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Supreme Court 14 June 2022

R v Dawson

[2022] NSWSC 784

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

Citation: [2022] NSWSC 784
Court: Supreme Court of New South Wales
Date: 14 June 2022
Judge: Harrison J

Background

This decision arose during the murder trial of Christopher Dawson, concerning the disappearance of Lynette Dawson in 1999. The witness, Lynette Hutcheon, is the accused's sister. She was in the course of giving her evidence when the Crown made an application to cross-examine her on two matters.

The first matter concerned a police running sheet attached to a statement Ms Hutcheon signed in March 2019. That running sheet recorded that, when police visited her home in February 1999, Ms Hutcheon was unable to supply a contact number for her brother. During her evidence, the Crown played an audio recording of a telephone intercept capturing a conversation between Ms Hutcheon and the accused, which the Crown contended was inconsistent with her being unable to provide his contact details.

The second matter concerned Ms Hutcheon's evidence that she overheard her late husband, Ross Hutcheon, tell police in 1999 that he had seen the missing person, Lynette Dawson, near Gladesville Hospital on Victoria Road. The Crown's position is that this reported sighting was a lie, and that Mr Hutcheon only raised the Gladesville account after the accused had been arrested, not during the 1999 visit.

  • Whether the Crown should be granted leave to cross-examine Ms Hutcheon on the basis that her evidence was unfavourable to the Crown case, pursuant to s 38 of the Evidence Act 1995 (NSW).
  • Specifically, whether leave was appropriate in respect of: (1) the contact number issue arising from the police running sheet; and (2) her account of overhearing her husband describe the Gladesville sighting to police in 1999.

Decision

On the contact number issue, Harrison J noted that Ms Hutcheon had not, in her own evidence, stated that she was unable to provide her brother's contact number to police. The relevant suggestion came from the police running sheet annexed to her statement, not from a contrary statement she herself made. The Crown sought leave against the contingency that this running sheet note might later form part of the evidence. His Honour considered it fair to permit the Crown to put the alternative proposition to Ms Hutcheon, even though the document was not a contrary statement directly attributable to her.

On the Gladesville sighting, the Crown accepted that Ms Hutcheon was not present when her husband allegedly observed Lynette Dawson and was not said to be complicit in any falsehood. The Crown's narrower contention was that Mr Hutcheon did not in fact tell police about the Gladesville sighting in 1999, but raised it only after the accused's arrest. Ms Hutcheon's evidence that she heard her husband recount the sighting to police in 1999 was, in Harrison J's view, unfavourable to the Crown within the meaning of s 38.

Leave was granted on both issues. His Honour framed both rulings in terms of fairness to the witness, permitting the Crown to test her evidence on each disputed point through cross-examination.

Orders Made

• Leave granted to the Crown to cross-examine Ms Hutcheon regarding whether she said to police that she was unable to supply a contact number for her brother, Christopher Dawson

• Leave granted pursuant to s 38 of the Evidence Act to cross-examine Ms Hutcheon regarding the evidence she gave to police that she overheard her husband tell police he saw Lynette Dawson in Gladesville

Key Takeaways

  • Under s 38 of the Evidence Act 1995 (NSW), a court may grant leave to cross-examine a party's own witness where that witness has given evidence unfavourable to the party calling them.
  • Evidence is capable of being "unfavourable" within the meaning of s 38 even where the witness is not alleged to be lying or complicit in any deception; it is sufficient that the evidence tends against the calling party's case.
  • Leave under s 38 may be granted prospectively, against the contingency that evidence from another source may later render the witness's account contradictory or inconsistent.
  • A document annexed to a witness's statement but not itself constituting a direct assertion by the witness can still form a sufficient basis for leave to cross-examine, provided fairness to the witness is observed.
  • The Supreme Court treated fairness to the witness as a relevant consideration in exercising the discretion to grant leave, rather than treating the application as purely a matter of the Crown's forensic interests.

Legislation and Cases Referenced

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

Cases:
- No cases were cited in the judgment.