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Supreme Court 30 May 2022

R v Dawson

[2022] NSWSC 706

Homicide
CRIMINAL LAW MURDER TRIAL UNFAVOURABLE WITNESS WHETHER LEAVE TO CROSS EXAMINE SHOULD BE GRANTED

Citation: R v Dawson [2022] NSWSC 706
Court: Supreme Court of New South Wales
Date: 30 May 2022
Judge(s): Harrison J

Background

This decision arose during the murder trial of Christopher Dawson, who stood accused of murdering his wife. The Crown called the accused's elder brother, Peter Dawson, a retired legal practitioner with experience in criminal and family law, as a witness in its own case.

The Crown's theory was that the accused had a financial motive to kill his wife, partly to avoid an unfavourable property settlement if their marriage were dissolved. Central to that theory was evidence from another witness, JC, who testified that the accused had spoken by phone with his brother about what would happen to the family home if he moved out, and had relayed to her that moving out would jeopardise his property rights.

When asked in examination-in-chief whether the topic of dissolving the marriage had ever come up in phone conversations with his brother, Peter Dawson answered simply, "No." The Crown immediately applied for leave to cross-examine him as an unfavourable witness under section 38(1) of the Evidence Act 1995 (NSW).

  • Whether Peter Dawson's answer constituted "unfavourable" evidence within the meaning of section 38(1)(a) of the Evidence Act 1995 (NSW), entitling the Crown to leave to cross-examine its own witness.

Decision

Harrison J granted leave to the Crown to cross-examine Peter Dawson under section 38(1)(a). His Honour found that Peter Dawson's denial was at odds with the Crown's reasonable anticipation of what he would say, based on a 1999 detective's running sheet recording that Peter Dawson had not denied giving his brother advice about the consequences of leaving his wife, including a possible loss of 60 to 70 per cent of his assets and custody of his children.

His Honour drew on R v Le [2001] NSWSC 174, where McClellan J held that "unfavourable" should be given a broad meaning so that courts are not denied relevant evidence or the opportunity to test it. His Honour also applied the Victorian Court of Appeal's reasoning in DPP (Vic) v Garrett, which confirmed that evidence can be unfavourable even where the witness does not actively detract from the calling party's case. It is sufficient that the witness fails to give evidence the calling party contends the witness should be able to give.

His Honour noted that Peter Dawson might later dispute the accuracy of the detective's running sheet, but held that this was beside the point for the purposes of the section 38 application. The Crown had also served a formal notice of its intention to seek leave, dated 23 April 2020, which his Honour took into account as required under section 38(6).

Orders Made

• Leave granted to the Crown to cross-examine Peter Dawson pursuant to s 38 of the Evidence Act

Key Takeaways

  • Under section 38(1)(a) of the Evidence Act 1995 (NSW), a witness's evidence can be "unfavourable" to the party who called them even where the witness does not actively contradict that party's case. A failure to give expected supportive evidence is sufficient.
  • The Supreme Court applied the broad construction of "unfavourable" endorsed in R v Le, confirming that the provision should be read in a way that does not deprive the court of relevant evidence or the opportunity to test it.
  • In DPP (Vic) v Garrett, the Victorian Court of Appeal held that unfavourability can arise where a witness simply omits to give evidence the calling party contends that witness should be capable of giving. Harrison J applied that reasoning here.
  • A witness's potential future dispute about the accuracy of a prior statement recorded in a running sheet does not defeat a section 38 leave application. The question of credit or accuracy goes to weight, not to the threshold question of whether the evidence is unfavourable.
  • Section 38(6) requires the court to consider whether the calling party gave notice at the earliest opportunity. The Crown's service of a formal notice in April 2020 was a relevant factor in the court's exercise of discretion.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 38

Cases:
- R v Le [2001] NSWSC 174
- Director of Public Prosecutions (Vic) v Garrett (2016) 257 A Crim R 509; [2016] VSCA 31