R v Dawson

[2022] NSWSC 545

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dawson [2022] NSWSC 545
Hearing dates:	04 May 2022
Date of orders:	06 May 2022
Decision date:	06 May 2022
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	Order pursuant to s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 that publication of any details of or concerning the fact that the accused Christopher Michael Dawson has applied for legal aid, or with respect to any appeal by him from the decision of the Legal Aid Commission refusing any such application, be prohibited until further order of the Court.
Catchwords:	CRIMINAL LAW – murder trial – significant public interest in the trial proper – Court Suppression and Non-publication Orders Act 2010 – application by accused for legal aid – whether in the public interest to suppress publication of the fact of such an application – whether there is a risk that publicity concerning that application might affect it adversely and hence the trial itself
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 11, 12
Category:	Procedural rulings
Parties:	Regina (Crown) Christopher Michael Dawson (Accused)
Representation:	Counsel: C M Everson SC and E Blizard (Crown) P David (Accused) D Sibtain (Media intervenors) Solicitors: 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

1. HIS HONOUR: By notice of motion filed in court on 4 May 2022, the Crown moves the court for the following orders:

1. That publication of the evidence and submissions in the present trial be prohibited until the occurrence of one of the events specified in order (2) on the grounds that (a) the order is necessary to prevent prejudice to the proper administration of justice and (b) 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. That for the purpose of s 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the order is continued until the conclusion of the trial of Christopher Michael Dawson in relation to the allegation of carnal knowledge listed for trial before the District Court at Sydney on 15 August 2022 or until any order is made under s 132 Criminal Procedure Act 1986 (NSW) that the carnal knowledge trial is to be tried by judge alone or until further order.

3. That pursuant to s 11 of the Court Suppression and Non-publication Orders Act, the order applies throughout the Commonwealth of Australia.

2. The Crown’s application for those orders is supported by Mr Dawson. It is opposed by the media intervenors listed in the Schedule to these reasons, which organisations seek leave to intervene. That application, and Mr Dawson’s separate but broader application for the suppression of all publicity or reporting of the trial, has been adjourned for hearing before me on 9 May 2022.

3. However, by separate oral application, Mr Dawson now seeks an order that publication of any details of or concerning the fact that he has applied for legal aid, or with respect to any appeal by him from the decision of the Legal Aid Commission refusing any such application, be prohibited until further order of the Court. I heard that application on 4 May 2022, on which occasion I relevantly made the following order:

2. On the application to restrain publication relating to Mr Dawson’s application for, or the refusal of, legal aid:

(a) reserve my decision;

(b) order, on an interim basis until further order, that there be no publication of Mr Dawson’s application for legal aid or of any evidence or material capable of identifying the fact that it has been made.

4. These reasons deal with my final determination of that application.

5. On 2 May 2022, these proceedings came before the Chief Judge at Common Law on Mr Dawson’s application for a trial by judge alone. Mr Dawson sought at that time to adjourn his application for a judge alone trial until the question of whether he would be granted legal aid had been finally determined. His Honour declined to adjourn the proceedings and proceeded to hear the application. That application was successful.

6. In support of his application for an adjournment, Mr Dawson relied upon an affidavit sworn by his solicitor Gregory Alexander Walsh on 1 May 2022. Mr Dawson’s application for legal aid remains current and is yet finally to be determined by the Legal Aid Commission. However, pending that decision, Mr Dawson once again relies upon Mr Walsh’s affidavit to inform and support a discrete concern to restrain publication of his dealings with the Commission. That concern arises in the following way.

7. Mr Dawson resides at a property in Queensland, owned by him and his wife Susan. That property currently secures a condition imposed upon Mr Dawson’s release on bail. Mr Dawson also owes a significant debt to family members who have advanced monies for the payment of his legal fees incurred in his defence of these proceedings. Mr Dawson has no independent resources to pay his lawyers and his solicitor has for some time been acting for him on a pro bono basis. Fees for counsel retained to date have been paid by a member of his family.

8. On 29 April 2022, Mr Dawson’s application for legal aid was formally refused. This was on the basis that the value of his assets exceeded the allowed limit in order to qualify for a grant. An appeal against that decision has since been lodged.

