R v Dawson - [2020] NSWSC 1221

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Dawson [2020] NSWSC 1221
Hearing dates: 15-31 July 2020
Decision date: 11 September 2020
Jurisdiction: Common Law
Before: Fullerton J
Decision:
1. The notice of motion seeking an order for a permanent stay of the trial is dismissed.
2. The trial is not to commence before a jury before 1 June 2021.
3. The parties are to jointly apply to the chambers of the Criminal List Judge by 5pm on 14 September 2020 for a date when the trial will be called over by his Honour.

Catchwords:
CRIMINAL LAW – application for permanent stay of indictment on individual and composite grounds – applicant charged with the murder of his wife in 1982 – ODPP’s decision to prosecute in 2018 reversing earlier decisions not to prosecute – extensive pre-trial publicity and commentary, including a podcast series in 2018 in which the applicant’s solicitor and Deputy State Coroner were interviewed – whether podcast caused irremediable prejudice justifying permanent stay of proceedings – whether apprehended unfair consequences of pre-trial publicity / commentary are capable of being relieved against by directions to jury and other orders – whether applicant is irremediably prejudiced by an unreasonable delay in initiating the prosecution – whether police misconduct has caused incurable prejudice – whether decision to prosecute was influenced by pre-trial publicity and commentary, including by NSW Commissioner of Police – whether that amounted to an abuse of process justifying a permanent stay of proceedings

Legislation Cited:
Coroners Act 1980 (NSW) (repealed)
Courts Suppression and Non-publication Orders Act 2010 (NSW)
Criminal Procedure Act 1986 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Evidence Act 1995 (NSW)
Jury Act 1977 (NSW)
Police Regulation (Allegations of Misconduct) Act 1978 (NSW)

Cases Cited:
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hinch v The Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56
Jago v The District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46
Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28
R v Davis (1995) 57 FCR 521
R v Littler (2001) 120 A Crim R 512; [2001] NSWCCA 173
Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 272 A Crim R 69; [2018] HCA 53
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Tuckiar v The King (1934) 52 CLR 355; [1934] HCA 49
Volkers v R [2020] QDC 25

Category: Principal judgment
Parties: Christopher Michael Dawson (Applicant/Accused)
The Crown (Respondent)
Representation:
Counsel:
P Boulten SC (Applicant/Accused)
C Everson (Respondent/Crown)
Solicitors:
Greg Walsh and Co Solicitors (Applicant/Accused)
Office of the Director of Public Prosecutions NSW (Respondent/Crown)

File Number(s): 2018/372527
Publication restriction: Nil.

Judgment

The notice of motion and the evidence

On 3 April 2020, Christopher Dawson was arraigned on an indictment dated 30 March 2020 charging him with the murder of his then wife, Lynette Dawson, at Bayview in the State of New South Wales on or about 8 January 1982. On his arraignment he entered a plea of not guilty.
By a notice of motion dated 7 April 2020, Mr Dawson (the applicant) applies for an order that the indictment be permanently stayed on the following grounds:

The trial of the applicant will be productive of an injustice and incurable unfairness where the allegation of murder involves events which occurred in 1982.

The applicant will be severely prejudiced in his defence as a result of the contamination of evidence and/or collusion between the Crown witnesses.

The combination of delay and the contamination/collusion of Crown witnesses has prejudiced the applicant’s ability to defend the allegation of murder such that his trial will be so unfairly or unjustifiably oppressive that its continuation constitutes an abuse of process.

The evidence adduced on the application was voluminous. A supporting affidavit sworn by Mr Walsh, solicitor for the applicant, annexed five lever arch folders of material. The affidavit was read without objection. The material annexed to Mr Walsh’s affidavit included the brief of evidence served on the applicant following his extradition from Queensland under warrant on 6 December 2018. It also included the Crown case statement dated 23 April 2020 which was filed in this Court in accordance with the Crown’s obligations under s 142 of the Criminal Procedure Act 1986 (NSW).
The annexed material also included archived records of earlier investigations by NSW police, first into the disappearance of Lynette Dawson by the Missing Persons Unit in 1982 and then three successive police investigations into her suspected murder.
The first police investigation commenced in May 1990 and was suspended in May 1992. The officer in charge of the investigation was Detective Senior Constable Paul Mayger. It will be referred to in this judgment as “the Mayger investigation”.
The second police investigation commenced in July 1998 and continued from time to time until late 2014. The officer in charge of that investigation was Detective Senior Constable Damian Loone. That investigation was given the operation name “Luzon”. It will be referred to in this judgment as “the Loone investigation”. Detective Loone prepared a brief of evidence for the consideration of Acting Deputy State Coroner Jan Stevenson in February 2001 and a further brief of evidence for Deputy State Coroner Carl Milovanovich in February 2003.
Both inquests were terminated pursuant to s 19 of the Coroners Act 1980 (NSW) (since repealed) and the matter referred to the Office of the Director of Public Prosecutions (ODPP). In November 2001, and again in July 2003, the ODPP determined that there was insufficient evidence to support a prosecution of the applicant for murder.
The third police investigation commenced in July 2015. The officer in charge of that investigation was Detective Senior Constable Daniel Poole of the Unsolved Homicide Team. That investigation was given the operation name “Scriven”. It will be referred to in this judgment as “the Poole investigation”. That investigation culminated in a further brief of evidence being forwarded to the ODPP on 9 April 2018. Detective Poole’s investigation continued after that date. On or about 3 December 2018, the ODPP notified the NSW police of its decision to prosecute the applicant on indictment for the murder of Lynette Dawson. He was arrested under warrant from Queensland on 5 December 2018. A further seven statements were served as part of the brief of evidence after the ODPP determined the evidence was sufficient to support a prosecution for murder and after the applicant was arrested on that charge.
A large number of audio and video files were also tendered on the application, including each of the sixteen successive episodes and an additional “Special Update Episode” of a podcast entitled The Teacher’s Pet which was broadcast on various internet platforms between 18 May 2018 and 5 April 2019. The episodes were of varying lengths, between forty minutes and two hours. A full transcript of each podcast was also tendered, comprising a lever arch folder extending over 595 folio pages. Excerpts of an Australian Story episode entitled “Looking for Lyn”, broadcast on the ABC in August 2003, and excerpts of both A Current Affair dedicated to Lynette Dawson’s disappearance broadcast in October 2015 and 60 Minutes broadcast in September 2018 were also exhibited.
Finally, the applicant adduced oral evidence from six witnesses (of whom four are to be called in the Crown case at the applicant’s trial).^[1] It was agreed between the parties that Mr Boulten SC would be permitted to cross-examine the witnesses without the need for a grant of leave under s 38 of the Evidence Act 1995 (NSW). The Crown prosecutor’s cross-examination of the six witnesses followed Mr Boulten’s cross-examination.
1. Julie Andrew, Beverly McNally, Damian Loone and Daniel Poole will be called to give evidence in the Crown case at the applicant’s trial; Hedley Thomas and Rebecca Hazel will not be called.
The Crown did not call any additional oral evidence on the application. The Crown did, however, tender a number of documents, including the proposed Crown witness list,^[2] identifying each of the 41 civilian witnesses referable to their relationship with either the applicant or Lynette Dawson (or both); the date of their statement(s) and/or police interviews; whether they gave evidence at the second inquest and whether they were interviewed for the first time in the Poole investigation as a result of the broadcast of the podcast. There are five witnesses in the latter category. A further sixteen witnesses were identified as having given statements for the first time in the course of the Poole investigation.
2. Exhibit 12.

The applicant’s submissions in summary

In closing submissions, Mr Boulten refined and expanded the grounds upon which a permanent stay of the applicant’s criminal trial is sought. Although he did not formally abandon any of the three grounds in the notice of motion, or the submissions filed by Mr Walsh in support of those grounds, in final submissions grounds 1 and 3 attracted greater prominence, each of which was the subject of elaboration and refinement. Mr Thomas, as the co-producer and presenter of the podcast, was cross-examined by Mr Boulten about audio recordings of conversations he had with various people, including people who he must have understood would be Crown witnesses at any trial of the applicant.^[3] Although it appears that was done with a view to suggesting that he sought to influence them and any evidence they might ultimately give, after Mr Boulten’s cross-examination of Ms Andrew and Ms McNally, any suggestion that their evidence was influenced by their developing friendship with Mr Thomas was not the subject of closing submissions. Ultimately there was no submission advanced that there was any evidence of actual collusion or contamination of witnesses because of Mr Thomas’ association with any of the Crown witnesses he interviewed for the podcast.
3. A folio of these audio recordings with Mrs Jenkins were tendered in the application as Exhibits J1(5), J1(7), J1(16)-(27), J1(30).

The issue of delay

Mr Boulten’s closing submissions and the Crown’s submissions in reply were developed in the context of what the evidence revealed about the course of the criminal proceedings from May 1990, when the Mayger investigation commenced, to the applicant’s arrest on 5 December 2018 during the currency of the Poole investigation and thereafter as that investigation continued. Mr Boulten submitted that the cumulative inadequacies of successive police investigations into Lynette Dawson’s “disappearance”, in particular, a failure to investigate reported sightings of her in Gosford and Narraweena in 1982 and in Terrigal in 1987; a failure to trace her movements via two purchases of clothing by the tender of her Bankcard at shops on 12 and 27 January 1982; a failure to trace her whereabouts via an STD phone call she allegedly placed on 9 January 1982 to Northbridge Baths (a public tidal pool in Sydney Harbour); and a failure to trace phone calls to the family home in Bayview in the weeks that followed, are failures that cannot now be remedied, where banking and telephone records are no longer available and where material witnesses are deceased and that only a permanent stay can protect the applicant from an unfair trial: R v Littler (2001) 120 A Crim R 512; [2001] NSWCCA 173.
Mr Boulten submitted that the passage of 36 years between 8 January 1982 (the date upon which the applicant is alleged to have murdered his wife) and 5 December 2018 (when he was charged with her murder) constitutes an unacceptable delay which will, of itself, inevitably impact adversely on the fairness of his trial in ways that are incapable of practical remedy in the adversarial context of a criminal trial.
Mr Boulten emphasised that not only is the delay in the commencement of proceedings no fault of the applicant, but the previous decisions of the ODPP in 2001 and 2003 not to prosecute him, decisions which were confirmed in 2011 and 2012, have placed him at risk of being prosecuted for that offence at successive intervals and that, of itself, has been productive of significant oppression. Mr Boulten submitted both the length of delay per se and the oppression that it generates are factors which have a recognised and relevant bearing on the exercise of the discretion whether or not a permanent stay should be granted. Mr Boulten submitted that on this application they should be afforded preponderant weight.

Police misconduct

Mr Boulten also submitted that the conduct of Detective Loone, the officer in charge of the second homicide investigation, was both negligent and improper, in large part because of his fixed and tendentious view that the applicant had in fact murdered Lynette Dawson, when the proper focus of his investigation should have been into Lynette Dawson as missing or deceased. Mr Boulten submitted that Detective Loone deliberately acted in breach of his duty as a police officer to fully and fairly investigate all the circumstances bearing upon Lynette Dawson’s disappearance, including, but not limited to, the reported sighting of her after 8 January 1982, the date the applicant is alleged to have murdered her. Mr Boulten submitted that Detective Loone’s breach of duty has caused incurable prejudice to the applicant in the conduct of his defence: Littler at [25].

