R v Dawson [2022] NSWSC 832

Supreme Court New South Wales

Medium Neutral Citation: R v Dawson [2022] NSWSC 832 Hearing dates: 22 June 2022 Date of orders: 22 June 2022 Decision date: 28 June 2022 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Admit the evidence of Linda McCarthy, Deborah Brassey, Susan Cooper, Carol Clarke and Kerry Stantscheff. Catchwords: CRIMINAL LAW – murder trial – late evidence – whether the evidence was obtained improperly or as a consequence of an impropriety – whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way it was obtained – whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant Legislation Cited: Evidence Act 1995 (NSW), ss 137, 138, 165B Cases Cited: Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550 Lee v The Queen; Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 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: It is trite to observe that an accused person in criminal proceedings is entitled to receive a fair trial according to law. A fair trial does not equate to a perfect trial. Nevertheless, Mr Dawson contends that the material which the Crown wishes to tender on this application will, if received in evidence, mean that his trial will have been unfair. That is because, according to his submission, the evidence in question must not be admitted, having regard to the terms of s 138 of the Evidence Act 1995, as it was obtained improperly or as a consequence of an impropriety and that the desirability of admitting the evidence does not outweigh the undesirability of admitting evidence obtained in the way it was obtained. These issues arise in the following way. 2. The Crown alleges that Lynette Dawson disappeared on 8 January 1982. Mr Dawson has been charged with her murder. Lynette Dawson's body has never been found. Evidence has been given in these proceedings by several witnesses who say that, since her disappearance, they have seen Lynette Dawson in various circumstances and locations. These sightings are all independent one of the others and are not closely connected in place or time. 3. One such sighting occurred at the Rockcastle Private Hospital in 1984. The evidence of Mr and Mrs Breese attests to them each having seen Lynette Dawson standing by the nurses' station at that hospital during Mr Breese's admission there for minor surgery. Mr Breese described the woman he saw wearing a nurse's uniform. Mrs Breese said she saw Lynette Dawson there dressed as a nurse as well. Lynette Dawson was a nurse. Mr Breese was called by the Crown. Mrs Breese's statement was tendered without objection. It is anticipated that the Crown will contend that the overwhelming inference from other evidence in the trial will satisfy me that Lynette Dawson is dead and that Mr and Mrs Breese are mistaken in their observations. The Crown does not suggest that their evidence is false. 4. The evidence that the Crown now wishes to lead relates to the question of whether Lynette Dawson worked at the Rockcastle Private Hospital in 1984 at or around the time that the Breeses say they saw her there. That evidence consists of statements taken in the recent weeks from five former nurses who worked at the hospital during that period, who say that no nurse called Lynette Dawson or, with one minor exception, who looked like her, ever worked with them. These women are being called because the hospital ceased to operate in the early 1990s, and no records or employment data from that period are now available objectively to demonstrate who may have worked there as a nurse at that time. 5. Because Mr Dawson maintained that the evidence of these witnesses had little or no probative value, I directed, with the agreement of the parties, that their oral evidence be taken on a voir dire. It was not suggested that the witnesses were untruthful or mistaken in their recollections so that the evidence they were able to give has been accepted at face value. Indeed, it was accepted by Mr Dawson that, in the event that their evidence were admitted, their statements could be tendered and their oral evidence could be treated as their evidence in the trial. Mr Dawson's main contention was instead that their evidence was relevantly without any value as it did not foreclose the possibility that Lynette Dawson could have worked at the hospital on different shifts without these women being aware of that fact. All of the witnesses acknowledged and accepted that possibility. 6. The relevant portions of the statements are as follows.