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Court of Criminal Appeal 13 June 2024

Dawson v R

[2024] NSWCCA 98

Homicide

Citation: Dawson v R [2024] NSWCCA 98
Court: Court of Criminal Appeal, New South Wales
Date: 13 June 2024
Judges: Ward P, Payne JA, Adamson JA

Background

The applicant, a former schoolteacher, was convicted of murdering his wife following a judge-alone trial in the Supreme Court in 2022. His wife disappeared in early January 1982, and he reported her missing on 18 February 1982. No reliable sightings of her were recorded after 8 January 1982. The applicant was not charged until December 2018, meaning the prosecution commenced roughly four decades after the alleged offending.

The Crown case was entirely circumstantial. It alleged the applicant killed his wife on 8 January 1982 or before noon on 9 January 1982 in order to install a teenage student, with whom he had developed a sexual relationship, as his new life partner in the family home. The applicant's defence was that the Crown had not excluded the reasonable possibility that his wife had voluntarily left the marriage in distress and remained alive after 9 January 1982.

The trial judge, sitting without a jury, returned a guilty verdict on 30 August 2022. The applicant sought leave to appeal against that conviction on several grounds.

  • Whether the verdict was unreasonable given the wholly circumstantial Crown case, and whether the hypothesis consistent with innocence was excluded beyond reasonable doubt
  • Whether the trial judge erred by declining to give himself a warning under s 165B of the Evidence Act 1995 (NSW), which applies where an accused may have suffered significant forensic disadvantage due to delay in prosecution
  • Whether the trial judge erred in relying on lies told by the applicant, beyond the five specific lies the Crown had identified as evidence of consciousness of guilt, without adequate reasoning
  • Whether the trial judge's use of those additional lies as implying consciousness of guilt was legally flawed under the principles in Edwards v The Queen (1993) 178 CLR 193
  • Whether, notwithstanding any errors in the use of lies, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied so that no substantial miscarriage of justice actually occurred

Decision

Unreasonable verdict (Ground 4(ii)): The Court confirmed that the standard for reviewing a conviction following a judge-alone trial is the same as that following a jury trial: whether it was open to the tribunal of fact to be satisfied of guilt beyond reasonable doubt. The Court approached this assessment by disregarding evidence the trial judge had rejected and by treating the Crown's five identified consciousness-of-guilt lies as no longer in play. Even on that more limited basis, the Court found the circumstantial case compelling. The deceased had close family bonds and no plausible reason to abandon her children and family voluntarily. After 8 January 1982, she made no contact with family, friends, or her employer, save for the applicant's uncorroborated account.

Section 165B warning (Ground 1): The Court found the trial judge was not required to give himself a s 165B direction. That provision is triggered only where an accused has suffered "significant forensic disadvantage" because of delay. The trial judge was not satisfied that disadvantage had been established on the particular facts, including that relevant telephone and banking records were unavailable. The Court upheld that conclusion, noting the trial judge had nonetheless taken the effects of delay into account more broadly.

Use of lies as consciousness of guilt (Grounds 2 and 3): The Court accepted that the trial judge had erred. The Crown had nominated only five lies as evidence of consciousness of guilt under the Edwards principles, yet the trial judge relied on additional lies for the same purpose without adequate reasoning. Under Edwards, a lie can only support consciousness of guilt where it is deliberate, concerns a material matter, is shown to be a lie by evidence other than the lie itself, and is not explicable by innocent causes. The trial judge's failure to properly apply this framework to the additional lies was an error.

Application of the proviso: Despite the error regarding lies, the Court applied the proviso in s 6(1) of the Criminal Appeal Act and dismissed the appeal. The eleven pillars of circumstantial evidence supporting the Crown case were of such strength that the applicant's guilt was proved beyond reasonable doubt on admissible evidence alone. The impugned statements by the applicant were, as Adamson JA observed, essentially superfluous to a case that would have been no weaker had the applicant said nothing at all. No substantial miscarriage of justice had actually occurred.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the standard for assessing an unreasonable verdict is the same whether the conviction followed a jury trial or a judge-alone trial: the question is whether it was open to the tribunal of fact to be satisfied of guilt beyond reasonable doubt.
  • A trial judge is only required to give a s 165B Evidence Act warning where the accused has actually suffered significant forensic disadvantage due to delay; the mere passage of substantial time between the alleged offending and the prosecution does not automatically trigger the provision.
  • Under the Edwards principles, a lie told by an accused can only be used as evidence of consciousness of guilt where specific criteria are met, including that the lie is deliberate, material, independently proven, and not explicable by innocent causes; relying on lies outside those criteria without adequate reasoning constitutes error.
  • Where a trial judge errs in the use of consciousness-of-guilt lies, the proviso under s 6(1) of the Criminal Appeal Act may still apply if the remaining admissible evidence independently establishes guilt beyond reasonable doubt, leaving no substantial miscarriage of justice.
  • Sufficient evidence existed in the circumstantial case, including the deceased's close family ties, her complete absence of contact after a fixed date, and the applicant's conduct in moving his new partner into the family home almost immediately, to sustain the murder conviction without reliance on the impugned lies.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Evidence Act 1995 (NSW), ss 137, 165B

Cases:
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 58
- Cooper v The Queen (2012) 293 ALR 17; [2012] HCA 50
- Dawson v R (2021) 108 NSWLR 96; [2021] NSWCCA 117
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21