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Supreme Court 28 June 2022

R v Dawson

[2022] NSWSC 832

Homicide
CRIMINAL LAW MURDER TRIAL LATE EVIDENCE

Citation: R v Dawson [2022] NSWSC 832
Court: Supreme Court of New South Wales
Date: 28 June 2022
Judge: Harrison J

Background

The accused was charged with the murder of his wife, who disappeared on 8 January 1982. Her body has never been found. Several witnesses gave evidence during the trial that they had seen her alive after her disappearance, at various times and locations.

One such sighting was at a private hospital in 1984, where two witnesses said they observed a woman they recognised as the deceased working as a nurse. The deceased had been a nurse by profession.

In the weeks immediately before the hearing of this application, the Crown sought to tender statements from five former nurses who had also worked at the same hospital during the relevant period. Each stated that they had no recollection of the deceased working there. Hospital records from that era no longer existed, the hospital having closed in the early 1990s.

  • Whether the evidence of the five former nurses was obtained improperly or as a consequence of an impropriety, engaging the exclusionary discretion under s 138 of the Evidence Act 1995 (NSW)
  • Whether, if s 138 applied, the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in the manner it was obtained
  • 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)
  • Whether the lateness of the evidence and the broader issue of delay in the proceedings caused the accused significant forensic disadvantage under s 165B of the Evidence Act 1995 (NSW)

Decision

Harrison J conducted a voir dire (a hearing within the trial to determine admissibility) on the evidence of the five proposed witnesses. The accused did not challenge the honesty or accuracy of the witnesses' recollections; the primary objection was to admissibility on statutory grounds. The accused argued that the witnesses' evidence had little probative value because it could not foreclose the possibility that the deceased had worked different shifts without any of them knowing. All five witnesses acknowledged that possibility.

On the s 138 question, the court examined whether any impropriety had occurred in the way the evidence was gathered. The witnesses had discussed the case among themselves, shared photographs of the deceased, and in some instances been exposed to media coverage before being formally contacted by police. Harrison J assessed these circumstances in the context of whether the desirability of admitting the evidence nonetheless outweighed any undesirability arising from how it was obtained.

On the s 137 challenge, the accused argued that the late timing of the evidence had deprived him of the opportunity to make further inquiries about the hospital. Harrison J rejected this on two grounds. First, the evidence of the investigating detective suggested that further inquiries were unlikely to produce a different result. Second, the difficulty in obtaining information about events from 1984 was a consequence of the passage of time generally, not a specific prejudice caused by the late tender of this evidence.

The court acknowledged the broader issue of delay in the proceedings and recognised that delay is a matter to be taken into account under s 165B. However, Harrison J found that this delay did not render admission of the evidence unfairly prejudicial to the accused, and concluded that the evidence of all five witnesses was admissible.

Orders Made

• The evidence of Linda McCarthy, Deborah Brassey, Susan Cooper, Carol Clarke and Kerry Stantscheff is admissible.

Key Takeaways

  • Evidence from lay witnesses acknowledging significant gaps in their own knowledge (such as the possibility that an individual worked different shifts) is not automatically inadmissible; a court will assess whether residual probative value still exists despite those limitations.
  • Under s 137 of the Evidence Act 1995, an argument of unfair prejudice based on late disclosure of evidence will not succeed where the court is satisfied that further inquiry by the accused would not have materially altered the evidentiary landscape.
  • The Supreme Court confirmed that delay affecting a cold case is a relevant consideration under s 165B, but delay alone does not render otherwise admissible evidence unfairly prejudicial.
  • Where hospital or institutional records have been destroyed or lost through the ordinary passage of time, oral evidence from former employees about their recollections may be admitted to address factual matters those records might otherwise have established.
  • Pre-statement contact between witnesses, including group communications and sharing of photographs, is a factor relevant to s 138 analysis, but it does not automatically result in exclusion where the court finds the evidence was not obtained by conduct amounting to impropriety.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 137, 138, 165B

Cases
- Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550
- Lee v The Queen; Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20