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Supreme Court 17 June 2022

R v Dawson

[2022] NSWSC 812

Homicide
CRIMINAL LAW MURDER TRIAL

Citation: R v Dawson [2022] NSWSC 812
Court: Supreme Court of New South Wales
Date: 17 June 2022
Judge(s): Harrison J

Background

The accused stood charged with murder. A central issue for the Crown was proving beyond reasonable doubt that the deceased was dead, given that her body had never been located or recovered. To establish this, the Crown relied on inquiries made by a police officer across multiple government and private agencies, including births, deaths and marriages registries in several states, banking institutions, the immigration department, and the Australian Taxation Office.

The Crown sought to tender two statements by that police officer, dated 1999 and 2001, which summarised the results of those inquiries. The defence objected on the basis that the underlying source documents were inadequately identified in the statements and were not annexed to them.

The Crown moved to admit the statements as summary evidence under s 50 of the Evidence Act 1995 (NSW).

  • Whether the Crown had established the precondition under s 50(1) of the Evidence Act 1995 (NSW), namely that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the underlying documents.
  • Whether the failure to annex or adequately identify the source documents rendered the summary statements inadmissible.
  • Whether the summary evidence, taken on its face, was capable of establishing that the deceased was dead for the purposes of the murder charge.

Decision

Harrison J identified the threshold question under s 50(1) as whether the volume or complexity of the underlying documents was such that it would not otherwise be possible conveniently to examine them. His Honour noted that the words "possible" and "conveniently" operate together, with "possible" qualifying "conveniently" to underscore the rationale for permitting summary evidence where direct examination would be relevantly inconvenient.

On the evidence before him, Harrison J found that the material was either silent or insufficiently specific about the volume or complexity of the documents Constable Dawson had inspected. Without that information, the court could not be satisfied that the s 50(1) precondition was met.

On the defence's second argument, that the summary failed on its face to establish that the deceased was dead, Harrison J rejected this as a basis for inadmissibility. He characterised that concern as going to the weight and utility of the evidence rather than its admissibility.

Accordingly, his Honour deferred the tender. He indicated the Crown would need to establish, either precisely or at least generally, the volume or complexity of the underlying documents, or lead evidence explaining why that could not be advanced beyond what the statements themselves described.

Orders Made

• The tender of the summary documents is deferred until the Crown establishes the volume or complexity of the documents in question, or until evidence is led to satisfy the court that it cannot be advanced beyond the description of the documents inspected by Ms Dawson in the two statements.

Key Takeaways

  • Under s 50(1) of the Evidence Act 1995 (NSW), a court must be satisfied that it would not otherwise be possible conveniently to examine the evidence before permitting summary evidence of voluminous or complex documents. The Crown carries the burden of establishing this precondition.
  • The requirement that examination be "not otherwise...possible conveniently" operates as a compound expression: "possible" qualifies "conveniently," together reflecting a standard of relevant inconvenience rather than absolute impossibility.
  • A summary that fails on its face to establish a material fact does not thereby become inadmissible. Such a deficiency raises questions of weight and utility, not admissibility.
  • Where the volume or complexity of the underlying documents is unknown or insufficiently established on the evidence, a tender under s 50 will be deferred rather than refused outright, provided the party may yet adduce the necessary evidence.
  • Compliance with s 50(2) procedural requirements (serving a copy of the summary and providing a reasonable opportunity to examine the source documents) was not itself in dispute in this decision.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 50

Cases cited:
None cited in the judgment.