Citation: R v Dawson [2022] NSWSC 814
Court: Supreme Court of New South Wales
Date: 21 June 2022
Judge(s): Harrison J
Background
The accused stood trial for the murder of his wife, Lynette Dawson, who disappeared on 8 January 1982. The Crown sought to tender a redacted police statement made in December 2011 by a former neighbour, Coral Clarke, who was accepted as unavailable to give evidence due to illness.
Ms Clarke's statement recorded that, on an unspecified occasion between July 1979 and January 1982, Lynette Dawson had visited her upset and in tears, and had told her that her husband had called her a "fat and ugly bitch" because she had not been able to lose weight following her second pregnancy.
The Crown tendered the statement as an exception to the hearsay rule. The accused opposed its admission, arguing it did not meet the statutory threshold and that its reception would cause him unfair prejudice.
Legal Issues
- Whether Ms Clarke's statement was admissible under s 65(2)(c) of the Evidence Act 1995 (NSW) as a representation made in circumstances that make it highly probable that it is reliable
- 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 (NSW), including by reason of the accused's inability to cross-examine Ms Clarke
Decision
Harrison J held that the statement was admissible under s 65(2)(c). The Crown bore the onus of establishing that the representation was made in circumstances making its reliability highly probable, and mere probability was insufficient. The court found that onus was satisfied on the facts: a woman who had recently given birth would, in all likelihood, accurately remember a stinging criticism from her husband about her post-pregnancy appearance, particularly one she perceived as deeply unfair. Lynette Dawson's distressed presentation to Ms Clarke at the time further supported the reliability of the account.
The court also found it entirely plausible that a young mother in a relatively isolated northern beaches suburb, without a driver's licence and geographically removed from her own family, would confide in a nearby female neighbour. This contextual assessment reinforced the conclusion that the circumstances surrounding the representation supported its reliability.
On the s 137 unfair prejudice argument, the court identified three reasons why reception of the evidence would not operate unfairly. First, the statement's high degree of reliability addressed much of the prejudice concern at its source. Second, the trial was being conducted by a judge alone, removing any risk that a jury might misunderstand or overweight evidence that had not been tested by cross-examination. Third, the evidence was at least theoretically capable of serving as a partial answer to the accused's claim of good character, and its precise use remained to be finally determined.
The court acknowledged the principle, drawn from Conway v The Queen, that s 65(2)(c) imposes an onerous threshold precisely because it carries potential for unfairness to an accused. However, the inability to cross-examine an unavailable witness, while a relevant factor, was not determinative of the s 137 question. The statement of Coral Clarke was accordingly ruled admissible.
Orders Made
• The statement of Coral Clarke is admissible and should be received in evidence.
Key Takeaways
- Under s 65(2)(c) of the Evidence Act 1995 (NSW), the party tendering a hearsay representation from an unavailable witness must establish that the circumstances in which the representation was made make its reliability highly probable; mere probability is insufficient.
- The reliability test under s 65(2)(c) focuses on the circumstances surrounding the original representation, not on the witness's capacity to accurately recall what was said to them.
- An accused's inability to cross-examine an unavailable witness is a relevant consideration in the s 137 unfair prejudice analysis, but the Supreme Court confirmed it is not determinative and must be weighed alongside legislative policy and the nature of the trial.
- In a judge-alone trial, the absence of a jury removes one significant source of potential unfair prejudice arising from uncross-examined hearsay evidence, since the tribunal of fact is not susceptible to misapprehension of its limited evidentiary weight.
- Contextual circumstances, including the nature of the relationship between the maker and recipient of a statement and the physical and social situation of the maker, are relevant to assessing whether the high probability of reliability threshold is met.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 65(2)(c), 137
Cases:
- Conway v The Queen (2000) 98 FCR 204; [2000] FCA 461
- Director of Public Prosecutions v BB (2010) 29 VR 110; [2010] VSCA 211
- R v Suteski (2002) 56 NSWLR 182 (cited within DPP v BB)