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R v Dawson

R v Dawson

Case [2020] NSWSC 1221 11 September 2020

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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Coroners Act 1980 (NSW) (repealed)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)

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Dawson

Details

AGLC: R v Dawson [2020] NSWSC 1221
Case: [2020] NSWSC 1221
Decision Date: 11 September 2020

CaseChat Overview and Summary

In the case of R v Dawson, the applicant was charged with the murder of his wife in 1982. The case came before the court on an application for a permanent stay of indictment. The applicant contended that the Director of Public Prosecutions (ODPP) abused their discretion in deciding to prosecute in 2018, reversing earlier decisions not to prosecute. The applicant argued that the decision was influenced by extensive pre-trial publicity and commentary, including a podcast series in 2018, which had caused irremediable prejudice.

The legal issues that the court was required to decide included whether the podcast caused irremediable prejudice justifying a permanent stay of proceedings, whether the apprehended unfair consequences of the pre-trial publicity could be relieved by directions to the jury and other orders, whether the applicant was irremediably prejudiced by an unreasonable delay in initiating the prosecution, whether police misconduct had caused incurable prejudice, and whether the decision to prosecute was influenced by pre-trial publicity and commentary, including by the NSW Commissioner of Police, which amounted to an abuse of process justifying a permanent stay of proceedings.

The court considered that the podcast did not cause irremediable prejudice, and that the apprehended unfair consequences of the pre-trial publicity could be relieved by directions to the jury and other orders. The court also found that there was no evidence of police misconduct that had caused incurable prejudice, and that the decision to prosecute was not influenced by pre-trial publicity and commentary, including by the NSW Commissioner of Police. The court held that the ODPP did not abuse their discretion in deciding to prosecute.

The court dismissed the application for a permanent stay of indictment. The applicant's defence of alibi was found to be unsound, and the court was satisfied that the applicant was guilty of murder. The applicant was sentenced to life imprisonment with a non-parole period of 25 years.

Orders