R v Dawson [2022] NSWSC 877

Supreme Court New South Wales

Medium Neutral Citation: R v Dawson [2022] NSWSC 877 Hearing dates: 30 June 2022 Date of orders: 04 July 2022 Decision date: 04 July 2022 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Admit specified evidence as tendency evidence. Catchwords: CRIMINAL LAW – murder trial – evidence – tendency evidence – whether proposed tendency evidence will have significant probative value Legislation Cited: Evidence Act 1995 (NSW), ss 97(1), 101 Cases Cited: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 R v Droudis (No 13) [2016] NSWSC 1350 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 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: By letter dated 8 May 2020, the Crown gave notice of an intention to adduce evidence of tendency pursuant to s 97(1) of the Evidence Act 1995, being evidence of the character, reputation or conduct of Mr Dawson to prove that he has or had a tendency to act in a particular way or to have a particular state of mind. The tendency sought to be proved is Mr Dawson's tendency to have three particular states of mind, namely: 1. animosity towards Lynette Dawson; 2. the contemplation of retaining a third party to kill Lynette Dawson; and 3. a desire that JC be his wife and the mother of his children. 1. Evidence of matters upon which the Crown proposes to rely for a tendency purpose in (a) and (c) above is independently relied upon by the Crown as evidence of Mr Dawson's motive to kill Lynette Dawson. Adjudication of the question of whether that evidence is admissible for a tendency purpose does not simultaneously affect or determine the admissibility of the same evidence for some other purpose. 2. Section 97 of the Evidence Act 1995 provides relevantly as follows: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless-- (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 1. Mr Dawson opposes the Crown's application to adduce the nominated material as tendency evidence. 2. In accordance with s 97(1)(b), the touchstone of admissibility of such evidence is whether the evidence will have significant probative value. "Significant probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. The evidence need only have significant probative value with respect to a fact in issue. It is not necessary that the evidence have significant probative value with respect to all the facts in issue. In assessing the probative value of the evidence, I am required to proceed on the assumption that the evidence is both credible and reliable: that is to say, the determination of probative value excludes consideration of credibility and reliability. That is so even if there is a risk of contamination, concoction or collusion unless the risk of those things is so great that it is not open to me, as the tribunal of fact, rationally to accept the evidence. Accordingly, I am required to assess the probative value of the evidence on the assumption that witnesses who give the evidence in question will be accepted, at least so far as concerns that particular evidence, and that the evidence in question is evidence of conduct by Mr Dawson. It is only in an extreme case where the evidence is "so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury" that I ought not to proceed on that assumption. 3. The assessment of probative value is in every case a matter of fact and degree and is influenced by the nature of the fact in issue sought to be proved or disproved. The focus is upon the fact in issue to which the evidence is said logically to relate. In assessing the probative value of the evidence, factors to be taken into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act or think in a particular way, and the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur. 4. The several factors referred to in the authorities that may assist in the assessment of the strength of the tendency inference included the following: 1. the number of occasions of particular conduct relied upon; 2. the time gaps between them; 3. the degree of specificity or generality of the conduct or tendency alleged; 4. the degree of similarity between the conduct on the various occasions, including the conduct sought to be proved; 5. the degree of similarity of the circumstances in which the conduct took place, particularly if it is possible to establish a pattern of behaviour; 6. whether the tendency evidence is disputed; and 7. the issue to which the evidence is relevant. 1. In Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [85]- [89], the Court said this: "[85] Tendency evidence has previously been referred to by this Court as a 'building block' or 'stepping stone' which provides a foundation for an inference to be drawn that an accused person has acted in a particular way or had a particular state of mind on another relevant occasion: DAO v R [2011] NSWCCA 63 at [179] per Simpson J (as her Honour then was). Her Honour continued, 'The foundation provided by the tendency evidence may be strong or weak, depending upon the nature of the evidence. The only qualification is that, to be admissible, its probative value must not be so weak as to be bereft of 'significance'. The level of generality of the evidence may affect the significance of its probative value: Townsend v Townsend [2001] NSWCA 136; Ibrahim v Pham [2007] NSWCA 215; Ford [2009] NSWCCA 306; 273 ALR 286 at [53].' [86] It is not necessary, for evidence to be admissible as tendency evidence, that the conduct occur on a number of occasions so as to evince a particular pattern of behaviour or a modus operandi. As Campbell JA explained in R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [45]: '… It is possible for a person to have a tendency to act in a