R v Dawson

[2022] NSWSC 861

Supreme Court

New South Wales

Medium Neutral Citation:

R v Dawson [2022] NSWSC 861

Hearing dates:

29 June 2022

Date of orders:

01 July 2022

Decision date:

01 July 2022

Jurisdiction:

Common Law - Criminal

Before:

Harrison J

Decision:

Admit the documents from the Family Court as Exhibit CU.

Catchwords:

CRIMINAL LAW – murder trial – evidence – where Crown seeks to rely on documents filed in Family Court proceedings – whether the evidence was obtained improperly or as a consequence of an impropriety – whether the tender of the documents is in breach of the Harman principle – whether the Crown’s use of admissions contained in the documents would be unfair to the accused

Legislation Cited:

Evidence Act 1995 (NSW), ss 90, 138

Family Law Rules 2004, r 13.07A

Cases Cited:

Director of Public Prosecutions (Vic) v Natale [2018] VSC 339

Harman v Secretary of State for the HomeDepartment [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Spedding v State of New South Wales [2022] NSWSC 503

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; (1992) 110 ALR 685; 38 FLR 217; [1992] FCA 720

Category:

Procedural rulings

Parties:

Regina (Crown)
Christopher Michael Dawson (Accused)

Representation:

Counsel:
C M Everson SC and E Blizard (Crown)
P David (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Greg Walsh & Co Solicitors (Accused)

File Number(s):

2018/372527

Publication restriction:

Nil

Judgment

1. HIS HONOUR: In 1983, Mr Dawson commenced proceedings in the Family Court of Australia seeking a dissolution of his marriage to Lynette Dawson and orders with respect to their matrimonial property. The application for dissolution of their marriage was filed on 29 April 1983. Mr Dawson swore an affidavit in support of an application to dispense with service on the same date and a later affidavit in support of an application for property settlement on 16 September 1983. The Crown now proposes to tender these documents. The tender is opposed by Mr Dawson. He submits first that the documents fall foul of s 138 of the Evidence Act 1995, secondly that they are inadmissible as their reception is somehow in breach of the Harman principle and thirdly that I should otherwise refuse to admit them pursuant to s 90 of the Act as use of admissions which they contain would be unfair to him.

Section 138

2. Section 138 of the Evidence Act provides relevantly as follows:

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained—

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) …

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

3. As far as I understand the submission, Mr Dawson contends that the Family Court documents were not provided to the police in response to a subpoena or other formal process but were instead handed over to the investigating detectives as the result of nothing more than a simple request. In those circumstances, it meant that the material that the Crown wishes to tender was, or must have been, obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law. In particular, Ms David for Mr Dawson referred to the Family Law Rules which she maintained made this plain.

4. Rule 13.07A of the Family Law Rules 2004 provides as follows:

Use of documents

A person who inspects or copies a document, in relation to a case, under these Rules or an order:

(a) must use the document for the purpose of the case only; and

(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.

5. Doing the best I can, I am unable to accept that this rule has any present application. The Crown did not apply to inspect or copy any document. Police investigators attended the Family Court and asked for the file. The Family Court gave it to them. So much is apparent from exhibit VD 12 which is a document dated 13 September 2018 forming part of the served Crown brief in the following relevant terms:

“On the 13^th of September 2018, DSC Howle attended the Family Law [sic!] Court of Australia and collected the divorce proceedings file of Christopher Dawson and Lynette Dawson.

The file contained a number of documents in relation to the subsequent proceedings. The file has been saved in four parts.”

6. The evidence before me on this application does not support a contention that the documents were obtained improperly or in consequence of an impropriety or contravention of an Australian law. The iniquity to which s 138 is directed in cases such as the present is the presumptive unfairness of permitting a party that has arguably infringed the law or has acted in an improper way in obtaining documents nevertheless to enjoy the benefit resulting from what has been obtained in that way. This is most notably of significance where the impropriety or infringement is directly related to the advantage secured, such as in the case of an admission or confession in writing obtained by duress or by a failure to follow guidelines for the treatment of suspects in a criminal context. By way of contrast, the affidavits in this case were provided to the Crown without any infringement of the law. Moreover, Mr Dawson was the author of the documents and has sworn that their contents are true.

7. Ms David also suggested, if in fact Mr Dawson swore his affidavits without legal advice, that there is the potential for some doubt to remain about the circumstances in which that occurred, which in turn casts a shadow over the legitimacy of their use in these proceedings. That submission appears to me to suggest that sworn depositions that became evidence in earlier proceedings should not be received in evidence in later proceedings unless a deponent can be shown to have received legal advice, or at least the opportunity to take it, warning of that possibility. Without intending any disrespect, that contention is patently nonsensical, as it appears to suggest that a deponent should be entitled variously both to approbate and reprobate the truth as the circumstances may require. It is unnecessary further to elaborate upon the reasons why I consider that submission should be rejected.

The Harman principle

8. Mr Dawson also maintained that the use of the documents by the Crown was somehow limited or restricted or constrained by principles most commonly referred to by reference to Harman v Secretary of State for the Home Department [1983] 1 AC 280. I recently dealt with a similar application in Spedding v State of New South Wales [2022] NSWSC 503.

9. In Hearne v Street (2008) 235 CLR 125; [2008] HCA 36, Hayne, Heydon and Crennan JJ described the obligation in these terms:

“[96] Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits…”.