Pre-trial publicity / commentary

Finally, Mr Boulten submitted that the nature and extent of public commentary concerning Lynette Dawson’s disappearance and the nomination of the applicant as the person who killed her has caused the applicant significant unfairness. That commentary and publicity is not limited to the podcast, but also included the 60 Minutes and Studio 10 television programs broadcast on September and August 2018. Both programs endorsed the themes of the podcast and publicised Mr Thomas’ views about the applicant. Mr Boulten submitted, however, that it is the format, journalistic style, tone and content of the podcast itself which exposes the applicant to the risk of his trial being irredeemably unfair.
According to the evidence tendered on the application and accepted by the parties to be the best available evidence, the podcast was “downloaded” over 1 million times by listeners in “the Sydney region” (the presumed catchment of a jury pool for a trial of the applicant in Sydney) between May 2018 and July 2019 before Nationwide News Pty Ltd “took down” the podcast from The Australian’s website.^[4]
4. Affidavit of Angela Skocic dated 23 July 2020.
The applicant submitted the broadcasting of the podcast over successive months between May 2018 and December 2018, together with a follow-up episode in April 2019, and the fact that all sixteen episodes remain available on a variety of platforms readily accessible to the public, and with its potential impact on prospective jurors so obviously destructive of the applicant’s fundamental right to a fair trial, irrespective of the measures that this Court has available to protect him from its prejudicial effect, a permanent stay of his trial is the only effective remedy.
It is the applicant’s submission that the unqualified assumption that the applicant is guilty of murder as the dominating theme of the podcast is evident from the opening words of each episode:^[5]

HEDLEY THOMAS: This is episode … of The Teacher’s Pet. Listeners are advised, this podcast contains coarse language and adult themes. This podcast series is brought to you by the Australian …
NEWS PRESENTER: Lynette Dawson was reported missing by her husband, former Newtown Jets Rugby League star, Chris Dawson.
JC: He said, I was going to get a hit man to kill Lyn, and he rang me and said, Lyn’s gone. She isn’t coming back.
JULIE ANDREW: I just want justice, and I'd love her little girls to know she didn’t leave them.
5. See later at [234] where Mr Thomas is invited to explain why these words are used, and used repeatedly.

The narrative is then developed by Mr Thomas, as co-producer and presenter of the podcast, around the framework of what he pronounces as the failures and inadequacies of successive police investigations to gather evidence of the applicant’s guilt and the successive failure on the part of the ODPP to prosecute him for murder.
Mr Boulten also submitted that there is a real risk that the podcast has influenced prospective Crown witnesses, whether consciously or unconsciously, to reconsider their memories of events long past and to do so through Mr Thomas’ mindset, a mindset which Mr Thomas accepted in his evidence countenanced no scenario other than that the applicant was guilty of murder and that the applicant has told a succession of lies over many years to conceal his guilt.
Mr Boulten submitted that the risk of unfairness by reason of the publication of the podcast and the commentary it has generated is so pervasive, and its impact so difficult to accurately gauge, that it will be practically impossible to empanel a jury who will adhere to their obligations to determine whether the Crown has proved its case beyond reasonable doubt, and to do so strictly in accordance with the evidence adduced in the trial and in compliance with judicial directions, including the obligation of individual jurors to approach their consideration of the evidence by affording the applicant his entitlement to the presumption of innocence.
Mr Boulten submitted that by both the journalist and, by extension, Nationwide News as the publisher of the podcast, calling repeatedly for Lynette Dawson and her family to be afforded “the justice they deserve”, and then by enlisting Michael Fuller, the NSW Commissioner of Police, to their cause, was in serious derogation of the applicant’s right to be presumed innocent and for his trial to be conducted in a criminal court, not in the court of public opinion replete as that forum is with unqualified opinion and unregulated speculation, bias and prejudgment.

Abuse of process

Finally, Mr Boulten submitted that by the Commissioner of Police directing police officers under his command in August 2018, including Detective Poole, to meet with and cooperate with Mr Thomas in what had become by that date his (the journalist’s) persistent call for the applicant to be prosecuted, and then by the Commissioner of Police participating in the podcast whilst the ODPP was continuing to consider the sufficiency of the brief of evidence, should be interpreted by this Court as an improper attempt by the Commissioner to apply pressure to the ODPP to reverse its former decision(s) not to prosecute the applicant in a manner which was biased, improper and unfair, amounting to an abuse of process. Mr Boulten also submitted that the conduct of the Commissioner of Police in participating in the podcast has resulted in a particular and unique pressure being applied to any putative jury to convict the applicant, thereby unfairly and irredeemably prejudicing his right to a fair trial.

The authorities in summary and the parties’ reference to them in closing submissions

In developing his final submissions, Mr Boulten took the Court to a number of seminal High Court authorities where the principles according to which the Court’s inherent power to grant a permanent stay of criminal proceedings, and the grounds upon which that relief might be granted, are discussed, restated and applied.
It will be necessary to give close consideration to the various statements (and restatements) of principle in the authorities which have followed and applied Jago v The District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 when the High Court first had occasion to consider whether delay in the prosecution of a person charged with a serious criminal offence constituted grounds for a permanent stay of an indictment. It will also be necessary to give close consideration to The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 (and, more recently, Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20) where the High Court considered the circumstances in which adverse pre-trial publicity might give rise to such irremediable prejudice to an accused that an order for a permanent stay of their criminal trial is the only remedy against unfairness. The Court was also taken to the various statements of principle in Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 272 A Crim R 69; [2018] HCA 53 where the High Court revisited the bases upon which a permanent stay might be granted where it is said that the continuation of criminal proceedings will bring the administration of justice into disrepute such that to allow a trial to proceed would be an abuse of process.

It is, however, important at the outset to emphasise what is repeatedly restated in the authorities when the remedy of a permanent stay of criminal proceedings is under consideration. Although there is no definitive category of case where a permanent stay of proceedings will be ordered, a permanent stay of a criminal prosecution has been consistently treated as an extraordinary step for the Court to take, a step which at [106] in Strickland, Keifel CJ, Bell and Nettle JJ described as exceptional and rarely justified (see Jago 31, 34 per Mason CJ, 60 per Deane J, 76 per Gaudron J; Glennon at 605 per Mason CJ and Toohey J; Dupas at 250 [33]-[35]). In Strickland, their Honours went on to say at [106]:

There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute. (Emphasis added)

Mr Boulten submitted that this case is in that rare category of cases where a number of factors operate together such that there is nothing a trial judge could do in the conduct of the applicant’s trial to relieve against the unacceptable risk of unfairness and oppression. He submitted that even if the Court were satisfied that steps can be taken to protect against the risk of unfairness, or to relieve against the impact of oppression occasioned by a delay of 38 years in prosecuting the applicant for murder, whether by judicial direction or by evidentiary rulings or both, the conduct of Detective Loone as the officer in charge of the second homicide investigation between 1998 and 2015; and the conduct of the applicant’s former solicitor, Jeffrey Linden (now a Magistrate of the Local Court of NSW); and the conduct of a former judicial officer, Carl Milovanovich (now an Acting Magistrate of the Local Court of NSW), engaging in private and then public dialogue, via the podcast, with Mr Thomas about the applicant’s presumed guilt and their views about that fact, is such that the applicant’s trial would be an abuse of the Court’s process, in part because of the combined effect of their conduct in undermining public confidence in the administration of justice.
In short, Mr Boulten submitted that while any one of the separate grounds relied upon in support of a grant of a permanent stay (being an unreasonable delay in the prosecution of the applicant for murder, adverse pre-trial commentary and publicity and an abuse of process, in particular by the Commissioner of Police engaging with Mr Thomas to improperly influence those responsible at law for deciding whether the applicant was to be prosecuted for murder) would be sufficient for a stay to be ordered, in the particular circumstances of this case, those factors, in combination, lead inevitably to no other result.
In reply, the Crown submitted that the applicant has failed to discharge the heavy burden of persuading the Court to grant a remedy which will have the effect of the applicant securing immunity from prosecution. In the Crown’s submission, to grant the applicant a permanent stay of the indictment charging him with the murder of his wife would inevitably derogate from the substantial public interest in having those charged with the most serious of criminal offences being prosecuted at trial for that alleged offending.
The “theme” of the Crown’s submissions, as the Crown prosecutor described it, was that the various factors relied upon by the applicant as undermining his right to a fair trial, whether viewed individually or in combination, do not constitute “a fundamental defect going to the root of the trial” (Jago at 111), such that nothing a trial judge can do in the conduct of the trial will relieve against that unfairness. To the contrary, the Crown submitted that the legislative powers in s 68C of the Jury Act 1977 (NSW) designed to protect against jurors undertaking any independent enquiries and providing sanctions for breach of that prohibition, together with the collected experience of criminal courts that jurors are presumed to be capable, under direction from the trial judge, of confining their considerations to the evidence adduced at trial (Glennon at 614-615 per Brennan CJ), even in notorious cases where there has been substantial adverse pre-trial publicity (see Dupas and Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65), combined with the Court’s power to craft any number of procedural and evidential rulings to deal with the adverse impact of delay on the fairness of the trial, are such that the application for a permanent stay should be refused.
The Crown submitted that however undesirable any public commentary about an accused’s presumed guilt is, such commentary as was volunteered by Mr Linden (the applicant’s former solicitor), and Mr Milavanovich (the Deputy State Coroner who presided over the second inquest) in their interviews with Mr Thomas and then broadcast in the podcast, is not of sufficient seriousness that the continuation of the criminal proceedings, because of that commentary, is necessarily productive of an unacceptable risk of injustice or unfairness; neither would their commentary undermine public confidence in the administration of criminal justice such that a permanent stay should be granted on the basis of an abuse of the Court’s process.
The Crown further submitted that the limited circumstances identified in the authorities as having the potential to attract the inherent power of the Court to grant a permanent stay for abuse of process because of the conduct of the Commissioner of Police have not been shown to be present here.

