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Supreme Court 4 July 2022

R v Dawson

[2022] NSWSC 877

Homicide
CRIMINAL LAW MURDER TRIAL EVIDENCE TENDENCY EVIDENCE

Citation: R v Dawson [2022] NSWSC 877
Court: Supreme Court of New South Wales
Date: 4 July 2022
Judge: Harrison J

Background

The accused stood trial in the Supreme Court for the murder of his wife, Lynette Dawson, who disappeared in early 1982. The trial proceeded before a judge alone, without a jury.

The Crown sought to adduce tendency evidence under s 97(1) of the Evidence Act 1995 (NSW). That evidence was directed at establishing three particular states of mind: animosity toward the deceased; contemplation of engaging a third party to kill her; and a desire for a younger woman (referred to as "JC") to become his wife and the mother of his children.

The accused opposed the Crown's application, contending that the proposed tendency evidence did not meet the statutory threshold for admissibility. The ruling addressed whether the evidence satisfied the requirement of "significant probative value" under s 97(1)(b).

  • Whether the proposed tendency evidence had "significant probative value" as required by s 97(1)(b) of the Evidence Act 1995, so as to be admissible against the accused
  • Whether the further restriction in s 101(2) of the Act, requiring that probative value outweigh the danger of unfair prejudice, applied differently in a judge-alone trial

Decision

Harrison J identified the governing test as whether the evidence could rationally affect the assessment of the probability of a fact in issue to a significant extent. Critically, the assessment of probative value proceeds on the assumption that the evidence is both credible and reliable. Considerations of credibility, reliability, contamination, concoction, or collusion are excluded at this stage, except where the evidence is so inherently incredible or fanciful that no rational tribunal could accept it.

His Honour drew on the analytical framework from Hughes v The Queen and Aravena v R, identifying relevant factors including: the number of occasions of conduct relied upon, the time gaps between them, the degree of specificity or similarity of the conduct, whether the conduct reveals a pattern of behaviour, and the issue to which the evidence is relevant. Importantly, tendency evidence need not arise from multiple incidents to possess significant probative value, although a single incident may provide a weaker foundation than evidence of repeated conduct.

Applying these principles, Harrison J was satisfied that all three proposed tendencies were supported by evidence of significant probative value under s 97(1)(b). The conduct relied upon was neither confined to a single incident nor isolated in time, and it related to both physical and emotional behaviour in the context of the marital relationship. The evidence was admissible for tendency purposes.

On the s 101(2) question, Harrison J noted that the danger of "unfair prejudice" contemplated by that provision is substantially diminished in a judge-alone trial. Questions of weight, reliability, and credibility of the tendency evidence remained for later consideration during the substantive trial.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 97(1)(b) of the Evidence Act 1995 (NSW), the admissibility of tendency evidence turns on whether it has "significant probative value," assessed on the assumption that the evidence is credible and reliable. Credibility and reliability are not weighed at the admissibility stage.
  • Tendency evidence need not arise from multiple incidents or establish a striking pattern of similarity. A single incident can suffice, though evidence of repeated conduct across time generally provides a stronger foundation for the tendency inference.
  • The relevant inquiry involves two interrelated steps: first, the extent to which the evidence supports the existence of the tendency; and second, the extent to which the tendency makes more probable a fact forming part of the charged offence.
  • In a judge-alone criminal trial, the "danger of unfair prejudice" concern underlying s 101(2) carries reduced weight. The trial judge must nonetheless later address credibility, reliability, and risks of contamination or concoction when determining the weight to be given to the admitted tendency evidence.
  • Where the same evidence is independently admissible for a non-tendency purpose (such as proof of motive), a ruling on its admissibility as tendency evidence neither determines nor affects its admissibility for that other purpose.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97(1), 101

Cases:
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- R v Droudis (No 13) [2016] NSWSC 1350