R v Dawson

HIS HONOUR: The Crown called Peter Dawson in its case. Peter Dawson is the elder brother of Christopher Dawson. Peter Dawson was admitted to practice as a legal practitioner in 1968. He practised in the areas of criminal law and family law.

Peter Dawson was asked the following question by the Crown in his evidence in chief:

Mr Dawson answered “No” to that question. The Crown immediately sought leave pursuant to s 38(1) of the Evidence Act 1995 to cross-examine Mr Dawson upon the basis that his answer was unfavourable to the Crown. Section 38 is relevantly in the following terms:

The context in which the Crown asserts that Mr Dawson’s answer was unfavourable is as follows. During the course of her evidence, JC said this at transcript 312:

The Crown maintains that the accused had a motive to murder his wife and that part of that motive includes a desire to avoid having to distribute any part of his joint or matrimonial property with her in the event that their marriage were dissolved. The Crown relies on this evidence of JC as support for the theory that the accused was concerned to inquire of his brother about the likely or possible outcome for him of a property settlement if that occurred, and that the advice he received did not suggest a favourable outcome for him if a division of matrimonial property were pursued in the Family Court.

The Crown anticipated that Peter Dawson would have given evidence in accordance with information contained in a running sheet prepared by Detective Sergeant J Pendergast on 4 March 1999 when Peter Dawson was interviewed on that day. Paragraph 5 of the running sheet is in these terms:

The Crown contended that Peter Dawson’s answer to the question asked was evidence that is unfavourable to the Crown in accordance with that description in s 38(1)(a) of the Evidence Act. An accompanying submission, that Peter Dawson had made a prior inconsistent statement, as contemplated by s 38(1)(c) of the Act, having regard to the content of paragraph 5 of the running sheet, was ultimately not pressed.

In R v Le [2001] NSWSC 174 at [15], McClellan J expressed the view that

In Director of Public Prosecutions (Vic) v Garrett (2016) 257 A Crim R 509; [2016] VSCA 31, the Court concluded, among other things, at [69] as follows:

In my view, Peter Dawson’s evidence is unfavourable to the Crown and leave to cross-examine him should be granted. The answer to the question asked was at odds with the Crown’s reasonable anticipation that Peter Dawson would confirm the information given by Mr Dawson to Detective Pendergast and included by him in his 1999 running sheet. The fact that Peter Dawson might later contest or dispute the accuracy of that note is not to the point.

By notice pursuant to s 38 dated 23 April 2020, the Crown advised that it intended to seek leave to cross-examine Peter Dawson as though the prosecution were cross-examining him. That matter was relevant to my consideration of the matters referred to in s 38(6) of the Act.