The Crown case in summary

What follows is a summary only of the Crown case. However, in order to deal with the applicant’s contention that he is prejudiced by an unreasonable delay in initiating the prosecution, a submission in part based on Mr Boulten’s contention that the evidence assessed by the ODPP in 2001 and 2003, and then again in 2011 and 2012, as insufficient to support a prosecution did not change materially by 2018 when that decision was reversed, a review of the case the Crown intends to prosecute is unavoidable.
It is the Crown case that Lynette Dawson was murdered by the applicant, either alone or with the assistance of another person, some time after she was last seen at the Warriewood child care centre by Annette Leary on the afternoon of Friday 8 January 1982 and after she was last spoken to by her mother, Helena Simms, by telephone on the evening of 8 January 1982.
Lynette Dawson’s body has not been recovered and no human remains matching her have been located in the unidentified remains indexes of any Australian State or Territory.^[6] It is the Crown case that the applicant disposed of his wife’s body, possibly with the assistance of another person or people, at an unknown location after he killed her.
6. Statement of Daniel Poole dated 7 April 2017, [61]-[66].
The prosecution intends to rely upon a combination of facts and circumstances to establish beyond reasonable doubt the fact that Lynette Dawson is deceased and that the applicant murdered her.
The Crown acknowledges that in order to make that case it is obliged to exclude any reasonable hypothesis consistent with the applicant’s innocence, inclusive of the hypothesis that is inherent in the applicant’s account to various people after 9 January 1982, including to investigating police in May 1991, that he spoke to his wife after her “disappearance”, ultimately accepting her unilateral decision to leave him and their children and thereafter to assume a false identity to conceal her whereabouts from them and from her friends and family. The Crown also accepts the obligation of discounting any reasonable possibility that the various reported sightings of Lynette Dawson after 8 January 1982 are reliable and, in the case of a reported sighting by the applicant’s brother-in-law, Ross Hutcheon, around three to six months after Lynette Dawson’s “disappearance”, proving his claim to be deliberately false.^[7]

The marriage of the applicant and Lynette Dawson and the relationship between Lynette Dawson and her family

7. T 676.29.

As at 8 January 1982, Lynette Dawson was married to the applicant. They were married on 26 March 1970.^[8] For several years after their marriage Lynette Dawson underwent multiple medical procedures to enhance the prospects of pregnancy. At the time of the birth of their first daughter on 9 July 1977 the applicant and his wife were actively pursuing the possibility of adoption.^[9] A second daughter was born on 11 July 1979.^[10]
8. Crown case statement, [1].
9. Crown case statement, [14].
10. Crown case statement, [15].
Lynette Dawson had previously trained as a nurse at the Sydney Children’s Hospital and worked in various nursing roles between 1970 and 1977. After the birth of her second daughter, she worked at a child care centre in Warriewood, a neighbouring suburb to Bayview, where she was employed as a child care worker. Her registration with the NSW Nurses Registration Board was not current as at the date of her “disappearance”. It has not since been renewed.
In 1979, the applicant commenced work as a physical education teacher at Cromer High School, a suburb a short drive from Bayview.
As at 8 January 1982, the applicant, his wife and their two children, then aged two and four years, lived at the home they built at 2 Gilwinga Drive, Bayview (the Bayview property). The applicant’s twin brother, Paul Dawson, lived with his wife and children at 6 Gilwinga Drive, Bayview.
There is evidence from multiple sources that Lynette Dawson was directly and intimately involved in the design of the family home and its décor, and that she was a loving and attentive wife and a devoted mother to her two children. In December 1981, Lynette Dawson commissioned an artist to produce sketches of her children. The works were to be completed after Christmas that year, with payment on delivery. Around mid-January 1982, the artist, seeking to make contact with Lynette Dawson as her commissioning client, was told by the applicant that “Lynette has gone away and she doesn’t want [the sketches] anymore”.^[11]
11. Statement of Kristin Hardiman dated 17 December 2013, [13].
Lynette Dawson’s eldest daughter was due to commence school at the commencement of the 1982 school year. Lynette Dawson was said to be very excited at the prospect.
This evidence is part of a compendium of witness statements from Lynette Dawson’s friends and family members, each of whom will give evidence at the applicant’s trial of their relationship with Lynette Dawson, and each of whom will express their disbelief that she would desert her children and make no effort to contact them or to enquire of them, either directly or through friends or family, in the weeks, months and then years after 8 January 1982.
Lynette Dawson was also close to her four siblings and had a particularly close relationship with her mother who was due to turn 66 years of age on 6 February 1982. In December 1981, Lynette Dawson had arranged a surprise family party at her Bayview home in celebration of her mother’s birthday.
Lynette Dawson has made no contact, whether by telephone or by letter or via any third party, with her mother or any other family members at any time after her mother last spoke with her on the evening of 8 January 1982, despite having made arrangements that night for her mother to travel some distance by public transport from her home in Clovelly the following day in order to meet with her daughter, her granddaughters and the applicant (her son-in-law) at Northbridge Baths where the applicant worked as a lifeguard. Lynette Dawson did not attend at the Baths in accordance with those arrangements.

The time of the murder and lies told to conceal it

While the Crown is unable to appoint the time of Lynette Dawson’s death, it is the Crown case that she was not alive on the afternoon of 9 January 1982. It is the Crown case that the applicant’s claim to both his mother-in-law, Mrs Simms, and a family friend, Phillip Day, who had attended the Baths that day at the applicant’s invitation, that he received a phone call at the kiosk from his wife and that she would not be attending the Baths as arranged because she was with friends on the Central Coast is the first of a series of deliberate lies told by the applicant as part of a campaign of disinformation to attempt to innocently account for the sudden “disappearance” of his wife and to conceal the fact that he had killed her.^[12]
12. Crown case statement, [11].
It is the Crown case that the telephone call to the Northbridge Baths (if the call was in fact received as the applicant claims) was either opportunistically seized upon by the applicant as a ruse to conceal his wife’s death or the call was deliberately placed by a third person to allow the lie to be told.
The Crown also proposes to adduce evidence that the applicant’s claim that in the phone call his wife asked if Mr Day could drive Mrs Simms and his daughters to her home in Clovelly was also a lie, this time told to provide a basis for the children to be cared for by their grandparents, thereby allowing the applicant to pursue his desire to be with his teenage girlfriend, JC.

The motive for murder

It is the Crown case that the primary motive for murder was the applicant’s desire to maintain a sexual relationship with JC, a schoolgirl he met in 1980 while teaching at Cromer High School, and to marry her. A secondary motive is alleged to be the applicant’s desire to secure the interest in the property at Bayview, valued at $250,000 in December 1981, and to secure custody of his children. On or about 21 December 1981, the applicant retained a real estate agent to value the home at Bayview for an intended sale. The agency agreement was signed by the applicant but was not signed by Lynette Dawson.^[13] It is the Crown case that the agent was retained without Lynette Dawson’s knowledge. It is also the Crown case that the applicant sought legal advice from his brother, Peter Dawson, about the financial implications of a separation and, ultimately, a divorce from his wife and that he was told he would lose a significant proportion of the matrimonial property should he be the person to leave to marriage.^[14]
13. CB 2756.
14. Although Peter Dawson told police in March 1999 that he had given this advice he has since retracted it. The Crown has served a notice under s 38 of the Evidence Act 1995 upon him.
It is the Crown case that on 21 December 1981, the applicant left his wife and daughters intending to drive to Queensland with JC where they would commence a life together. However, after arriving in Brisbane they returned to Sydney at JC’s urging as she was having “second thoughts” about continuing her relationship with the applicant.
The applicant returned to Sydney on Christmas Day with JC but did not return to his family home. Instead he went to the home of his twin brother and asked his brother and sister-in-law not to reveal his whereabouts to his wife and children.^[15] Although the applicant returned to his family home the following day (Boxing Day 1981), he did not spend the New Year with his wife and children, apparently preferring the company of JC.^[16]
15. See transcript of Marilyn Dawson’s interview with police on 16 March 1999.
16. Statement of JC dated 18 September 2018, [77].

The relationship between the applicant and JC

The sexual relationship between the applicant and JC commenced in late 1980. She was aged 16. He was aged 33. Throughout that school year the applicant would see JC each day, often leaving notes in her schoolbag declaring his love for her and expressing a desire to marry her.^[17] JC was also invited by the applicant to the Bayview home on weekends, ostensibly to babysit his children. He invited her to move into the Bayview home permanently in October 1981 against his wife’s wishes.
17. Statement of JC dated 18 September 2018, annexures G, H, J, M and N.
Although the Crown intends to adduce evidence at the applicant’s trial that Lynette Dawson confided in some of her close friends that she had her concerns about the closeness of the relationship between the applicant and JC, and was very uncomfortable about JC living with them in the family home, she told them she trusted her husband.^[18] It is the Crown case, however, that in about October 1981 Lynette Dawson ultimately learnt first-hand of her husband’s infidelity when she found the applicant and JC in bed together at the family home. JC then left the family home at Lynette Dawson’s insistence and moved in with Paul Dawson and his family a few houses away. The sexual relationship between the applicant and JC continued uninterrupted for many months after that date. Although the relationship was apparently the source of very considerable marital disharmony, Lynette Dawson did not share with her mother or her siblings that her marriage was actually threatened by the applicant’s refusal to terminate his relationship with his teenage girlfriend. She did confide in friends and work colleagues that the marriage was unstable but that she believed it was retrievable and that her husband would not leave her.^[19]
18. Statements of Anna Grantham dated 23 September 1998, [13]; Julie Andrew dated 15 November 2018, [14].
19. Statements of Julie Andrew dated 2 May 1999, [7]; Anna Grantham dated 23 September 1998, [8]; Sue Strath dated 22 September 1998, [4]; Annette Leary dated 9 December 2000, [6].
It would also appear that while the relationship between the applicant and JC was not clandestine, it was not something that Lynette Dawson’s siblings were aware of. The Crown asserts that the applicant was held in the highest esteem by Mrs Simms in particular and that Lynette Dawson may not have wished her mother or her siblings to think any less of the applicant, despite his obvious disregard for his marriage, in the hope that their marriage would survive.
The applicant’s brother and his wife were, however, aware of the relationship and either tacitly or actively condoned it. On occasions throughout 1981, the applicant and JC visited as guests in their home with the two couples socialising together on occasions. JC’s mother and her sisters were also aware of the relationship and it was common knowledge at Cromer High School (including amongst the teaching staff) that the applicant and JC were in a sexual relationship.

Evidence of marital discord

The Crown also intends to adduce evidence at the applicant’s trial of disharmony in the applicant and Lynette Dawson’s marriage even predating the commencement of the applicant’s relationship with JC, including evidence from a number of people who witnessed the applicant being physically and verbally abusive towards his wife (invariably within the confines of the family home, including the backyard) and from other witnesses to whom Lynette Dawson complained of his physical abuse of her, some of whom saw evidence of residual bruising.^[20]
20. Statements of Roslyn Mcloughlin dated 14 May 1999; Annette Leary dated 9 December 2000; Karen Frater dated 22 March 2017.

While the fact of mounting marital discord, culminating in the applicant’s sustained sexual obsession with JC from late 1980, was a matter police were aware of after JC’s separation from the applicant in 1990 and the revelations she made at that time which precipitated the first police investigation into Lynette Dawson’s suspected homicide (the Mayger investigation), the full extent of the physical violence Lynette Dawson was subjected to, and the time over which it extended before 8 January 1982, has only become known to police in recent times. It was not something police were aware of between 1982 and 1990 when Lynette Dawson was treated by police as a missing person who did not wish to be found. One witness to domestic abuse predating Lynette Dawson’s disappearance by some years gave a statement to police on 28 May 2018 during the broadcast of the podcast.^[21]
21. Exhibit 8. Ms McNally gave evidence that an earlier report she made to Crime Stoppers a few years after Lynette Dawson’s disappearance had not been acted upon (see T 422).

