australia [2007] WASC 299

Category: Principal judgment
Parties: Regina (Crown/Respondent)
Christopher Michael Dawson (Accused/Applicant)
Representation:
Counsel:
Mr C Everson SC; Ms E Blizard (Crown)
Ms P David (Accused)
Mr DR Sibtain (Media Intervenors – Nationwide News, Nine Network, Fairfax Media, Network Ten, SBS, ABC, Daily Mail, Seven Network)
Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Greg Walsh & Co (Accused)

File Number(s): 2018/372527

Judgment

On 3 April 2020 the accused, Christopher Michael Dawson, was arraigned in this Court on a charge that on or about 8 January 1982 he murdered Lynette Joy Dawson. He pleaded not guilty.
Mr Dawson’s trial is currently listed to commence on 9 May 2022. On 14 April 2022, he signed an election pursuant to s 132(1) of the Criminal Procedure Act 1986 (“CPA”) for trial by a judge sitting without a jury.^[1] On the same day, he filed a notice of motion seeking that order.
1. Court Book (“CB”) 1117.
The application was listed before me on 2 May 2022. After refusing an application for adjournment, the matter proceeded. Shortly after submissions concluded, I made an order granting the application for a Judge alone trial. I stated that the reasons for that order would be published later. This judgment constitutes those reasons.
At the request of the parties, I delayed publication of these reasons pending the outcome of an application…

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 552
Case: [2022] NSWSC 552
Decision Date: 09 May 2022

CaseChat Overview and Summary

The case of R v Dawson involved an accused person, Dawson, who was charged with the crime of murder. The dispute centred around the application for a judge alone trial, considering the long delay in investigation and charging, as well as the “egregious” pre-trial publicity that had been generated, particularly by the “Teacher’s Pet” podcast. This podcast was widely distributed and directed towards persuading listeners of the accused's guilt, with the involvement of public officials further complicating the matter. The court had to determine whether the interests of justice required the case to be heard by a judge alone, separate from a jury.

The legal issues before the court included the applicability of the test for a stay of prosecution versus the test for making an order for a judge alone trial. The court had to consider whether the prejudicial effects of the pre-trial publicity could be sufficiently addressed by measures taken at the time of empanelment, such as voir dire and appropriate jury directions. The court also needed to weigh the right to a fair trial against the public interest in ensuring that the accused received a fair hearing. The key question was whether the pre-trial publicity had created such a high risk of prejudice that it could not be mitigated by any steps taken during the trial.

The court concluded that the prejudicial impact of the podcast was indeed significant and unlikely to be fully mitigated by any measures taken during the trial. The podcast had been widely distributed and was aimed at persuading the public of the accused's guilt, with the participation of public officials adding weight to its credibility. The court found that the interests of justice required the case to be heard by a judge alone, as the potential for prejudice was too high to allow for a fair trial before a jury. The application for a judge alone trial was therefore granted, acknowledging the severity of the pre-trial publicity and its potential to irreparably damage the accused’s right to a fair trial.

Orders