9. Without descending into the details, Mr Dawson and his wife are now separated. That occurred in about 2020. Mr Walsh has indicated in his affidavit that the separation was the result of the not inconsiderable stress and anxiety suffered by Mrs Dawson associated with the charges faced by her husband and what Mr Walsh has described as the extraordinary publicity that the case has generated.

10. Mr Walsh has indicated that, in his observation, Mrs Dawson has been deeply affected by this publicity over many years. Her financial affairs are intertwined with those of Mr Dawson and she has previously cooperated with him in permitting joint assets to be used as security for his bail undertaking. However, following their separation, Mrs Dawson has consulted a family lawyer with respect to proceeding with an application for a property settlement under s 79 of the Family Law Act 1975. That application has not yet been finalised.

11. Mr Walsh has also indicated that Mrs Dawson lent Mr Dawson in excess of $200,000 from her superannuation to assist him with the payment of legal fees. That loan would entitle Mrs Dawson to an equivalent adjustment, in addition to other rights she may have upon the breakdown of the marriage.

12. On 26 April 2022, Mrs Dawson wrote to her husband in these terms:

“Christopher, we have now been separated for 2 years and I hereby give you final notice that I will no longer be assisting you financially.

I have tried to be supportive but please understand that I need to remove myself from your unfortunate situation for my own emotional and financial survival.”

13. Mr Dawson has contended that any successful reconsideration of his application for legal aid will require the continued cooperation of his wife, having regard to the prospect of readjusting their joint interest in two properties, which readjustment the Commission did not originally take into account when refusing his application. Mr Dawson is concerned that the success of his appeal from the Commission’s refusal to grant him assistance will depend significantly upon Mrs Dawson’s continued cooperation in promptly finalising their joint financial affairs, which finalisation he fears may be imperilled if Mrs Dawson is exposed to further publicity about such matters.

Consideration

14. It is important to note that these proceedings have attracted considerable publicity already. Mr Dawson has prosecuted his application for a permanent stay of the proceedings, upon the basis that he could not receive a fair trial by any jury, as far as the High Court. His later successful application for a trial by judge alone was based substantially upon the same considerations that inspired the unsuccessful application for a permanent stay. As will be apparent from what appears above, Mr Dawson and the Crown continue to maintain that Mr Dawson’s trial on a charge of carnal knowledge commencing in the District Court in August this year is also liable to be adversely affected by publicity of his trial on the charge of murder.

15. The present application is considerably more limited. Its object is not to secure a fair trial unaffected by adverse publicity in the general sense but to ensure that more narrowly focussed publicity does not potentially imperil Mr Dawson’s ability to secure legal representation at his trial and, by extension, does not also potentially endanger the trial itself.

16. Section 8 of the Court Suppression and Non-publication Orders Act 2010 is in these terms:

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) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(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) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

17. In opposition to any, and indeed all, suppression of publicity concerning Mr Dawson’s trial for murder, Mr Sibtain of counsel on behalf of the media intervenors made the following submissions with respect to the application.

18. The forthcoming trial has attracted considerable public interest throughout Australia for many years and it continues to do so. It has already been the subject of extensive publicity. Over the last four years at least, the facts surrounding the disappearance of Lynette Dawson and Mr Dawson’s alleged involvement in it have been widely reported.

19. Mr Sibtain has indicated that he will in due course submit that complete suppression of reporting of the trial proper cannot be supported or justified on several grounds. It is presently unnecessary to consider his contentions in that regard. However, as a subset of those submissions, Mr Sibtain maintains that even the limited publication of details concerning the fact or the result of Mr Dawson’s application for legal aid should be similarly assessed.

20. Principal among Mr Sibtain’s contentions is the proposition that the likelihood that Mrs Dawson’s continued assistance and cooperation with Mr Dawson’s attempts to secure funding for his trial will come to an end has neither been sufficiently established on the evidence before me or otherwise shown to be established to any level rising higher than mere conjecture or speculation. Mrs Dawson does not say so in terms in her letter to Mr Dawson and she was not called to give evidence in elucidation of the sentiments expressed in it.