The allegation that the applicant spoke of contracting a “hit man”

The Crown also intends to adduce other evidence of the animus the applicant felt towards his wife to the extent that in 1975^[22] and then again in 1981^[23] he spoke openly of contracting a “hit man” to have her killed. This evidence, from two independent sources, is the subject of very considerable contest. It is the applicant’s case that both accounts are deliberate fabrications.
22. Statement of Robert Silkman dated 9 November 2018, [8].
23. Statement of JC dated 17 May 1990, [5].
Despite the applicant’s alleged musing about contracting a person to kill his wife being given considerable prominence in the podcast, it is not the Crown case that the applicant in fact contracted a person to kill his wife or that she was murdered under contract. The evidence of the applicant speaking about contracting a person to kill his wife is to be adduced at the applicant’s trial as tendency evidence. A tendency notice has been served in accordance with s 97(1) of the Evidence Act. The evidence of the applicant musing about a “hit man” is relied upon by the Crown not as evidencing a tendency in him to be violent towards his wife but as a manifestation of his animosity towards her. The evidence of various witnesses who were told by Lynette Dawson of the applicant’s mistreatment of her and others who noted frank evidence of bruising on multiple occasions is also relied upon by the Crown as tendency evidence.^[24]
24. Beverly McNally, Anna Grantham, Julie Andrew, Judith Solomon, Karen Frater, Roslyn McLoughlin, Merilyn Simms, Helena Simms, Patricia Jenkins, Coral Clarke, JC, Robert Silkman and SW.

Where was JC when Lynette Dawson was murdered?

It is no part of the Crown case that JC was complicit in Lynette Dawson’s murder. At the time of Lynette Dawson’s “disappearance” (on the Crown case the time of her murder) JC was staying with friends and family at South West Rocks. The Crown proposes to adduce evidence from JC that she left Sydney after 1 January 1982 without the applicant in order to reflect upon her relationship with him and to give consideration to terminating it, having become increasingly concerned about the degree of control the applicant was exerting over her.^[25] It is the Crown case that this caused the applicant very considerable anxiety and that he saw his wife as an impediment to pursuing his relationship with JC (to whom he had proposed marriage). As noted above, it is the Crown case that his obsession with JC, his fear of losing her and the impediment his wife posed to pursuing that obsession ultimately motivated him to murder her.
25. Statement of JC dated 17 May 1990, [3]; transcript of JC’s interview with police on 27 July 1998, 19; statement of JC dated 18 September 1998, [48].

The last confirmed evidence of Lynette Dawson being alive

A colleague of Lynette Dawson’s at the child care centre, Annette Leary, recalled Lynette Dawson telling her of her attendance with the applicant at a marriage counselling session.^[26] Ms Leary believes that was the last time she saw Lynette Dawson. At the time she noticed “faint bruising on one side of [Lynette Dawson’s] neck”.^[27] Another worker at the child care centre asked how she had sustained the bruising. Lynette Dawson said that when she and the applicant were alone in the lift en route to the marriage guidance counsellor, the applicant had put his hands around her throat, started to shake her and said, “I’m only doing this once and if it doesn’t work I’m getting rid of you”.^[28]
26. It is common ground that this was on the afternoon of 8 January 1982.
27. Statement of Annette Leary dated 9 December 2000, [7]. (Other evidence in the Crown case would tend to support this occasion as 8 January 1982.)
28. Statement of Annette Leary dated 9 December 2000, [7].
This evidence is relied upon by the Crown as evidence of the applicant’s lack of any genuine commitment to his marriage as at 8 January 1982 and evidence of his persisting determination to be “rid” of his wife to allow him unrestrained access to JC and to marry her. It is the Crown case that the applicant’s account to police when he was interviewed in January 1991 to the effect that after the marriage guidance session he remembered “thinking that our marriage was going to be sort of, our problems were going to be resolved and things were going to work out”, but that his wife was negative, saying “[t]he fellow’s seeing you as the good guy and blaming it all on me ‘cause my family background isn’t as happy as yours” and then, earlier in the interview, that when his wife left he was “very anxious” for her to return “to work things out”, were lies.^[29]
29. Transcript of the applicant’s interview with police dated 15 January 1991, Q36, Q54, Q55.
In the course of the interview he also told police that after the initial phone call from his wife at the Northbridge Baths on 9 January 1982 and over subsequent weeks when he received a number of further phone calls from her, she said she needed extra time away to sort herself out. He said after the last phone call on 15 January 1982 she said she did not know if she would be returning at all. The applicant also claimed that Ian Kennedy, a police officer friend of his, had made enquiries as to the whereabouts of his wife and in 1985, at a Sydney Boys High School reunion, Mr Kennedy told him he had heard his wife was in New Zealand. The Crown intends to call evidence from Mr Kennedy that he made no such claim.
It is the Crown case that the applicant murdered his wife on the evening of 8 January 1982 following the marriage guidance counselling session (after Lynette Dawson spoke with her mother by telephone, apparently believing, or being led to believe by the applicant, that the session had been a success) or the following day, 9 January 1982, before he started work at Northbridge Baths.

JC becomes the applicant’s de facto wife

Within days of 8 January 1982 (on the Crown case no later than 14 January 1982), at a time when the applicant was explaining his wife’s absence to others on the basis of her desire to have some “time on her own”, he travelled to South West Rocks to collect JC who soon thereafter moved permanently into the family home at Bayview where she lived as the applicant’s de facto wife until they married in January 1984.^[30]
30. This timeline is contested by the applicant in his 1991 interview. Any reference to JC is omitted altogether from the Antecedent Report of August 1982.
The Crown intends to adduce evidence from JC that the applicant telephoned her while she was at South West Rocks and said, “Lyn’s gone, come back and stay with me, come back and be with me, I need you”. JC will give evidence that the applicant told her that he believed his wife had left him and her children to join a religious sect.
After moving into the Bayview home, JC saw that Lynette Dawson’s clothing, jewellery and other personal effects had been left. She will also give evidence that within a period of months (namely, by 31 October 1982) Lynette Dawson’s clothing was bundled into plastic bags and delivered to the applicant’s mother-in-law and that Lynette Dawson’s wedding rings were refashioned as wedding rings for JC to wear.^[31] JC will also give evidence that on one occasion when she was together with the applicant at the Bayview property he took a phone call and, although she did not hear any of the conversation, the applicant later told her that it was Lynette on the phone and that she was with friends, she was happy and well, she was not coming back and that no one was to worry about her. The applicant did not suggest she made any enquiries of her children.^[32]
31. Mrs Simms’ diary.
32. Statement of JC dated 17 May 1990, [9].

The Family Court proceedings in 1983

In April 1983, the applicant commenced proceedings in the Family Court of Australia for the dissolution of his marriage to Lynette Dawson, an order granting him full custody of the children and for the transfer to him of his wife’s interest in the matrimonial property on the basis of her desertion. Orders for substituted service were made. The process was served upon Mrs Simms by the applicant’s solicitor, Mr Linden.
Mr Thomas solicited an interview with Mr Linden in 2017 in the preparation for the podcast in the course of which Mr Linden expressed his doubts about Lynette Dawson’s so-called “disappearance”. That interview was included in the podcast and broadcast as part of episode 4, entitled “Soft Soil”. It will be discussed in detail later in this judgment.

The applicant reports his wife “missing”

On 18 February 1982, the applicant reported to NSW police stationed at Mona Vale that his wife, Lynette Dawson, was missing. A Missing Person Report was activated at that time. The applicant informed police that he had last seen his wife at about 7am on 9 January 1982 as he dropped her off at a bus stop a short distance from their home to go shopping in Chatswood. He told police that they had plans to meet at the Northbridge Baths that afternoon for lunch with their two small children and that his wife had also made arrangements for her mother to travel from her home in Clovelly to join them at the Baths. He told police that whilst he was at the Baths he was notified by somebody working in the kiosk that there was a phone call for him. He said the STD call was from his wife who informed him that she was with friends on the Central Coast and needed some time away to sort things out. He told police that his wife had telephoned him on two further occasions, 10 and 15 January 1982, but he had not heard from her since. He told police that none of her family members, including her mother, had been in contact with his wife either in person, by telephone or by letter and that none of her friends of whom he had made enquiries had any knowledge of her whereabouts. He also told police that he had collected a Bankcard statement from his wife’s employer, Barbara Cruise, and that there was an entry for 12 January 1982 showing a purchase made from Katies at Narrabeen and an entry for 27 January 1982 showing a purchase from Just Jeans at Narrabeen.
Neither the Bankcard statement, any banking records relating to Lynette Dawson’s Bankcard account held with the Commonwealth Savings Bank at Narrabeen, nor sales records from either of the retail stores nominated by the applicant as the stores from which purchases were said to have been made by his wife are currently available to be produced by the Crown at the applicant’s trial.^[33]
33. Statement of Daniel Poole dated 7 April 2017, [47]-[56].
Insofar as concerns the Bankcard statement sent to the Warriewood child care centre (the address Lynette Dawson nominated when she opened the account to conceal it from the applicant) and collected by the applicant from Ms Cruise when she alerted him to its arrival, no statement was taken from Ms Cruise until 1998, 16 years later, during the Loone investigation.^[34] At that time Ms Cruise told Detective Loone that she opened the statement and, having reflected on it before being interviewed, said if she had seen a purchase that “would alert me to where [Lynette Dawson] might have been or anything … I would have remembered that”.^[35]
34. Barbara Cruise was spoken to by Mr Mayger but he has no recall of what she said or whether a statement was taken from her (see later at [171]).
35. Transcript of Barbara Cruise’s interview with police on 12 August 1998, Q25. She was not invited to comment upon that further in her evidence at the second inquest in 2003.
The Missing Person file held at the Mona Vale police station was updated from time to time between February 1982 and June 1989 in accordance with the police protocols that applied at that time for dealing with persons reported as “missing”.^[36] Official enquiries were made by police of various entities with a view to determining Lynette Dawson’s whereabouts without success. In the running sheet/occurrence pad maintained at the time, these included enquiries into “Bankcard, medical funds, nurses reg[istration] boards”, the Department of Motor Transport, the Central Names Index, social security and “birth checks”.
36. See later at [129].
The applicant made contact with Mona Vale police for a period of months in 1982 after making the initial Missing Person report, after which Mrs Simms was the person who was in regular contact with police. Over a number of years, she reported that despite repeated efforts to contact her daughter, or to discover her whereabouts both within NSW and interstate, her daughter had made no contact with her or any member of the family either by telephone or by letter or through any third party.
Although there were a number of reported sightings of Lynette Dawson from some time in February 1982 at Gosford through to 1987 at Terrigal noted in the Missing Person file, it would appear that no one who claimed to have seen Lynette Dawson (or the person they thought was Lynette Dawson) spoke with the woman to verify her identity. Collateral enquiries by Mrs Simms at Terrigal in 1987 did not confirm her daughter’s presence in the area.
It is the Crown case that other purported sightings of Lynette Dawson by witnesses who have been interviewed in the course of the Poole investigation are unreliable. In neither case was the person believed to have been Lynette Dawson spoken with to confirm that fact and no collateral enquiries confirmed she was or might have been alive at any relevant time.
In short, it is the Crown case that after successive police investigations over more than three decades into Lynette Dawson’s “disappearance”, commencing with an enquiry by the Missing Persons Unit in 1982 and ending in a third police investigation into her suspected homicide which culminated in the presentation of a reformulated brief of evidence to the ODPP in April 2018, all enquiries of relevant government and non-government agencies have reported no records or indications of her being alive after 8 January 1982, whether under her own name or any changed name.^[37]
37. Statement of Daniel Poole dated 13 January 2017, [61]-[74].
It is the Crown case that a tribunal of fact will be satisfied beyond reasonable doubt that Lynette Dawson is deceased. Further, it is the Crown case that the applicant’s demonstrated motive to murder her, his opportunity to do so on the evening of 8 January 1982 and into the morning of 9 January 1982, coupled with the deliberate lies he told police in August 1982 about his relationship with JC, even if by omission, and his conduct generally after his wife’s “disappearance” as evidence of a consciousness of guilt, will persuade a tribunal of fact beyond reasonable doubt that Lynette Dawson is deceased and that the applicant murdered her.

