Citation: R v Dawson [2022] NSWSC 861
Court: Supreme Court of New South Wales
Date: 1 July 2022
Judge(s): Harrison J
Background
The accused stood trial for murder. The Crown sought to tender documents from Family Court proceedings that the accused had commenced in 1983, including an affidavit sworn in support of an application to dispense with service on his wife and a later affidavit seeking property settlement orders. Those documents contained statements by the accused about his wife's disappearance and his account of her whereabouts.
The accused opposed the tender on three grounds: that the documents were obtained improperly under section 138 of the Evidence Act 1995 (NSW); that their use contravened the Harman principle (a rule requiring that documents compulsorily disclosed in litigation be used only for that litigation's purposes); and that admitting admissions contained in the documents would be unfair under section 90 of the Evidence Act.
Legal Issues
- Whether the Family Court documents were obtained improperly or in contravention of an Australian law under section 138 of the Evidence Act 1995 (NSW), such that they should be excluded
- Whether the Harman principle, as recognised in Hearne v Street (2008) 235 CLR 125, operated to prevent the Crown from using the documents
- Whether admitting the documents would be unfair to the accused under section 90 of the Evidence Act, given that they contained admissions
Decision
Section 138: Harrison J rejected the argument that the documents were improperly obtained. A detective had attended the Family Court and collected the file upon a simple request, with no subpoena or formal compulsion involved. Rule 13.07A of the Family Law Rules 2004, which restricts persons who inspect or copy documents under those Rules, did not apply because the Crown had not inspected or copied any document in that procedural sense. The court found no impropriety in the way the documents were obtained. The accused's further submission, that doubt surrounded the affidavits because he may not have had legal advice when swearing them, was rejected as "patently nonsensical": a deponent cannot at different times both affirm and disavow the truth of sworn statements.
The Harman Principle: The Harman principle applies where a party is compelled to disclose documents or information in litigation, restricting the opposing party from using that material for any purpose other than those proceedings without leave. Harrison J found the principle had no application here on two independent bases. First, the accused was the applicant who commenced the Family Court proceedings and was not compelled in any relevant sense to swear the affidavits; he chose to file them. Second, the affidavits were read in the Family Court proceedings and thereby received into evidence, which takes material outside the scope of the Harman restriction.
Section 90: The court found no basis to refuse admission under section 90. The accused had authored the documents himself for legitimate litigious purposes. Having regard to the issues the Crown was required to establish in the murder trial, there was no unfairness in admitting the evidence.
The documents were admitted and marked as Exhibit CU.
Orders Made
The Family Court documents were admitted into evidence as Exhibit CU in the trial proceedings.
Key Takeaways
- Rule 13.07A of the Family Law Rules 2004, which restricts use of documents inspected or copied under those Rules, does not apply where police investigators attended a court and collected a file upon request, without invoking any inspection or copying mechanism under the Rules.
- The Harman principle does not restrict use of documents where the author was the applicant who voluntarily commenced proceedings and chose to swear affidavits in support; compulsion in the relevant sense requires something beyond the ordinary requirements of litigation a party has themselves initiated.
- Where affidavits have been read and received into evidence in earlier proceedings, the Harman principle does not apply to prevent their use in subsequent proceedings.
- A deponent cannot rely on the absence of legal advice at the time of swearing an affidavit to cast doubt on the legitimacy of using that affidavit in later proceedings; sworn evidence does not lose its character merely because no lawyer was consulted beforehand.
- Under section 90 of the Evidence Act 1995 (NSW), no unfairness arose in admitting admissions contained in affidavits that the accused himself had drafted and sworn for his own litigation purposes.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 90, 138
- Family Law Rules 2004, r 13.07A
Cases
- Harman v Secretary of State for the Home Department [1983] 1 AC 280
- Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
- Spedding v State of New South Wales [2022] NSWSC 503
- Director of Public Prosecutions (Vic) v Natale [2018] VSC 339
- Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720