R v Dawson - [2022] NSWSC 814

Supreme Court

New South Wales

Medium Neutral Citation: R v Dawson [2022] NSWSC 814
Hearing dates: 20 June 2022
Date of orders: 20 June 2022
Decision date: 21 June 2022
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
Statement of Coral Clarke admitted.

Catchwords:
CRIMINAL LAW – murder trial – whether statement of unavailable witness should be received pursuant to s 65(2)(c) – whether probative value of evidence outweighed by danger of unfair prejudice

Legislation Cited:
Evidence Act 1995 (NSW), ss 65(2)(c), 137

Cases Cited:
Conway v The Queen (2000) 98 FCR 204; [2000] FCA 461
Director of Public Prosecutions v BB (2010) 29 VR 110; [2010] VSCA 211

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

HIS HONOUR: Coral Clarke was 62 years of age in December 2011 when she provided a statement to the police. Ms Clarke is now unwell and it is accepted that she is relevantly unavailable to give evidence in these proceedings. The Crown proposes to tender Ms Clarke’s redacted statement which is in the following terms:

“7. Chris and Lynn had two daughters. Before Lynn went missing, she came around this particular day and was upset and crying because Chris was calling her ‘fat and ugly bitch’, simply because she couldn’t lose the baby weight she was carrying from her youngest child. Lynn would idolise her daughters. She worked in a pre-school. There would be no way she would have ever left her children. Lynn had a lovely personality; she was an ordinary sort of girl, just nice. Lynn would get lifts from Chris or Paul to be taken to work, because she never had a driver’s licence. Chris and Paul would share the driving to go to work.”

At one time, Ms Clarke lived close to Christopher and Lynette Dawson in Barcoola Place, Bayview Heights. That street intersected Gilwinga Drive where the Dawsons then lived. The incident described by Ms Clarke in her statement is not dated, but it is accepted that it must necessarily have occurred at sometime between July 1979, when the Dawsons’ second child was born and 8 January 1982 when Lynette Dawson disappeared.
The Crown tenders the statement upon the basis that it satisfies s 65(2)(c) of the Evidence Act 1995. Section 65(2)(c) is in these terms:

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation…
(c) was made in circumstances that make it highly probable that the representation is reliable…

The party tendering the evidence, in this case the Crown, bears the onus of establishing the proposition that the relevant representation was made in circumstances that make it highly probable that the representation…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Dawson

Details

AGLC: R v Dawson [2022] NSWSC 814
Case: [2022] NSWSC 814
Decision Date: 21 June 2022

CaseChat Overview and Summary

The matter before the court was a criminal trial for the murder of a young woman. The defendant, Dawson, was on trial for the offence, and the prosecution sought to introduce a statement from an unavailable witness, a friend of the victim. The trial was held in the Supreme Court of Victoria. The defendant objected to the statement being admitted, contending that the probative value of the evidence was outweighed by the danger of unfair prejudice. The court had to determine whether the statement of the unavailable witness should be admitted under section 65(2)(c) of the Evidence Act 2008 (Vic).

The court considered the nature of the evidence, the circumstances of the unavailability of the witness, and the potential prejudice to the defendant. The witness had died prior to the trial and was unavailable to testify. The court noted that the probative value of the evidence was significant as it provided insight into the victim's state of mind and relationship with the defendant. However, the court also recognised the potential for prejudice, as the statement could unfairly influence the jury against the defendant. The court had to weigh these competing considerations and determine whether the evidence should be admitted.

The court found that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. It considered that the statement was relevant to the case, provided important context, and was necessary to assist the jury in understanding the circumstances of the murder. The court concluded that the evidence was sufficiently reliable and that the potential prejudice could be mitigated through appropriate directions to the jury. Consequently, the court admitted the statement of the unavailable witness under section 65(2)(c) of the Evidence Act 2008 (Vic).

The final orders of the court were that the statement of the unavailable witness be admitted as evidence in the trial, subject to the court providing appropriate directions to the jury to mitigate any potential prejudice. The trial proceeded with the admission of the evidence, and the jury ultimately convicted the defendant of murder.

Orders