R v Dawson

[2022] NSWSC 812

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dawson [2022] NSWSC 812
Hearing dates:	17 June 2022
Date of orders:	17 June 2022
Decision date:	17 June 2022
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	Defer tender of two statements made by Karen Dawson.
Catchwords:	CRIMINAL LAW – murder trial – where Crown seeks to tender summaries of voluminous or complex documents – whether it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question – where volume or complexity of the documents is not known
Legislation Cited:	Evidence Act 1995 (NSW), s 50
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

EX TEMPORE Judgment

1. HIS HONOUR: The Crown seeks to tender two documents. The first is a statement in the form of a P190 document made by Karen Isabel Dawson, a constable of police, dated 22 October 1999. The second is a further statement by the same officer on 16 January 2001.

2. It is obviously an issue in these proceedings for the Crown to establish beyond reasonable doubt that Lynette Dawson is dead. That is a fundamental element of the crime with which the accused stands charged in these proceedings. It is notorious that Lynette Dawson's body has not been located or recovered so that the Crown must establish in the absence of that evidence that she is not alive.

3. The Crown contends that the material referred to by Constable Dawson in the two statements summarises a series of inquiries made by her with public agencies in an attempt to locate whether or not Lynette Dawson is alive or dead. The agencies include, but are not limited to, registries of births, deaths and marriages in several states, banking institutions, the immigration department and others with which, in the Crown's anticipation, it might be expected a living person would have come into contact either by choice or necessity. The Australian Taxation Office, for example, arguably falls into the latter category.

4. Objection is taken to the tender of these statements upon the basis that the source documents relied on by Constable Dawson are either not adequately or appropriately described by her or, perhaps more fundamentally from the defence position, are not annexed to either of the statements in question.

5. The Crown moves to tender these documents relying upon s 50 of the Evidence Act1995 which is relevantly as follows:

50 Proof of Voluminous or Complex Documents

(1) The Court may, on the application of a party, direct that the party may adduce evidence of the contents of two or more documents in question in the form of a summary if the Court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.

(2) The Court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has

(a) served on each of the party a copy of the summary that discloses the name and address of the person who prepared the summary, and

(b) given each other party a reasonable opportunity to examine or copy the documents in question.

6. There seems to be no issue that the terms of s 50(2) of the Act have been complied with. However, Ms David, on behalf of the accused, maintains that the summary documents are not admissible because they fail adequately to identify the source documents and that they are not annexed to Constable Dawson’s statements.

7. The issue for consideration which arises from the terms of s 50(1) would in the present circumstances appear to require resolution of the question of whether it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. Although Ms David has not precisely adverted to that point, I understand her to contend that the Crown should be required to establish, in order to rely upon a summary, that the documents to which Ms Dawson has had access are by reason of their volume or complexity of such a nature that it is "not otherwise...possible conveniently to examine” them.

8. On one view, there is a slight tension between the absolute terms of the word "possible" on the one hand and the relative term "conveniently" on the other hand. Taken as a compound expression, "possible" would appear to qualify the word "conveniently" so as to underscore the rationale behind the section permitting a reliance upon a summary in circumstances where an examination of the documents is relevantly inconvenient.

9. Ms David raises a second point. She contends that the summary, accepted on its face according to its terms, fails in any event to establish that Lynette Dawson is dead. In other words, the summary, on her contention, does not of itself help to establish beyond reasonable doubt one of the significant elements of the crime for murder which the Crown is required to prove. In my opinion, that does not make the documents inadmissible but raises the question of their utility or weight and highlights the issue of what matters can be drawn from them on the assumption that they are admitted.

10. So far as the first point is concerned, the evidence would appear either to be silent or not particularly specific about the "volume or complexity of the documents in question". As presently advised, I am unaware of any material upon the basis of which I could form a view about either of those matters, nor have I received submissions upon the point.

11. Accordingly, to the extent that there may be some merit in the proposition that the Crown has not yet established precisely, or even generally, what the volume or complexity of the documents in question may be, I consider that the current tender should be deferred until that issue can be established or until evidence can be led to satisfy me that it cannot be advanced beyond the description of the documents inspected by Ms Dawson in the two statements which are the subject of tender.

**********

Decision last updated: 09 September 2022