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Court of Criminal Appeal 11 June 2021

Dawson v R

[2021] NSWCCA 117

Public order & justice offences

Citation: Dawson v R [2021] NSWCCA 117
Court: Court of Criminal Appeal (NSW)
Date: 11 June 2021
Judge(s): Bathurst CJ; Adamson J; Bellew J

Background

The applicant faced a murder charge relating to the disappearance and death of his wife in 1982. Before his prosecution was commenced, a popular true-crime podcast was produced and widely distributed, focusing on the case. The podcast included material that would have been inadmissible at trial and was described by Bathurst CJ as designed to incite prejudice against the applicant in a sensationalist fashion. Several public figures, including the Commissioner of Police, participated in the podcast, lending it apparent credibility.

The applicant applied to the Supreme Court for a permanent stay of proceedings, arguing that the combination of the podcast's prejudicial publicity and the extreme delay in bringing the prosecution would render any trial necessarily unfair. The primary judge refused the application (R v Dawson [2020] NSWSC 1221), and the applicant sought leave to appeal against that interlocutory refusal.

  • Whether the primary judge erred in refusing a permanent stay of criminal proceedings in light of prejudicial pre-trial publicity, particularly the podcast.
  • Whether the extreme delay in bringing the prosecution, taken alone or in combination with the pre-trial publicity, warranted a permanent stay.
  • Whether the cumulative effect of those factors was such that no directions a trial judge could give would be sufficient to remedy the prejudice to the applicant.
  • Whether further evidence sought to be adduced on appeal was admissible and, if so, what weight it should carry.

Decision

The Court of Criminal Appeal unanimously granted leave to appeal but dismissed the appeal. Because the application was an interlocutory appeal against the exercise of a discretion, the applicant was required to demonstrate error in accordance with the principles in House v The King (1936) 55 CLR 499. The Court found that the primary judge applied the correct legal test, failed to take into account no relevant considerations, and that it was not unreasonable for her to refuse the stay.

On the pre-trial publicity ground, the Court acknowledged the podcast was egregious and that the participation of respected public figures amplified its potential prejudice. However, the Court affirmed that a permanent stay will only be ordered in an extreme case where there is a fundamental defect of such a nature that nothing a trial judge can do in the conduct of the trial could relieve against its unfair consequences. The present case did not reach that threshold.

On the delay ground, the Court accepted that the delay was extreme and had led to the loss of potential lines of inquiry that might have assisted the applicant. Nevertheless, consistent with the principles in Jago v District Court of New South Wales (1989) 168 CLR 23, the delay would need to render any trial necessarily unfair such that a conviction would bring the administration of justice into disrepute. The Court found that appropriate directions at empanelment and during trial could sufficiently ameliorate the prejudice arising from delay, as commonly occurs in criminal trials held years after the events charged.

The Court also emphasised the substantial public interest in bringing persons charged with serious offences, particularly murder, to trial. A permanent stay is a measure of last resort, and courts must first consider whether less drastic curative measures, such as judicial directions to the jury, are available. The further evidence adduced on appeal was ruled admissible only in the event that error was established and the Court was required to re-exercise the discretion. As no error was found, it was unnecessary to address it.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A permanent stay of criminal proceedings on grounds of pre-trial publicity or delay will only be granted in rare and extreme circumstances, where the prejudice to the accused is incurable by any step a trial judge could take.
  • The Court of Criminal Appeal confirmed that an applicant challenging an interlocutory refusal of a permanent stay must demonstrate error in accordance with the House v The King principles, a high bar in the context of a discretionary decision.
  • Where judicial directions at empanelment and during trial can sufficiently ameliorate prejudice arising from pre-trial publicity or delay, a permanent stay is not warranted, even where that publicity is described as egregious and the delay as extreme.
  • The administration of justice places significant trust in jurors' ability to abide by directions from the trial judge, and that trust informs the reluctance of appellate courts to grant permanent stays.
  • In dismissing the appeal, the Court reinforced that the community's substantial interest in seeing persons charged with serious offences brought to trial is a weighty consideration, and fairness to an accused is not the only factor in the permanent stay analysis.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 165B
- Jury Act 1977 (NSW), ss 53A, 68C
- Coroners Act 1980 (NSW), s 19

Cases:
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Victoria International Container Terminal Ltd v Lunt [2021] HCA 11
- R v Dawson [2020] NSWSC 1221
- Pell v The Queen [2020] HCA 12
- Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Macdonald v R; Maitland v R (2016) 93 NSWLR 736; [2016] NSWCCA 306
- Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
- Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
- R v Abu Hamza [2007] QB 659
- R v Steffan (1993) 30 NSWLR 633
- Eastman v Director of Public Prosecutions (ACT) (No 13) [2016] ACTCA 65