21. In forming my views on this application, I have taken account of Mr Sibtain’s written submissions, and in particular the following paragraphs:

“10. The fundamental rule is that the administration of justice must take place in open court. The primacy of the public interest in open justice is emphasised by s 6 of the Act, and by the adoption by parliament of a test of ‘necessity’ to warrant a departure from it. Section 7 of the Act provides that a suppression or non-publication order may only be made on the grounds permitted by the Act, and the grounds in s 8(1) of the Act each provide that the order must be ‘necessary’ for the stated purpose.

11. The test of necessity is informed by its context and requires an evaluation of the proposed order and its identified purpose. If an order is futile or ineffective, it cannot be described as necessary. If an order will not achieve the intended outcome, it cannot be, in all the circumstances, necessary. ‘Necessary’ is a strong word, and an order should only be made in exceptional circumstances. An order is not necessary if it appears to the court [merely] to be convenient, reasonable or sensible, or desirable.

12. Before making an order, there must be material before the Court upon which it may reasonably conclude that it is really necessary to make the order sought so as to secure the proper administration of justice. Importantly, the order must do no more than is necessary to achieve the due administration of justice, or to achieve the objects of the statutory power. The Court is not permitted to engage in some ‘balancing exercise’ in which it weighs competing considerations.”

22. It seems to me that the evidence establishes at least two things. The first is that Mr and Mrs Dawson are in the process, albeit the early stages, of agreeing upon the division of their joint or matrimonial assets and that the resulting clarification of where that leaves Mr Dawson will or might reliably inform his eligibility for a grant of legal aid for his trial. The second is that the evidence raises the possibility that Mrs Dawson’s decision to withdraw from that process carries with it the risk that Mr Dawson’s application for legal aid, or his appeal from the Commission’s decision to deny him a grant, may thereby be delayed or even defeated.

23. I do not understand Mr Sibtain to challenge the first of these concerns. So far as concerns the second, Mr Sibtain maintains that the risk is either non-existent, having regard to the state of the evidence, or so small as to be outweighed by the public interest in open justice. That proposition requires examination.

24. The risk in question is that there may be some delay in the commencement of Mr Dawson’s trial or some other more severe interference with the smooth running of it if he were either unrepresented or succeeded in an application that the trial be permanently stayed by reason of his inability to secure legal representation. Even accepting that either risk may be slight, the consequences of such a risk eventuating are not. Indeed, Mr Sibtain’s powerful and persuasive reliance upon the importance of the considerable public interest in the trial is itself supportive of the fact that any chance that the trial may be delayed or imperilled would alone amount to a matter of considerable public concern. It would represent a potential interference with the due administration of justice.

25. By the same token, whereas one can well appreciate that there may be considerable interest in the trial itself, it is somewhat difficult to conceptualise the existence of any interest at all in the rather mundane administrative considerations attending the question of whether or not Mr Dawson becomes legally aided, unless one were to give weight to the frankly offensive and pejorative notion that someone charged with a serious crime should not be entitled to any such publicly available assets-limited financial support.

26. I accept, as Mr Sibtain maintains, that there is a public interest in Mr Dawson’s trial, and by extension, a public interest in it proceeding to a proper conclusion. The so-called public interest in the limited issue of legal aid is difficult to characterise as either real or important. It seems to me to be almost entirely illusory and confected.

27. I am therefore driven to conclude, in the particular and limited circumstances of this application, that it is otherwise necessary in the public interest to make an order suppressing or prohibiting publication of Mr Dawson’s legal aid request and that that public interest significantly outweighs the public interest in open justice.

SCHEDULE

1. Nationwide News Pty Ltd

2. Nine Network Australia Pty Ltd

3. Fairfax Media Publications Pty Ltd

4. Network Ten Pty Ltd

5. Special Broadcasting Service Corporation

6. Australian Broadcasting Corporation

7. Dailymail.Com Australia Pty Ltd

8. Seven Network (Operations) Limited

9. Australian News Channel Pty Ltd

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Decision last updated: 09 September 2022