Police murder investigations and decisions of the ODPP not to prosecute the applicant for murder

The Mayger investigation

It was not until May 1991 when Detective Senior Sergeant Geoffrey Wright and Detective Senior Constable Paul Mayger (as they were then known) of the Major Crime Squad (North) were appointed to investigate Lynette Dawson’s disappearance that police officially suspected that she was a victim of homicide. That investigation was precipitated by JC (at that time the applicant’s wife from whom she had recently separated) speaking with Joe Parrington, a Criminal Justice Staff Officer and a friend of JC’s father, about the circumstances of Lynette Dawson’s disappearance.
On 15 May 1990, Mr Parrington contacted the Regional Crime Squad Chatswood and provided them with the information that he had been given by JC. JC made her first statement to police two days later. The applicant was interviewed in January 1991.
The Mayger investigation was suspended in May 1992. No brief of evidence was submitted to the Coroner.

The Loone investigation

On 28 July 1998, Detective Senior Constable Loone was appointed to reinvestigate the suspected murder of Lynette Dawson and to prepare a brief for the Coroner at the direction of Acting Inspector Hulme. That investigation was initiated in response to one of Lynette Dawson’s friends, Sue Strath (nee Browett), a friend of Inspector Hulme, being insistent that Lynette Dawson did not unilaterally leave her home and her children but that the applicant was implicated in her “disappearance”. In February 1985, during the eight years Lynette Dawson was treated as a “missing person” by the Missing Persons Unit, Ms Strath lodged a formal complaint with the NSW Ombudsman about what she considered were the inadequacies of the investigation into Lynette Dawson’s disappearance. Ms Strath was apparently undeterred by the complaint not being investigated further and ultimately persuaded Inspector Hulme to initiate a formal police investigation.^[38]
38. Sue Strath’s letter to the NSW Ombudsman received on 5 February 1985.
The investigation by Detective Loone culminated in the preparation of two briefs of evidence submitted to the NSW Coroner. Two coronial inquests were convened on the basis of the Loone investigation: the first in February 2001 at the Glebe Coroners Court; the second in February 2003 at the Westmead Coroners Court.
At the time of both inquests, the Coroners Act 1980 was the governing legislation. Section 13 gave the Coroner jurisdiction to investigate the death, or the suspected death, of a person. Where a person is missing and believed to be deceased, the police officer in charge of the investigation must report the suspected death to the Coroner upon being satisfied that no further enquiries can usefully be made as to whether a missing person is alive or deceased. Section 31(a) provided that the Coroner may examine on oath all persons “who tender evidence relevant to the inquest or inquiry”.

The first inquest

On 28 February 2001, Detective Loone gave evidence before Acting Deputy State Coroner Stevenson as the officer in charge of the investigation into the disappearance and suspected death of Lynette Dawson. The police brief of evidence was tendered through him. It comprised:

Statement of Detective Senior Constable Loone

Statement of JC

ERISP – JC

Statement of Helena Simms (mother of Lynette Dawson)

ERISP – Patricia Jenkins (nee Simms, sister of Lynette Dawson)

ERISP – Phillip Simms (brother of Lynette Dawson)

ERISP – Charles Simms (brother of Lynette Dawson)

ERISP – Merilyn Simms (sister-in-law of Lynette Dawson)

ERISP – Father of JC

ERISP – Nicole Graham (sister of JC)

ERISP – Marilyn Dawson (sister-in-law of Lynette Dawson)

ERISP – Paul Dawson (brother of the applicant)

ERISP – Neville Johnston (previous owner of 2 Gilwinga Drive)

ERSIP – Pamela Eckford (women’s refuge)

ERISP – Barbara Cruise (co-worker of Lynette Dawson)

ERISP – Interview with the applicant, Det Sgt MA

Statement of Roslyn McLoughlin (friend of Lynette Dawson)

Statement of Craig Norris (at South West Rocks with JC)

Statement of Robyn Warren (friend of Lynette Dawson)

Statement of Bronwyn Boyer (school student)

Statement of Vanessa Worrall (at South West Rocks with JC)

Statement of Anna Grantham (co-worker of Lynette Dawson)

Statement of Julie Andrew (neighbour of Lynette Dawson)

Statement of Barbara Kilpatrick (women’s refuge)

Statement of Sue Strath (co-worker of Lynette Dawson)

Statement of mother of JC

Statement of Gregory Hall (previous owner of 2 Gilwinga Drive)

Statement of Christine Hill (previous owner of 2 Gilwinga Drive)

Statement of Detective Sergeant Mark Messenger

Statement of Belinda Jane Perry (nee Curtis)

The matter was considered on the papers. The inquest was terminated by Magistrate Stevenson on the same day and the matter referred to the ODPP pursuant to s 19 of the Coroners Act.
Section 19 of the Coroners Act provided that if, at any time during the course of an inquest, the Coroner is of the opinion that the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence and that there is a reasonable prospect that a jury would convict the known person of an indictable offence which includes the question whether the known person caused the death or suspected death, the Coroner must terminate the inquest. The depositions taken at the inquest (if any) together with a statement signed by the Coroner specifying the name of the known person and the particulars of the offence(s) that person is suspected of committing are forwarded to the ODPP.

The first decision of the ODPP not to prosecute the applicant for murder

On 12 November 2001, the then DPP, Nicholas Cowdery AM QC, formally notified his decision not to prosecute the applicant for the murder of Lynette Dawson.^[39] Although there was no correspondence tendered to reflect that determination, in the ABC broadcast of Australian Story in 2003, Mr Cowdery was interviewed and elaborated upon the basis for his decision. In short, Mr Cowdery said:^[40]

I was looking at whether or not there was a reasonable prospect of convicting somebody of homicide. Without a body, without knowing first of all whether in fact she is dead. Without knowing secondly if she is dead, how she died, it is very hard to mount a case of a reasonable prospect of conviction just on motive, and the undefined existence of means and opportunity. That makes it very weak.
39. Affidavit of Greg Walsh dated 15 May 2020, [466].
40. Exhibit AP.

On 5 December 2001, Wendy Jennings, Lynette Dawson’s cousin, wrote to Morris Iemma MP raising her concerns about the decision not to prosecute the applicant for murder.^[41] On 14 May 2002, the Deputy DPP, Roy Ellis, wrote to Ms Jennings informing her that:^[42]

… very careful consideration was given to all the available evidence in this case but ultimately that material, in terms of its evidentiary value, proved insufficient to establish a case of murder against Mr Dawson. It was for that reason that no ex officio indictment was filed.
41. Affidavit of Greg Walsh dated 15 May 2020, [467].
42. Affidavit of Greg Walsh dated 15 May 2020, annexure GW1, 145.

Mr Ellis also confirmed that “cost considerations” had no bearing on the decision.

The second inquest

On 24 February 2003, a further brief of evidence was submitted by Detective Loone to the Coroners Court. Pursuant to s 23A of the Coroners Act, a fresh inquest must be held into a death or suspected death if an application for a fresh inquest is made, and

(b) on the basis of the application, the State Coroner is of the opinion that the discovery of new evidence or facts makes it necessary or desirable in the interests of justice to hold a fresh inquest …

An application can only be made by a police officer or a person who was granted leave to appear at a previous inquest or by a person who was represented at a previous inquest (s 23A(2)).
A second inquest into Lynette Dawson’s presumed death was convened before the then Deputy State Coroner, Magistrate Milovanovich, at the Westmead Coroners Court. Eighteen witnesses gave evidence at the inquest. In addition to the evidence tendered at the first inquest, the following statements were tendered:

Statement of Constable Karen Dawson from the Missing Persons Unit

Statement of Katrina Ginns

Statement of Senior Constable Gibbs

Statement of Annette Leary

The following witnesses gave evidence and were cross-examined by the applicant’s brother, Peter Dawson, who represented the applicant’s interests at the inquest with the leave of the Coroner:

JC

Nicole Graham (nee Curtis)

Belinda Perry (nee Curtis)

Vanessa Worrall

Craig Norrish

Barbara Cruise

Anna Grantham

Sue Strath (nee Browett)

Annette Leary

Roslyn McLoughlin

Robyn Warren

Phillip Day

Patricia Jenkins

Gregory Simms

Merilyn Simms

Ray Butlin

Leanne Butlin

Damian Loone.

On 28 February 2003, the second inquest was terminated by Magistrate Milovanovich in accordance with s 19 of the Coroners Act and the matter referred to the ODPP.

The second decision of the ODPP not to prosecute the applicant for murder

On 30 July 2003, the ODPP notified Ms Jennings of the decision not to find a bill to prosecute the applicant for the murder of Lynette Dawson.^[43] That correspondence, signed by J Wallace for the DPP, Mr Cowdery, reads as follows:

I have been asked to inform you that, after very careful consideration of all the available information obtained by Police in the course of their investigations and of the evidence heard before the Coroner in February and March 2003, and at the earlier inquest in 2001, the Director has determined that there is insufficient evidence to support any criminal charge against any person in connection with the disappearance of Lynette Joy Dawson in 1982.
In the Director’s view, the second inquest has not strengthened the case against any person beyond that which existed when a charge was declined to be ordered on 12 November 2001.
43. Affidavit of Greg Walsh dated 15 May 2020, annexure GW1, 152.

Between July 2003 and July 2015, Detective Loone continued to investigate the suspected murder of Lynette Dawson, including in May 2009 by submitting a woman’s cardigan found at the Bayview property during an excavation in 2000 (prior to the first inquest) for a DNA examination. Those enquiries did not generate any evidence probative of the applicant’s guilt or the fact that Lynette Dawson was murdered or deceased.
On 24 April 2012, Detective Loone met with the Deputy DPP, John Pickering, the Minister of Police’s Chief of Staff, Brad Cutell, and John Lehman from the Homicide Squad.^[44] Detective Loone gave evidence that he believed the meeting was prompted by the family of Lynette Dawson writing a letter to their local member about the matter. That would seem to be a reference to Ms Jenning’s letter to Mr Iemma.
44. T 299-301.
On 4 May 2012, Rebecca Hazel interviewed Detective Loone for her book. According to Ms Hazel’s notes of the interview, Detective Loone told her that at the meeting in April 2012, “the DPP admitted they didn’t handle [the case] very well” and said they should have been more open with him. However, in his evidence Detective Loone clarified that the “apology” he received from Mr Pickering at the meeting was about the poor communication that had occurred between the DPP and the police in relation to the Lynette Dawson investigation and not an apology because a decision was made not to prosecute the applicant. In cross-examination, he said:

Q. Was there anything said at the meeting to suggest that they had changed their mind at the DPP about prosecuting the case?

A. No.

Q. Okay, so Mr Pickering made it plain that the only shortfall really was in the messaging rather than in the substance of the decision‑making?

