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 1. 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." 1. 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. 2. 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… 1. 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 is reliable. Mere probability is insufficient. The reliability of the representation must be shown to be highly probable. 2. In this case, the Crown contends that Lynette Dawson's representation, that Mr Dawson had called her a "fat and ugly bitch", was made in circumstances consisting principally of the marital relationship between Lynette Dawson and Mr Dawson following the birth of their second child in July 1979 when Lynette Dawson is said to have been carrying extra weight that she could not lose following the pregnancy. The issue is not whether Ms Clarke's recollection of what Lynette Dawson told her is reliable, but whether the representation made by Lynette Dawson is itself reliable. The degree of probability of the reliability of the representation is to be measured by reference to the circumstances in existence when, and in which, it was made. 3. According to Ms Clarke's recollection, which itself may be subject to challenge in a different context if the evidence is admitted, she said that Lynette Dawson referred to having been told something by her husband that upset her. The Crown submits that it is hardly controversial that a woman who had recently given birth to a child would easily remember, or on another view would hardly have forgotten, the details of a criticism as stinging as that alleged if it were made by her husband in derogatory terms about her physical appearance caused by physiological changes during pregnancy that were beyond her control. The circumstances would have included the understandable perception of unfairness that Mr Dawson should have made such an unfair comment. The Crown contends that any such hurtful comment would in effect have stuck in Lynette Dawson's mind, especially as a young wife and mother, so as to make it highly probable that her recollection of what Mr Dawson said is reliable. Her presentation to Ms Clarke as upset and crying tended to support this. 4. In a related sense, it does not strike me as unusual or unlikely that a woman in Lynette Dawson's position at the time would confide in another woman who lived nearby. Lynette Dawson did not drive a car. Her family did not live close to her. Her house was situated in a suburb on the northern beaches that was, in relative terms, somewhat isolated: she was not within walking distance of transport but she was close to neighbours. Ms Clarke was her neighbour. The likelihood that a young mother in need of some female support would confide in another woman close by seems to me to be high. 5. Mr Dawson argued that this evidence had to be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to him. He relied upon comments such as those of the Federal Court in Conway v The Queen (2000) 98 FCR 204; [2000] FCA 461 at 244 where the Court said: "The requirement in s 65(2)(c) of the Act that it be 'highly probable' that a representation be 'reliable' in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person." 1. Mr Dawson emphasised his inability to cross-examine Ms Clarke as a circumstance that caused him unfair prejudice. That submission necessarily takes aim at the question of whether the representation that is challenged survives the scrutiny required by s 65(2)(c) before it qualifies as an exception to the hearsay rule. He also contended that the representation had little or no probative value, and none that could qualify for admission once compared to the nature and extent of the prejudice that it was likely to create. 2. In my opinion, reception of the evidence does not create unfair prejudice to Mr Dawson. That is for three reasons at least. First, as I have attempted to demonstrate, the evidence appears without significant controversy to have been made in circumstances that make it highly probable that the representation is reliable. 3. Secondly, in a judge alone trial, there is no prospect that the tribunal of fact will misunderstand or misapprehend the position that the representation has not been the subject of challenge by cross-examination or erroneously give it significance when it deserves none. In this context I note the remarks of the Victorian Court of Appeal in Director of Public Prosecutions v BB (2010) 29 VR 110; [2010] VSCA 211 at [21]-[22]: "[21] Whilst the inability to cross-examine a witness at trial is a factor to be taken into account in determining whether the admission of evidence taken in an earlier proceeding will lead to unfair prejudice to an accused, it can never be determinative: [see R v Suteski (2002) 56 NSWLR 182, [126] (Wood CJ at CL) and the cases there citied]. Its weight on that issue in any particular case must take into account the legislative intent expressed in s 65(3) that the hearsay rule is not to apply to such evidence and the fact that the trial judge can always accompany its admission with appropriate directions to the jury. [22] The evidence sought to be admitted in this case was not rendered inadmissible by any non-compliance with either s 65(3)(a) or (b) of the Act. Nor did any action of the magistrate infringe the right of either of the accused to cross-examine the complainant at the committal as they might have been advised. Any possibility of unfair prejudice to the accused can be adequately avoided by appropriate judicial direction if the complainant's evidence at committal is admitted as evidence on their trial. It is for the purpose of having available such evidence, despite the unavailability of a witness, that s 65(3) and its statutory predecessors were enacted. 1. Thirdly, although the precise way in which the Crown may be permitted to rely upon this evidence is yet finally to be determined, including most significantly whether it should be received as evidence that Mr Dawson had a particular tendency, it is at least theoretically capable of supporting a contention that it operates as some answer to Mr Dawson's assertion that he is a person of good character. 2. I consider that the statement of Coral Clarke is admissible and should be received in evidence.