10. It was argued on behalf of Mr Dawson on this application that the documents in his Family Court file were disclosed by him to the Family Court in 1983 as the result of compulsion, in the sense that he could not have obtained a dissolution of his marriage without swearing the affidavits in question and that he was in that sense compelled to provide them to the court in those proceedings. I do not accept that submission. Mr Dawson commenced the proceedings as the applicant in that court. Even if he was required to provide evidence in support of his application for a dissolution of his marriage and related orders, he was in no sense compelled to do so. The documents did not come into the possession of the Crown only because Mr Dawson was compelled to produce them to the Family Court. It was his choice. In any event, the affidavits were read in the proceedings and were thereby “received into evidence”.

11. In general terms, the following considerations are relevant in cases where it is arguable that the Harman restriction applies:

1. what is the nature of the document and information in the document (for example how private and/or confidential the contents of the document are);

2. what are the circumstances under which the document came into existence;

3. whether any prejudice might be occasioned to the author of the document if it is permitted to be used for another purpose;

4. whether the document pre-dated the litigation or was created for the purpose of litigation and hence was intended eventually to enter the public domain;

5. how the document came into the hands of the party seeking leave to use the document;

6. the contribution that the document might make to achieving justice in the second proceedings.

12. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; (1992) 110 ALR 685; 38 FLR 217; [1992] FCA 720, the contribution that the document might make to achieving justice in the second proceedings was called “perhaps the most important [consideration] of all” per Wilcox J at [26].

13. In the present proceedings, described for present purposes in the most general terms, the Crown wishes to draw attention to certain representations made by Mr Dawson in the affidavits sworn by him in 1983 in order that they might be compared or contrasted with other representations made by him since then which have become evidence in this trial. Some of these representations are referred to later in these reasons.

14. Having regard to the matters referred to at [11] above, I do not consider that the documents should be excluded from being received in evidence in this trial by reason of some perceived analogy with the Harman principles.

Section 90

15. Section 90 of the Evidence Act is as follows:

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if--

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

16. Mr Dawson’s submissions in support of his reliance on this provision were to some extent a reaffirmation of the submissions already considered in relation to s 138. “The focus of the exercise of the unfairness discretion is…upon the unfairness of the use of the admission in the trial, not the unfairness of the means by which it was obtained”: Director of Public Prosecutions (Vic) v Natale [2018] VSC 339 at [35].

17. As already observed, there can be no suggestion of any unfairness attaching in this case to the way in which any admissions made by Mr Dawson in his Family Court affidavits were obtained: they were made by him voluntarily for use in proceedings commenced by him seeking orders for dissolution of his marriage and property settlement. The reference to “obtained” in this context refers to the circumstances in which the admissions were created or came into existence, not the circumstances in which the Crown obtained the documents from the Family Court. The admissions came into existence when Mr Dawson deposed to the facts on which he relied in that court.

18. I am unable to discern the existence of any unfairness arising from the proposal by the Crown to rely upon the admissions in these proceedings. The fact that Mr Dawson may wish to distance himself from something or anything relied upon by him as the truth in the Family Court does not equate to an unfairness arising from the use of the admissions by the Crown in this trial.

19. Although the debate in support of this application did not descend to the detail of the material contained in Mr Dawson’s affidavits, one example of what he swore to be true in 1983 may serve to highlight my attitude to the Crown’s desire to adduce evidence. Mr Dawson’s application for dissolution of the marriage described, as one of the arrangements proposed by him for the welfare of the children, that Lynette Dawson left the matrimonial home in January 1982 and that he commenced a de facto relationship with JC in April 1982. The application also asserts that since January 1982, apart from some telephone calls during that month, Mr Dawson had not heard from Lynette Dawson, who had been reported to the police as a missing person.

20. Mr Dawson’s affidavit sworn in support of his application to dispense with service also contained these paragraphs:

“2. During the latter half of 1981, the marriage between myself and the respondent was not a happy one and in early January 1982 we attended counselling in an endeavour to assist our marital situation.

3. Shortly after attending counselling, in January 1982, the respondent, without notice to me, left the former matrimonial home and did not advise me of any forwarding address. During the first week following her vacation of the former matrimonial home, the respondent telephoned me and said to me words to the effect that she was going away to think things over and intended to return when she had sorted things out.

4. In February 1982, I received my bankcard statement which showed that the respondent had effected two purchases on our joint account at Warriewood Square during the latter part of January.

5. Shortly after receipt of my bankcard statement, as I had not heard from the respondent, I made enquiries through her family and was informed by them that they had also not heard from her. As I have been left with the children of the marriage, I was concerned at not hearing from the respondent and accordingly in February 1982, I reported her to Mona Vale Police as missing. I believe that the Police have made enquiries seeking to ascertain her whereabouts, but I am informed by them and verily believe that they have not been able to contact her.

6. The respondent’s mother had, with my agreement, seen her grandchildren at least once a month and she collects the children from me. I have asked her on numerous occasions whether she has heard from the respondent, her daughter, but have been informed by her that she has made exhaustive enquiries seeking to find her daughter but has not been successful.

7. I have no idea of the whereabouts of the respondent and am unable to provide any information which would enable documents to be served upon her.”

21. There does not appear to me to be any unfairness attaching to the Crown’s proposal to adduce this evidence or for it to be used in this trial. Mr Dawson is the author of the documents, created by him for legitimate litigious purposes. Having regard to the issues that the Crown is required to establish, there can be no unfairness to Mr Dawson if this evidence is admitted.

22. It was for these reasons that I admitted the documents from the Family Court, marked as Exhibit CU in these proceedings.

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Decision last updated: 09 September 2022