A. That’s correct.

According to Detective Loone, he was also told at the April 2012 meeting that the reward for information leading to the conviction of a person for the murder of Lynette Dawson would be increased. On 21 September 2010, a reward for $100,000 had been announced by NSW police. On 23 January 2014, the reward was increased to $200,000.

The DPP is invited to reconsider the decision not to prosecute the applicant for murder

In December 2010, in August 2011 and again in November 2011, the ODPP confirmed in correspondence with Lynette Dawson’s sister, Patricia Jenkins, that in the view of the ODPP there remained insufficient evidence to prosecute the applicant for murder. In the first letter, Mr Cowdery personally responded to a letter sent by Mrs Jenkins on 16 November 2010 in which she sought clarification as to whether a suggestion that Mrs Simms (by that date deceased) had personally seen Lynette Dawson after she was “missing” was a “telling factor” in the decision not to prosecute. Mr Cowdery responded as follows:^[45]

If it was your understanding that your late mother, Mrs Helena Simms, claimed to have herself seen Lynette after her disappearance, then that understanding is erroneous according to my information.
It was the case that your later mother advised police of two sightings of Lynette which had been reported to her. The first was at a fruit stall on the way to Gosford and the second was at the Narraweena shops. It was never the case that Mrs Simms claimed to have sighted Lynette herself.
The above sightings were only one of a myriad of factors which were considered by me when reaching my decision that there was insufficient evidence to lay charges against Mr Dawson. It was not a “telling factor”.
I regret if some misunderstanding has arisen in this particular aspect of the matter.
45. Affidavit of Greg Walsh dated 15 May 2020, annexure GW1, 153.

Mrs Jenkins sent a further letter to the ODPP in June 2011 which was responded to by Christopher Maxwell QC, the then Acting DPP on 3 August 2011.^[46] Lloyd Babb SC was appointed DPP in July 2011, replacing Mr Cowdery upon his retirement. The fact that Mr Maxwell responded to Mrs Jenkins’ letter is significant.
46. Exhibit S; affidavit of Greg Walsh dated 15 May 2020, annexure GW1, 154.
On 14 October 2011, Mr Babb formally notified Greg Smith, the NSW Attorney General, that:

I have found it necessary not to play any part in the consideration of this matter myself for the reason that I am acquainted with the suspect in that he was a school teacher at my high school and my rugby league coach in about 1983.
For this reason this matter has been considered by Mr Chris Maxwell QC, Acting Deputy Director.

Episode 13 of the podcast commenced with Mr Thomas informing Mrs Jenkins that Mr Babb had been the school captain in 1984 of a school where the applicant was a teacher. Mr Thomas then told her of his resolve to confront Mr Babb with the circumstances in which, as Mr Thomas put it, “there was a question of disclosure”. It will be necessary to refer further to Mr Thomas’ treatment of this issue in the podcast.
Mr Maxwell’s letter read as follows:

I note that you have sought my advice as to why this Office has declined to have a meeting with Police in this matter.
As you appear to be aware, Detective Sergeant Loone forwarded further material to this Office for consideration in March 2011. At that time this Office again carefully considered whether any charges should be laid against any person in relation to the disappearance of Lynette Dawson. At that time the Acting Director determined that, taking into account of the material received, there remained insufficient evidence to lay a charge. The view taken at that time was that it appeared all relevant material, required to assist this Office in making that decision had been provided by Detective Sergeant Loone, and therefore a conference would not assist this Office in determining whether any charges should be laid against any person. It should be noted that this Office had the benefit of full and detailed submissions by Sergeant Loone.
At that time, and more recently, police were invited to submit any further material to this Office for consideration. No further material was submitted.
The decision to prosecute or to decline to prosecute is also made by the Director in accordance with the Director’s Guidelines and with regard to the available evidence. I refer to the test applied in this case, as in all cases, namely that:
The question whether or not the public interest requires that a matter be prosecuted is resolved by determining:
(1) whether or not the admissible evidence available is capable of establishing each element of the offence;
(2) whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury properly instructed as to the law.

In this case this Office has, on a number of occasions, carefully considered the evidence that has been provided. The further material recently provided by Detective Sergeant Loone has also been carefully considered. However, based on the presently available evidence, this Office is of the view that there is insufficient evidence to satisfy a jury properly instructed that a particular person was responsible for the disappearance and/or death of Mrs Lynette Dawson.
That there be justice for all of the stakeholders in our system is at the forefront of any decision that is made by this Office. This matter has been extensively considered and the decision made with strict adherence to the Guidelines. If there is insufficient evidence to proceed, as is the case here, then it would be unjust and not in the public interest to commence any prosecution.
I note that you have sought my advice as to why this Office has declined to have a meeting with Police in this matter.

On 21 November 2011, Deputy DPP Keith Alder responded to a further letter from Ms Jennings in the same terms as Mr Maxwell’s correspondence.^[47]
47. Exhibit S; affidavit of Greg Walsh dated 15 May 2020, annexure GW1, 162.

The Poole investigation

In July 2015, Detective Poole of the Unsolved Homicide Team was appointed officer in charge of a further investigation into Lynette Dawson’s suspected murder. Detective Poole undertook a thorough review of all existing records and undertook further investigations of the Commonwealth Bank for any records relating to Lynette Dawson and enquiries of the merchants at the Warriewood shopping centre where it is said (by the applicant on the Crown case) that Lynette Dawson made purchases in January 1982.^[48] Further enquiries were also made of the Forensics and Analytical Science Service in relation to any scope for further testing of the cardigan unearthed at the Bayview property in 2000. Those enquiries proved unsuccessful.^[49] Enquiries were also made of people associated with the Northbridge Baths, together with a range of enquiries and searches of departmental and other agencies in what have since become known as “proof of life checks”.^[50]
48. Statement of Daniel Poole dated 7 April 2017, [48].
49. Statement of Daniel Poole dated 7 April 2017, [5].
50. Statement of Daniel Poole dated 7 April 2017, [62]-[73].
Detective Poole also inspected the files retained at the Coroners Court in relation to the 2001 and 2003 inquests and reviewed files held at the Missing Persons Unit. A formal request was submitted to NSW police records for any documents held in relation to other police investigations into Lynette Dawson’s disappearance. The file in relation to the complaint made to the NSW Ombudsman by Ms Strath in 1985 was retrieved. It contained the applicant’s “Antecedent Report”. It is unclear whether it was a copy of the document Mona Vale police requested the applicant to provide as a “profile report” in August 1982.^[51] Neither the original nor a copy of the document was held in the Missing Person file.
51. See later at [153]-[154].
Enquiries were conducted by Detective Poole in January 2017 in an effort to locate the person named by the applicant in the Antecedent Report as a police officer who had been advising him on procedure. That officer died on 11 September 2015.
Additional records relating to the Mayger investigation were also located by Detective Poole, including a Case Management Report which indicated that Detective Mayger had apparently sought advice from the Coroner’s Office in 1991. While the nature of the advice sought is not clear, it is likely to be whether, in the view of the Coroner, an inquest should be convened. Detective Poole’s enquiries of the NSW Coroners Court did not locate any documents that reflect any advice was sought or provided. The only records related to the first and second coronial inquests in 2001 and 2003. The Case Management Report also indicates that enquiries were made between June 1990 and May 1992, after which the investigation was “suspended”.
Detective Poole corresponded with Mr Mayger (then retired) and a statement was taken from him.
On 20 April 2017, Detective Poole forwarded a brief of evidence to the State Crime Command Legal Advice Section with a request for advice as to the sufficiency of the brief of evidence to charge the applicant with murder. On 4 April 2018, Detective Superintendent Scott Cook, Commander of the State Crime Command Homicide Squad, received advice from the State Crime Command Legal Advice Section (a claim for legal professional privilege is made in respect of that advice).
On 9 April 2018, that advice, under cover of letter from Detective Superintendent Cook, was forwarded to the ODPP.^[52] That letter reads as follows:

As you would be aware, your office has previously reviewed the brief of evidence in relation to the murder of Lynette Dawson. The previous advice from your office was that police should not instigate proceedings. Since receiving that advice, detectives have undertaken further investigation and sought internal legal advice as to the sufficiency of evidence. The brief of evidence and internal legal advice are attached. I am of the firm view that the available evidence now justifies the institution of criminal proceedings against Christopher Michael Dawson for the murder of his wife Lynette Dawson.
Given the previous involvement of your office and your advice not to prosecute, it is my view that it is prudent to seek further advice from your office, particularly as you will ultimately take carriage of any prosecution commenced by the Homicide Squad. It would be most unfortunate for the family if police were to commence proceedings and your office then declined to prosecute, particularly given the previous advice. This was a murder which attracted, and continues to attract, significant public interest. I respectfully urge you to consider the current evidence with the view of advising in favour of instituting criminal proceedings.
52. Exhibit 2 - Letter from Scott Cook, Detective Superintendent Commander Homicide Squad, to Lloyd Babb dated 9 April 2018.

Detective Poole gave evidence that some time in the week commencing 3 December 2018, prior to the applicant’s arrest in Queensland on 5 December 2018, police were notified that the DPP had determined to prosecute the applicant for murder. No correspondence between the ODPP and Detective Superintendent Cook was tendered on the application to confirm that decision or the reasons for it. It does not appear from the evidence tendered on the application that Lynette Dawson’s family were formally notified of the DPP’s decision or the reasons for it, although, if that be the case, nothing turns on it.
It was common ground on the application that the decision to prosecute was made in accordance with the Prosecution Guidelines of the ODDP for NSW. The edition of the Guidelines current at the date of the decision were published on 1 June 2007 with the authority of Mr Cowdery, the then DPP. Of relevance to this application is Guideline 4, “the decision to prosecute”; Guideline 12, “reasons for decision”; and, to a lesser extent, Guideline 14, “advice to police”.

