Citation: R v Dawson [2022] NSWSC 810
Court: Supreme Court of New South Wales
Date: 15 June 2022
Judge(s): Harrison J
Background
The accused stood trial for the murder of his wife, Lynette Dawson, who disappeared in January 1982. The Crown sought to call four witnesses, former nursing colleagues of the deceased, who had only recently come forward and had not previously been notified to the defence as potential Crown witnesses.
The witnesses had trained with the deceased at the Royal Alexandra Hospital for Children in Camperdown from 1966. The central piece of evidence was an account by one witness, GB, who stated that one or two days after a birthday celebration in 1969, she observed Lynette Dawson with a black eye, bruises on both arms, and bruises on one leg. When asked what had happened, Lynette Dawson said she had fallen down stairs. Another nurse present reportedly exclaimed that she suspected the accused had pushed her, after which the deceased broke down crying and said she did not want to report the matter.
GB also provided an account of events at the wedding, describing the deceased becoming upset in a bathroom and expressing that she wanted to stay in the relationship. The Crown served a tendency notice under s 97 of the Evidence Act 1995, asserting that the evidence demonstrated the accused's animosity toward his wife and a tendency toward violence that was relevant to the events of January 1982.
Legal Issues
- Whether the proposed evidence was relevant to any fact in issue in the proceedings
- Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995
- Whether the evidence could properly be characterised as tendency evidence under s 97 of the Evidence Act 1995
- Whether admitting the evidence would result in an undue waste of time under s 135 of the Evidence Act 1995
Decision
Harrison J refused to admit any of the four witnesses' statements. On the question of relevance, his Honour found that GB's observations did not establish that the bruising observed on the deceased was caused by the accused. The events described were approximately 12 years before the disappearance, and GB's expressed suspicion about the cause of the bruises carried no probative value. The other three witnesses, JE, VR, and JB, could provide nothing relevant or admissible from their own direct observations. Indeed, JE and VR each stated in their statements that they had no recollection of the deceased having bruises or of any conversation about falling down stairs.
On unfair prejudice, Harrison J held that the extremely limited probative value of the evidence was clearly outweighed by the danger of unfair prejudice to the accused under s 137. There was no proper basis to reject the deceased's own explanation, that she had fallen down stairs, merely because a colleague had formed a different suspicion. The evidence could invite the jury to reason that the accused was a violent person who ultimately killed his wife, without any proper evidentiary foundation for that inference.
On the tendency evidence question, his Honour found the Crown's analysis strained. Even accepting the evidence at its highest, events from 1969 could not readily evidence a tendency to act violently or harbour animosity in 1982. The intervening 12 years included the parties marrying, building two homes, having two children, and apparently maintaining an unremarkable relationship until around 1980. Tendency evidence must still be relevant, and GB's observations and opinions could not rationally affect the assessment of the probability of any fact in issue. The evidence was also excluded under s 135 as admitting it would constitute an undue waste of time given its lack of probative value.
Orders Made
• The Crown is not permitted to rely upon the four statements of GB, JE, VR or JB or to adduce their evidence.
Key Takeaways
- Harrison J held that a witness's expressed suspicion about the cause of another person's injuries, unsupported by any direct evidence linking the accused to those injuries, carries no probative value and cannot found a tendency finding.
- A 12-year gap between the alleged conduct and the offence in question, spanning a marriage, children, and an apparently stable relationship, substantially undermined the Crown's argument that events in 1969 evidenced a relevant tendency in 1982.
- Under s 137 of the Evidence Act 1995, a court must exclude prosecution evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant; this obligation is mandatory, not discretionary.
- Evidence with no probative value cannot escape exclusion under s 135 on the basis of a tendency notice alone; tendency evidence must independently satisfy the relevance threshold.
- The late disclosure of the witnesses, while not automatically fatal to the Crown's application, was a factor taken into account alongside the minimal significance of the evidence to any fact in issue.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 97 (tendency evidence)
- Evidence Act 1995 (NSW), s 135 (general discretion to exclude evidence)
- Evidence Act 1995 (NSW), s 137 (exclusion of prejudicial evidence in criminal proceedings)
Cases: No cases were cited in the judgment.