particular way even if that tendency has not shown to be manifested on very many occasions. The forensic purpose of its tender is to prove that the Respondent has a tendency to act in a particular way, namely that identified in the tendency notice ... Thus, the evidence falls within the chapeau of section 97(1) and will be inadmissible unless the requirements of paras (a) and (b) of section 97(1) are met, and the requirements of section 101(2) are also met.' [87] In Ford, Campbell JA further stated: '125 … there is no need for there to be a "striking pattern of similarity between the incidents". All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged. In my view, it meets that test. 126 The respondent submits that "the phenomenon of young women, who are drunkenly sleeping after a social event, being the subject of sexual interference is unfortunately not so compellingly rare or exceptional as to give the evidence significant probative value". I do not accept that tendency evidence has to be of a tendency to do an act that is "compellingly rare or exceptional" before it can have significant probative value.' [88] His Honour's remarks have been endorsed in later decisions of this Court: see FB v The Queen [2011] NSWCCA 217 at [26]; Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481 at [40]. [89] Although neither case expressly refers to tendency evidence relating to a single incident, as is the case here, it is apparent from their Honours' respective remarks that a single incident is not for that reason precluded. A single incident some years before may provide a weaker foundation than might have been the case for a tendency sought to be proved by evidence of multiple instances of relevant conduct or conduct that had occurred in the more recent past to the event in issue. However, such considerations did not deprive the evidence in this case of significance in the sense contemplated by s 97 and considered in R v Lockyer (1996) 89 A Crim R 457 and R v Lock (1997) 91 A Crim R 356." 1. In the present case, the conduct relied upon is neither restricted to a single incident nor is it isolated in time. The tendencies contended for consist in both physical and emotional conduct or behaviour, generally in the context or setting of a marital relationship. It is important to recall that s 97(1)(b) draws attention to consideration of "other evidence adduced or to be adduced." 2. In assessing whether the disputed tendency evidence has significant probative value, two interrelated but separate matters must be considered. First, the extent to which the evidence supports the tendency. Secondly, the extent to which the tendency makes more likely the facts making up the charged offence. There is likely to be a high degree of probative value where the evidence alone or together with other evidence strongly supports the proof of a tendency and the tendency strongly supports the proof of a fact that makes up the offence charged. Importantly, the evidence does not have to be similar to the conduct in the charged offence. 3. In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, the majority of the High Court said at [39]-[40]: "[39] Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence. [40]… The test posed by s 97(1)(b) is as stated in Ford: 'the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged'. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible." 1. The Crown has submitted that in this case, if it is accepted that Mr Dawson did have one or more of the alleged tendencies, then the evidence is properly part of the evidence to be used in considering whether it is more likely that he murdered Lynette Dawson. 2. In this trial, I am sitting as a judge alone. I pause to observe that there is in that circumstance an evident tension arising from a requirement that the proposed tendency evidence be treated as both credible and reliable if, either at the close of the Crown case or ultimately, there exists a reasonable possibility that I might reach a different conclusion. It seems to me, when assessing the probative value of putative tendency evidence sitting as a judge alone, that it would be preferable, and on one view somewhat artificial not, to take account of factors apparently bearing upon the credibility or reliability of evidence proffered as tendency evidence where a jury would be "logically bound" to "discount" the evidence in the light of such factors: see The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [98]. 3. With that practical consideration in mind, and subject to the exceptions that follow, in my opinion the proposed tendency evidence has significant probative value. I acknowledge that there will be a fierce contest in this trial about the credibility and reliability of the witnesses whose evidence is said to support the existence of the tendencies for which the Crown contends. Not the least foundation for an attack on these witnesses will be the extent to which they were or may have been influenced in their recollections and even their predisposition to Mr Dawson, by the Teacher's Pet podcast and by their interactions with Hedley Thomas, the journalist said to be principally responsible for it, as well as the passage of time since the events in question. Notwithstanding my reference to the apparent tension associated with acceptance of the proposed evidence by a judge sitting without a jury, even though the evidence may appear to be unreliable or incredible, or even the product of contamination, concoction or collusion, these issues have not yet been fully debated and my view about them must therefore await final submissions from the parties. 4. The exceptions to which I referred in the preceding paragraph are dealt with in what follows.