[258] The three categories described by McHugh J are not independent. If the use of the court's procedures is unjustifiably oppressive to one of the parties (category (ii)), imperilling the fairness of a trial, this can contribute to the conclusion that the administration of justice would be brought into disrepute. There may even be circumstances where oppression of one of the parties is sufficient to bring the administration of justice into disrepute, even if the trial would be fair. Further, the underlying rationale of category (iii), namely, protection of the integrity of the court and its processes, might also encompass category (i) where a trial is instituted or maintained with an immediate, predominant purpose that is improper. Therefore, at a higher level of generality, it may be that the three categories are really only two, which overlap: (i) cases where a defendant cannot receive a fair trial; and (ii) cases where a trial would bring the administration of justice into disrepute
[259] Although there was considerable argument on these appeals about the potential fairness of a trial of the appellants, unfairness to the appellants is a relevant, but not necessary, factor for a conclusion on the central issue in this case: whether the use of the court's procedures would bring the administration of justice into disrepute. Since the rationale for a stay in cases in this category is the protection of the integrity of the court rather than the fairness of the court's processes, the label "abuse of process" may not be entirely apt. But the use of that label is well-established and will be used here for convenience. (footnotes omitted)

His Honour went on to give close consideration to the concept of the integrity of the court, which his Honour described (at [261]) as a “loose principle which is not easily applied to a particular case” and should not be understood as charting the boundaries of abuse of process. His Honour identified the question to be asked on the appeals as whether, despite the legitimate and substantial public interest in a person reasonably suspected of having committed a crime, and against whom there is a prima facie case with reasonable prospects of success, a trial must be stayed due to what his Honour described as “the threat to the integrity of the court arising from the systemic incoherence that would result if the trial be allowed to proceed”. His Honour used that term to describe what results from a case where the manner in which the case was developed and brought by the prosecution was contrary to basic tenets of the Australian criminal justice system, as embodied in a statute.
In Strickland those basic tenets were embodied in the ACC Act where there is a statutory compromise between the interests of an individual (namely the liberty to maintain silence when questioned by persons in authority about an offence and, building upon that liberty, the deeply ingrained privilege against self-incrimination) and public interest considerations, including the conviction of offenders. His Honour was satisfied that the examinations of each of the appellants were unlawful, not merely because there was no special investigation which authorised the examinations but also because they were improperly conducted.
Although Gageler J dissented in the ultimate outcome in Strickland, his Honour’s consideration of the principles that must inform the discretion whether a permanent stay will be granted are consistent with the views of the majority.
After remarking that the researches of counsel had not discovered any cases where a permanent stay has been ordered on the basis of the unlawful conduct on the part of law enforcement agencies in investigating criminal conduct which has not resulted in irremediable forensic unfairness or an undermining of public confidence in the administration of justice, even if that conduct occasioned some prejudice to a criminal defendant, and while not discounting the possibility of a permanent stay being ordered in combination with other considerations which might give rise to the misuse of the court’s processes in a way which amounts to an abuse of process, his Honour concluded that such circumstances, if they did exist, must have been “exceedingly rare”. In his Honour’s view, it was important that they should remain so. His Honour went on to say:

[166] Ordering a permanent stay of criminal proceedings as an abuse of process, even on the ground of irremediable unfairness, has repeatedly been described as a "drastic remedy" to be confined to a case that is “exceptional” or “extreme”. If the ordering of a permanent stay of criminal proceedings were ever to become other than exceptional, “it would not be long before courts would forfeit public confidence”.
[167] Fundamental amongst the considerations to be weighed in determining whether criminal proceedings should be permanently stayed as an abuse of process is “the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime”. That is because a permanent stay order has the practical effect of providing immunity from prosecution to a criminal defendant, leaving that criminal defendant under an “irremovable cloud of suspicion” and leaving the potential if not the likelihood of engendering within the community “a festering sense of injustice”, if not cynicism. (footnotes omitted)

Mr Boulten’s submissions on the issue of abuse of process

In closing submissions, Mr Boulten acknowledged and accepted there was nothing in the evidence to suggest that the decision-maker(s) in the ODPP had regard to the tone or content of the podcast (or for that matter that they had even listened to it). Neither was there any evidence that the decision-maker(s) was aware of the public clamouring through other arms of the media for the applicant to be prosecuted for murder or of other interest groups seeking the same result.^[203] Neither did Mr Boulten submit that the decision-maker(s) was in fact influenced by what was happening in the public domain more generally at the time when the decision to prosecute was made (on or about 3 December 2018) or over a concerted period of months before that date when the brief of evidence was under consideration and an advice on the sufficiency of the evidence was pending, where there were repeated calls that there be “Justice for Lyn”.
203. See T 440 (Facebook Groups) and T 445-446 (Justice for Lyn Walk). These commemorative walks apparently were convened in Newcastle, Perth, Port Macquarie and on the Gold Coast as discussed at some length in episode 16 of the podcast.
Mr Boulten did submit, however, that what remains as one of what he described as “the real evils” of the podcast, and the way it was promoted throughout the media, was what he invited the Court to find was the concerted effort on the part of the producers and publishers of the podcast, members of the electronic media and others, including, in particular, the Commissioner of Police who endorsed and promoted the podcast, to seek to pressure or manipulate the decision-maker(s) in the ODPP in contravention of the specific prohibition in Prosecution Guideline 4. It was in that way that Mr Boulten maintained the submission in reply to the Crown’s closing submissions that this Court should find established, even if only by inference, that the Commissioner of Police, as one arm of the State, in conjunction with Mr Thomas and the corporate media interests that employ him, shared a common objective that the ODPP should be persuaded to furnish an advice that proceedings against the applicant for murder should be initiated and that they pursued that common objective, knowing that if a decision were based on their concerted efforts, even if only in part, it would be contrary to the prohibition in Prosecution Guideline 4 and that the use of the Guideline’s process to try the applicant for murder in those circumstances would bring the administration of criminal justice into disrepute.
Mr Boulten also submitted the relationship that was forged from July 2018 between the Commissioner of Police and organs of the media (initially, it would seem, by his friendship with the 2GB talkback radio host, Mr Fordham, who in turn brokered an introduction for Mr Thomas) was a relationship that I would be satisfied was also designed to improperly influence the decision-maker(s) within the ODPP and that public confidence in the administration of justice is diminished for that reason.
Mr Boulten submitted that the process of a fair trial begins at the point of accusation and that the Commissioner’s involvement in the podcast at a time when the decision by the ODPP was pending was inappropriate, ill-judged and damaging both to the applicant’s right to a fair trial (by the Commissioner apparently endorsing the right of the media to judge his guilt) and to the administration of justice generally (by giving the members of the public the impression not only that Mr Thomas has succeeded in winning the support of the Commissioner of Police, but that the two of them were doing the “right thing” and in tandem, by seeking to have the applicant tried for murder).^[204]
204. T 547.
It seems to me that were the public to know of the relationship between Mr Thomas and the Commissioner as revealed in their private telephone communications, the potential for an erosion of public confidence in the administration of criminal justice would be deepened. The following are extracts from their various telephone calls.
First:^[205]
205. Exhibit J1(6). MF denotes Michael Fuller, the Commissioner of Police; HT denotes Hedley Thomas.

MF: Nah, thanks mate and have a good break if that’s where you’re going. I’ll probably reach out to the DPP in about 4-6 weeks to get a timeframe. So, if I get some information that a decision is coming, do you want me to give you a heads up?
HT: That’d be great. That’d be fantastic, yeah. Appreciate that. And I think with Dan Poole – he and I have been exchanging – well, I’ve been giving him everything that I think –
MF: Yeah, good.
HT: He’s been grateful and we’re good so.
MF: Yeah, no and I think that gives you a really sound position if there’s any criticism, even if it’s in two years’ time. From your perspective is that we can say hand on heart that your interest was only ever what mine was, which is justice for Lyn. You know, you gave us everything, you know what I mean? So, I think that, for a whole range of reasons, that puts you and I in a much better position.
HT: Totally, totally. No, it’s working out the best possible way without compromising stuff so that’s in our interest. Alright, mate –
MF: Well, have a good break and, um, thanks for that and I guess we’ll just sort out loosely keep in contact and as soon as I get wind, mate, ‘something’s happening’ – I’ll certainly give you an off-the-record heads up, yeah?
HT: Great, alright – thanks Mick –
MF: Thanks, Hedley. Take care, mate.

Second (the day of the applicant’s arrest):^[206]
206. Exhibit J1(11).

MF: G’day mate, you must be – I mean, I don’t mean this in a selfish way – but you must be pretty happy, mate?
HT: Oh, look – I am, um, I think it’s yeah – you know how I feel – long overdue. I was just talking to David Murray and I was recording the call – David’s my colleague. And so I just wanted to give you a heads up – it’s still on record but I can turn it off now or we can do an interview, whatever you’re comfortable with. But just didn’t want you to feel, you know, I just wanted to let you know straight away. That was all.
MF: No, no, no – I obviously am more than happy to be interviewed. It’s just a matter of timing, mate. I’ve got about 8 minutes for you now.
HT: Great.
MF: Or I can wait this afternoon and give you as much time as you want.
HT: Mate, I’ll grab the 8 minutes now and then, hopefully, we might be able, if I need more, to talk to you late today. Um, is that alright?
MF: Yeah, of course.
…
MF: … It’s a wonderful thing and I think what we ended up with was a good partnership, mate, and that’s good news for everyone.
HT: Yeah. Terrific. Okay. Well, um, Mick – thank you – and congratulations and – to you –
MF: Same to you, mate. It’s been good working with you and obviously I know is been recording but – off the record, hopefully we can catch up in the New Year and have a little lunch or something.
HT: That’s great – alright mate ...

Mr Boulten submitted that members of the public who both listened to the podcast or listened to the Commissioner of Police being interviewed on talkback radio about the podcast, and about the police investigation that was current and continuing at that time, would be entitled to think that the Police Commissioner, as the senior investigating officer in the NSW police force, was entitled to seek to influence the outcome of the deliberations of the Deputy DPP, even if there is no evidence that he did so directly. Mr Boulten submitted that the true course of justice has been severely and irreparably damaged by the conduct of the Commissioner of Police such that it would be an abuse of process to put the applicant to trial.
I am left in no doubt that Mr Thomas intended to apply pressure on the ODPP to prosecute the applicant. He was asked the following questions by Mr Boulten which were then the subject of further questions by the Crown prosecutor:^[207]

Q. You intended to put pressure on the DPP, didn’t you?
A. No, I intended to expose inaccuracies and if that caused them to look at it in a more forensic way then that would be a good thing.
…
Q. What effect did you think that any public pressure from you or the family of Lynette Dawson would have on the decision makers at the DPP?
A. That it might cause the DPP to look at something properly. I was well aware the DPP had publicly apologised for failing to prosecute Lynette Daley just a short time before my podcast started. It’s not unusual for officers of the DPP to be fallible.^[208]
207. T 281 and 283.
208. There was no evidence adduced on the application to support that proposition. If it is a reference to the meeting with Mr Pickering in 2012 - Mr Thomas has misunderstood the course of the meeting (see [101]-[102]).

For Mr Thomas to suggest that he felt public pressure might cause the DPP “to look at something properly” is breathtaking. I had the following exchange with Mr Thomas:^[209]
209. T 283-284.

Q. And you really thought that your way of looking at things was going to be the overwhelming source of influencing the director’s decision, did you?
A. No, your Honour, I haven’t said that.
Q. I just remind you of the evidence that the Crown Prosecutor has just taken you to. It’s a question put by Mr Boulten:
“Q. You intended to put pressure on the DPP, didn’t you?
A. No, I intended to expose inadequacies, and if that caused them to look at it in a more forensic way then that would be a good thing.
Q. You wanted them to look at it the way you were looking at?
A. Yes.
Q. That was one of the reasons why you’d broadcast the podcast?
A. Yes.”

Q. So there’s a number of things one might draw from that, leaving your journalistic hubris to one side for a moment, and that is that you have a more forensic eye or power of analysis than those within the director’s office who are charged both professionally and by statute to discharge their professional duties forensically, and that you thought your way of looking at it was better than the way they were looking at it, and you wanted them to look at it the way you were looking at it. Now, why wouldn’t I divine from what you have said there in evidence, again leaving journalistic hubris to one side, that you thought you knew better than anyone?
A. Well, your Honour, I think that’s not ‑ it was not my position. My ‑ my view and my answer was that if the publication of the podcast caused people in the DPP to hear things they hadn’t heard or to look at it more forensically, then well and good. I was very aware that Lyn’s family had completely lost confidence and trust in the Office of the DPP because of the communications they had had from DPP officers which strongly indicated to them the DPP had a view about some of the evidence that was just wrong. And you can refer to my journalistic hubris, I think that some practitioners also have legal hubris and believe that their view is the view that should be accepted and‑‑
Q. Let me interrupt you, Mr Thomas. The difference between your views as a journalist of evidence sufficient to put somebody on their trial for murder is a wayside different, and if you’d read the director’s guidelines you might know the reason why it’s a wayside different to the obligations statutorily imposed on the director’s office to look, consider carefully, evaluate forensically, and make a legal decision about the sufficiency of evidence to prosecute a person for murder.

