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Supreme Court 11 September 2020

R v Dawson

[2020] NSWSC 1221

Homicide
CRIMINAL LAW EXTENSIVE PRE

Citation: R v Dawson [2020] NSWSC 1221
Court: Supreme Court of New South Wales
Date: 11 September 2020
Judge: Fullerton J

Background

The accused was charged with the murder of his wife, Lynette Dawson, at Bayview, NSW, on or about 8 January 1982. He was not arrested until December 2018, following three successive police investigations spanning nearly three decades. The Office of the Director of Public Prosecutions (ODPP) had twice previously, in 2001 and 2003, determined there was insufficient evidence to prosecute.

The decision to prosecute in 2018 followed a third police investigation and coincided with extensive media coverage, most notably a sixteen-episode podcast series called "The Teacher's Pet," broadcast from May 2018. The accused entered a plea of not guilty and promptly applied for a permanent stay of the indictment.

The stay application was supported by voluminous evidence, including five lever arch folders of material, audio and video recordings of all podcast episodes (with a full 595-page transcript), other television broadcasts, and oral evidence from six witnesses, four of whom were proposed Crown witnesses at trial.

  • Whether the 36-year delay between the alleged murder (1982) and the charge (2018) caused irremediable prejudice to the accused's ability to mount a defence, justifying a permanent stay.
  • Whether pre-trial publicity, particularly the podcast, caused prejudice so severe that no jury directions or other trial management measures could remedy it.
  • Whether alleged inadequacies and misconduct across successive police investigations caused incurable unfairness to the accused.
  • Whether the ODPP's decision to prosecute was improperly influenced by the podcast and related public commentary, including communications involving the NSW Commissioner of Police, constituting an abuse of process.
  • Whether witness contamination or collusion, said to have arisen from the podcast producer's contact with prospective Crown witnesses, warranted a permanent stay.

Decision

Fullerton J dismissed the application for a permanent stay on all grounds. Her Honour considered each ground individually and also as a composite whole, finding that none, either alone or in combination, met the high threshold required for such an exceptional remedy.

On delay, the court accepted that the passage of 36 years was significant and that some investigative opportunities had been lost, including the unavailability of banking and telephone records and the deaths of certain witnesses. However, her Honour found this did not render a fair trial impossible. The apprehended unfairness fell short of the standard required, particularly given that Australian courts have consistently held that pre-trial publicity and delay must render a fair trial actually impossible, not merely more difficult.

On the podcast and pre-trial publicity, the court found that the prejudicial effects of the extensive media coverage were not of a kind incapable of being addressed by appropriate directions to a jury and other trial management measures. Her Honour noted that juries are presumed capable of putting aside prejudicial material and applying directions given by a trial judge, consistent with settled High Court authority.

On the allegation that the prosecution decision was improperly influenced by public commentary and the Commissioner of Police's engagement with the podcast's producer, the court found the evidence did not establish that the ODPP's decision was improperly motivated or constituted an abuse of process. The submission that there was actual collusion or contamination of Crown witnesses through the podcast producer's contact with them was also not pressed in closing submissions after the evidence did not support it.

Orders Made

  • The notice of motion seeking a permanent stay of the jury trial is dismissed.
  • The jury trial is not to commence before 1 June 2021 (this order does not interfere with case management orders, including any pre-trial orders applied for by either party).
  • The parties are to jointly apply to the chambers of the Criminal List Judge by 5pm on 14 September 2020 for a callover date.

Key Takeaways

  • A permanent stay of criminal proceedings remains a remedy of last resort, granted only where a fair trial is rendered genuinely impossible, not merely more difficult due to delay or publicity.
  • Extensive pre-trial media coverage, including a widely distributed podcast directly addressing an accused's alleged conduct, does not automatically warrant a permanent stay where jury directions and other trial management tools remain available as remedies.
  • Delay of nearly four decades, combined with the loss of certain evidentiary opportunities, was insufficient on its own to constitute incurable prejudice in this case, given the Crown's ability to present a case on existing evidence.
  • Prior decisions by the ODPP not to prosecute do not permanently foreclose a later prosecution if new or reassessed evidence emerges; the accused's reliance on earlier non-prosecution decisions did not give rise to an abuse of process.
  • In dismissing the collusion ground, the Supreme Court noted that a submission must be supported by actual evidence: the absence of proved witness contamination meant the ground could not be maintained.

Legislation and Cases Referenced

Legislation:
- Coroners Act 1980 (NSW) (repealed)
- Courts Suppression and Non-publication Orders Act 2010 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Jury Act 1977 (NSW)
- Police Regulation (Allegations of Misconduct) Act 1978 (NSW)

Cases:
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Hinch v The Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56
- Jago v The District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46
- Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
- Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28
- R v Davis (1995) 57 FCR 521
- R v Littler (2001) 120 A Crim R 512; [2001] NSWCCA 173
- Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
- Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 272 A Crim R 69; [2018] HCA 53
- The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
- Tuckiar v The King (1934) 52 CLR 355; [1934] HCA 49
- Volkers v R [2020] QDC 25