Supreme Court New South Wales Medium Neutral Citation: R v Dawson [2022] NSWSC 810 Hearing dates: 15 June 2022 Date of orders: 15 June 2022 Decision date: 15 June 2022 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Evidence rejected Catchwords: CRIMINAL LAW – murder trial – application to adduce evidence of Lynette Dawson's work colleagues from 1969 – evidence irrelevant – no probative value – not admissible as evidence of a tendency on the part of the accused to act in a particular way Legislation Cited: Evidence Act 1995 (NSW), ss 97, 135, 137 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: The Crown has applied to call a series of four witnesses who have not previously been notified to the accused as potential contributors to the Crown case. This is for the reason that they have only recently come forward with information relating to these proceedings. Each woman was a colleague of Lynette Dawson and each trained with her at the Royal Alexandra Hospital for Children at Camperdown, commencing in 1966. Although the statements of these witnesses vary in many respects, they all refer essentially to the same limited circumstances. 2. Lynette Dawson was by 1969 engaged to Mr Dawson. She resided in nurses quarters at the hospital. Mr Dawson would visit her there from time to time. Her colleagues celebrated Lynette Dawson's 21st birthday by taking her to Chequers Nightclub in Sydney to see Shirley Bassey. 3. One of the witnesses, GB, deposes to what she says happened one or two days after the concert. She recalled that Lynette Dawson "was covered in bruises". This witness said that Lynette Dawson "had a black eye, bruises on both her arms, and bruises on her left leg". She said that there were at least three to five other nurses there at the time. Two of these other nurses are named as JE and VR and they have also given statements upon which the Crown proposes to rely. 4. When questioned about what happened to her, GB says that Lynette Dawson replied, "I fell down some stairs". One of the women present said, "Rubbish. I bet he pushed you down the stairs". Lynette Dawson is said at this point to have broken down crying. She declined to report the matter, allegedly saying, "I don't want to, I love him". 5. GB also gives a version of events at Lynette Dawson's wedding. Her statement contains the following account: "I don't remember the date, but I went to Lynny and Chris' wedding. I can't remember exactly where the wedding ceremony was held, but the reception was in a motel, that I think was on Victoria Road, but I'm not sure of the suburb. I do remember a church being across the road from the motel, but I can't say if this is where the ceremony was. During the wedding I remember helping Lynny in the bathroom with a few other ladies. She was upset about something Chris had said to her and she wanted to talk about it with us. I remember I said along with the other ladies things like, "it's not too late, you don't have to do this". I vividly remember Lynny sitting on the toilet starting to cry saying, "I love him, I want to bear his children". I remember being frustrated about it." 1. Three other witnesses have come forward. JB is unable from her direct observation to provide any evidence that is either admissible or relevant. JE and VR are in a similar position. JE is nominated by GB as having been present when GB said she heard Lynette Dawson say she had fallen down some stairs. JE does not make any reference to this incident or to the things GB recalls hearing Lynette Dawson say or anything GB may have said in response. For example, JE's statement contains the following: "I don't recall ever working on a ward with Lynny. It certainly was possible as we worked shift work, but I don't remember. I don't remember ever seeing Lynny with any bruising. I can't remember having a conversation with Lynny about her falling down some stairs." 1. In her statement, VR in fact said this: "I knew Lynette Hewitt-Simms and she was a lovely girl. At the time I knew she had a boyfriend called Chris. I knew he was around as he would come and pick her up from the nurses' accommodation and take her out. I probably met him at some point but I really can't remember. I didn't socialise with him at all.. I don't remember going to their wedding. I don't think that I ever spoke to her about her relationship with Chris. I remember I worked with her at some stage on the ward. I can't remember ever seeing her with any bruises." 1. On 6 June 2022, the Crown served Mr Dawson with a tendency notice pursuant to s 97 of the Evidence Act 1995. The further evidence upon which the Crown proposed to rely is the statement of GB. The tendency sought to be proved is Mr Dawson's tendency to have a particular state of mind, namely an animosity towards Lynette Dawson. The Crown maintains that the tendency evidence sought to be adduced bears upon the issues of whether Mr Dawson wanted Lynette Dawson out of his life and whether Mr Dawson assaulted or denigrated her before the evening of 8 January 1982. 2. Mr Dawson maintains that he would be unfairly prejudiced by the late introduction of this evidence. He also contends that it is not relevant, does not in fact constitute tendency evidence and that its introduction would lead to an undue waste of time. Unfair Prejudice 1. This trial has been underway for several weeks. Although through no fault of the Crown, this evidence has been produced very late. That is not of itself an impediment to its reception but is a matter to be taken into account having regard to the evidence in the trial so far and the significance of the evidence to proof of a fact in issue. The Crown presumably wishes to contend that because Mr Dawson acted in a violent manner towards Lynette Dawson in 1969, he has a violent state of mind or is a violent individual who would kill his wife. 2. Section 137 of the Evidence Act provides as follows: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 1. In my view, the extremely limited probative value of the evidence is clearly outweighed by the danger of unfair prejudice to Mr Dawson. Indeed, the evidence is in my view probative of nothing that can remotely be sheeted home to Mr Dawson. There is no present reason to accept the implication or inference that Lynette Dawson's statement that she fell down some stairs should be rejected because GB had a suspicion that Lynette Dawson's bruises were caused by Mr Dawson. Relevance 1. I have considerable difficulty ascribing any relevance to GB's observations. The events described are some 12 years or so removed from the date of Lynette Dawson's disappearance. GB's observations do not establish that any bruising she observed on Lynette Dawson were caused by Mr Dawson. GB's exclaimed view of the cause of the bruises is of no probative value, even assuming it were admissible. Undue waste of time 1. Section 135 of the Evidence Act provides as follows: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might-- (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 1. I have already indicated that the evidence is unfairly prejudicial to Mr Dawson. For the reason that it has no probative value, permitting the Crown to adduce it would be a corresponding waste of time. Tendency 1. Even putting to one side the fact that none of the evidence sought to be adduced implicates Mr Dawson as having pushed Lynette Dawson down stairs or as having otherwise caused her to have a black eye or bruising, the events of 1969 do not evidence a tendency to act in a particular way or to have a particular state of mind in 1982. It is a somewhat strained analysis to contend that this asserted tendency continued throughout the following dozen years in which Mr Dawson and Lynette Dawson were married, built two homes, had two children and appeared until some time in 1980 or so to have continued in an unexceptional relationship without similar incidents of violence. Tendency evidence must also be relevant. GB's opinions could not in my view rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in these proceedings. Conclusion 1. I do not consider that the Crown should be permitted to rely upon the four statements of GB, JE, VR or JB or to adduce their evidence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2022