Were I to accept that the evidence on the application admits of no conclusion other than that the NSW Commissioner of Police also deliberately set out to influence the decision of either the Director of Public Prosecution (or a Deputy Director to whom the power to authorise the bringing of proceedings was delegated) by publicly engaging with the media generally, and with Mr Thomas in the podcast in particular, I would have no hesitation in finding that conduct grossly improper. However, in circumstances where the Commissioner was not called in the proceedings to provide an explanation as to whether, and if so to what extent, he considered that his public endorsement of the podcast was, or might be, interpreted as an attempt by him to influence the content of the legal advice that had been formally sought from the ODPP in conformity with established protocols, I am not prepared to make a finding of impropriety. Further, having not heard from the Commissioner, I am unable to find that he deliberately, or even recklessly, joined forces with Mr Thomas to ensure that the applicant was tried for murder, in disregard of the applicant’s fundamental right to the presumption of innocence and his right to silence. Were I to have made that finding, it would follow that the conduct of the Commissioner would offend the integrity and functions of the Court and its procedures and processes in administering criminal justice within the structure of a criminal trial such that a permanent stay of the applicant’s trial would be an available remedy.
However, I am of the opinion that the Commissioner’s conduct in participating in the podcast in August 2018 was ill-advised, if for no other reason than it gives rise to the spectre of an attempt by him to bring public pressure to bear on the decision-maker(s) within the ODPP when the independence of that office is paramount to the administration of criminal justice in this state.
In my resolve not to grant the extreme remedy of staying the applicant’s prosecution for an abuse of process, I took into account the fact that there is no evidence before me to suggest that the deliberate efforts of Mr Thomas to ensure the applicant was tried and convicted for murder, with or without the imprimatur of the Commissioner, influenced the decision-maker(s) within the ODPP.

Conclusions

The variety and combination of the intersecting factors which are said to operate in this case so as to put the fair trial of the applicant at risk, warranting a permanent stay, calls for the exercise of a discretionary judgment. The question whether this is an “extreme” or “singular” case because there is a real and substantial risk of unfairness to the applicant that cannot be remedied by judicial direction involves a weighing and balancing of countervailing considerations with a focus which is necessarily prospective. As at date of this judgment the applicant has not been given a trial date for a jury trial. That presents an added complication. While on the one hand any further delay in the commencement of his trial intensifies the risk of memories fading or, worse still, witnesses dying, the Court is aware that the applicant will not receive a date for a trial by jury in 2020 and will be unlikely to receive a date for a jury trial before June 2021 in any event because of the significant reduction in the number of courts available for a jury trial responsive to the health pandemic and where other criminal trials that have been called over since the filing of the notice of motion in March 2020 have priority.

I should make it clear that in the exercise of the discretion whether or not to grant the applicant a permanent stay, the applicant’s entitlement to apply under s 132 of the Criminal Procedure Act for a trial without a jury (a trial which could be convened much earlier than June 2021, perhaps even this year) is irrelevant both to the discrete question whether the impacts of adverse pre-trial commentary can be securely cauterised by the Court making an order that the applicant be tried without a jury, as it is to the wider question whether, in the balancing exercise underpinning the exercise of the discretion, issues of delay and the loss of an opportunity to obtain evidence supportive of his case can be appropriately managed by direction or evidential rulings. I simply note the power in the Criminal Procedure Act for the Court to order a judge alone trial to make it clear that I have ignored it.
Ironically, however, the delay in the appointment of a trial date will also very likely have the effect that the adverse impact of the podcast will progressively subside as memories of it recede, assuming there is nothing in the public domain in the short or medium term to reignite it. In that context, as I have already noted, it is regrettable that the promotional material for another true crime podcast produced and presented by Mr Thomas includes a reference to The Teacher’s Pet, and that Nationwide News has taken the view that it should remain part of the promotional material, and that the synopsis of The Teacher’s Pet should remain accessible on The Australian website^[210].
210. Affidavit of Angela Skocic dated 30 August 2020.
Despite the combined weight of the impact of a delay of 38 years before the decision was made to prosecute the applicant, including the inadequacies of aspects of the investigation conducted by Detective Poole between 1998 and 2015 and the loss of material documents in the Mayger investigation which preceded it, and the very substantial prejudice occasioned by the broadcast of The Teacher’s Pet podcast over a period of months before the applicant was arrested and charged on 3 December 2018, including its capacity to erode the applicant’s right to silence and the presumption of innocence, after undertaking the balancing exercise inherent in the exercise of the discretion to order a permanent stay of the applicant’s trial, and after taking into consideration and applying the principled approach in the authorities to which I have referred, I am not persuaded that, either individually or in combination, those factors outweigh the considerable public interest in the continuation of a trial of a man who is alleged to have murdered his wife. Neither am I persuaded those “defects” cannot be satisfactorily addressed by the trial process, including by a range of measures available to the trial judge, so as to ensure the applicant’s trial is conducted in accordance with fundamental principles of fairness.
I do, however, wish to have something further to say about the podcast since it is that factor alone that has persuaded me that the applicant is entitled to a temporary stay of his jury trial, an order which will have the effect that his trial will not commence before a jury before 1 June 2021. That order is made in the expectation that the adverse impact of the podcast in the commentary surrounding it will abate over the next nine months.
The proliferation of cases in this state where a permanent or temporary stay of proceedings has been sought, or where an application for a trial by judge alone has been made to alleviate the risk of adverse pre-trial publicity is well documented. However, no application for a permanent stay of a criminal trial, either in this jurisdiction or in any other state jurisdiction, has been based upon a serialised podcast and the media storm which it generated of the kind under consideration here, and none where the opinions from self-appointed experts and prospective Crown witnesses that an accused is a liar, a reprobate and a murderer, or very probably a murderer, have been widely publicised. I am in no doubt that the adverse publicity in this case, or more accurately, the unrestrained and uncensored public commentary about the applicant’s guilt, is the most egregious example of media interference with a criminal trial process which this Court has had to consider in deciding whether to take the extraordinary step of permanently staying a criminal prosecution. Were the podcast published at a time after the applicant had been charged with the murder of his wife, a number of individuals and publishers would inevitably have been liable and likely convicted of a criminal contempt.
Although the Court is not privy to the legal advice which Mr Thomas sought and obtained from his employers, and unaware as to whether and what advice might have been obtained by other broadcasters who promoted and endorsed the podcast, the compelling inference is that they all considered they were at liberty to publish what can only be described as scandalous material about the applicant (including, in effect, calling him a murderer) because at the time of the publication he had not been charged with murder, despite the fact (and I am prepared to find it as a fact) that all media interests were well aware that question was under active consideration by the ODPP.
The particular, perhaps even novel, challenge presented by podcasters and broadcasters of podcasts, who in the legitimate pursuit of their journalistic and commercial endeavours undertake research, conduct “investigations” and comment upon so-called “cold case murders” needs to be the subject of considered reflection. In the future, a journalist ignores at their peril the potential impact of their commentary on the currency of a police investigation and on a future trial in a case where a person may ultimately be charged with murder. Accepting that reality carries with it the obligation to accept and acknowledge the fundamental principles of criminal justice which it is the responsibility of the courts to uphold in the public interest. The fact that no orders were sought prohibiting the publication of the podcast while the decision of the ODPP was pending is now a matter of history. I have already noted that no application for orders has, since that date, been made. Where necessary, the courts are called upon to mediate between the interests of the media and the principles of open justice, including orders restricting or prohibiting publication of information to protect the proper administration of criminal justice and any threatened interference with a pending criminal trial (see Courts Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8).

Orders

I make the following orders.

The notice of motion seeking an order for a permanent stay of the jury trial of Christopher Dawson on the charge that he murdered Lynette Dawson is dismissed.

The jury trial of Christopher Dawson is not to commence before 1 June 2021. (That order is not intended to interfere with any case management orders might be made by this court in the interim. In particular, the order for a temporary stay of the applicant’s jury trial is not intended to prohibit the making of any pre-trial orders that may be applied for by the Crown or the accused.)

The parties are to jointly apply to the chambers of the Criminal List Judge, R A Hulme J, by 5pm on 14 September 2020 for a date when the trial will be called over by his Honour.

**********

Endnotes

Amendments

09 May 2022 - Non-publication order lifted by Fullerton J.

10 May 2022 - Names of JC and SW anonymised.

29 June 2023 - Corrected order of footnotes.

Decision last updated: 29 June 2023

Medium Neutral Citation:	R v Dawson [2020] NSWSC 1221
Hearing dates:	15-31 July 2020
Decision date:	11 September 2020
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	1. The notice of motion seeking an order for a permanent stay of the trial is dismissed. 2. The trial is not to commence before a jury before 1 June 2021. 3. The parties are to jointly apply to the chambers of the Criminal List Judge by 5pm on 14 September 2020 for a date when the trial will be called over by his Honour.
Catchwords:	CRIMINAL LAW – application for permanent stay of indictment on individual and composite grounds – applicant charged with the murder of his wife in 1982 – ODPP’s decision to prosecute in 2018 reversing earlier decisions not to prosecute – extensive pre-trial publicity and commentary, including a podcast series in 2018 in which the applicant’s solicitor and Deputy State Coroner were interviewed – whether podcast caused irremediable prejudice justifying permanent stay of proceedings – whether apprehended unfair consequences of pre-trial publicity / commentary are capable of being relieved against by directions to jury and other orders – whether applicant is irremediably prejudiced by an unreasonable delay in initiating the prosecution – whether police misconduct has caused incurable prejudice – whether decision to prosecute was influenced by pre-trial publicity and commentary, including by NSW Commissioner of Police – whether that amounted to an abuse of process justifying a permanent stay of proceedings
Legislation Cited:	Coroners Act 1980 (NSW) (repealed) Courts Suppression and Non-publication Orders Act 2010 (NSW) Criminal Procedure Act 1986 (NSW) Director of Public Prosecutions Act 1986 (NSW) Evidence Act 1995 (NSW) Jury Act 1977 (NSW) Police Regulation (Allegations of Misconduct) Act 1978 (NSW)
Cases Cited:	Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Hinch v The Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56 Jago v The District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28 R v Davis (1995) 57 FCR 521 R v Littler (2001) 120 A Crim R 512; [2001] NSWCCA 173 Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 272 A Crim R 69; [2018] HCA 53 The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 Tuckiar v The King (1934) 52 CLR 355; [1934] HCA 49 Volkers v R [2020] QDC 25
Category:	Principal judgment
Parties:	Christopher Michael Dawson (Applicant/Accused) The Crown (Respondent)
Representation:	Counsel: P Boulten SC (Applicant/Accused) C Everson (Respondent/Crown) Solicitors: Greg Walsh and Co Solicitors (Applicant/Accused) Office of the Director of Public Prosecutions NSW (Respondent/Crown)
File Number(s):	2018/372527
Publication restriction:	Nil.