R v Dawson

1. [1]

   HIS HONOUR: It is trite to observe that an accused person in criminal proceedings is entitled to receive a fair trial according to law. A fair trial does not equate to a perfect trial. Nevertheless, Mr Dawson contends that the material which the Crown wishes to tender on this application will, if received in evidence, mean that his trial will have been unfair. That is because, according to his submission, the evidence in question must not be admitted, having regard to the terms of s 138 of the Evidence Act 1995, as it was obtained improperly or as a consequence of an impropriety and that the desirability of admitting the evidence does not outweigh the undesirability of admitting evidence obtained in the way it was obtained. These issues arise in the following way.

2. [2]

   The Crown alleges that Lynette Dawson disappeared on 8 January 1982. Mr Dawson has been charged with her murder. Lynette Dawson’s body has never been found. Evidence has been given in these proceedings by several witnesses who say that, since her disappearance, they have seen Lynette Dawson in various circumstances and locations. These sightings are all independent one of the others and are not closely connected in place or time.

3. [3]

   One such sighting occurred at the Rockcastle Private Hospital in 1984. The evidence of Mr and Mrs Breese attests to them each having seen Lynette Dawson standing by the nurses’ station at that hospital during Mr Breese’s admission there for minor surgery. Mr Breese described the woman he saw wearing a nurse’s uniform. Mrs Breese said she saw Lynette Dawson there dressed as a nurse as well. Lynette Dawson was a nurse. Mr Breese was called by the Crown. Mrs Breese’s statement was tendered without objection. It is anticipated that the Crown will contend that the overwhelming inference from other evidence in the trial will satisfy me that Lynette Dawson is dead and that Mr and Mrs Breese are mistaken in their observations. The Crown does not suggest that their evidence is false.

4. [4]

   The evidence that the Crown now wishes to lead relates to the question of whether Lynette Dawson worked at the Rockcastle Private Hospital in 1984 at or around the time that the Breeses say they saw her there. That evidence consists of statements taken in the recent weeks from five former nurses who worked at the hospital during that period, who say that no nurse called Lynette Dawson or, with one minor exception, who looked like her, ever worked with them. These women are being called because the hospital ceased to operate in the early 1990s, and no records or employment data from that period are now available objectively to demonstrate who may have worked there as a nurse at that time.

5. [5]

   Because Mr Dawson maintained that the evidence of these witnesses had little or no probative value, I directed, with the agreement of the parties, that their oral evidence be taken on a voir dire. It was not suggested that the witnesses were untruthful or mistaken in their recollections so that the evidence they were able to give has been accepted at face value. Indeed, it was accepted by Mr Dawson that, in the event that their evidence were admitted, their statements could be tendered and their oral evidence could be treated as their evidence in the trial. Mr Dawson’s main contention was instead that their evidence was relevantly without any value as it did not foreclose the possibility that Lynette Dawson could have worked at the hospital on different shifts without these women being aware of that fact. All of the witnesses acknowledged and accepted that possibility.

6. [6]

   The relevant portions of the statements are as follows.

7. [7]

   The list annexed to Ms Brassey’s statement names eight employees of the hospital in addition to the witnesses whose evidence is the subject of this application.

8. [8]

   In her oral evidence, Ms Stantscheff was asked to clarify the meaning of paragraph 12 of her statement. That evidence was as follows:

9. [9]

   The Crown also tendered a Crime Stoppers File relating to a report from an identified informant of an alleged sighting of Lynette Dawson at the Rockcastle Private Hospital in either June or July 1984. The report includes the following details:

10. [10]

    The evidence does not identify Mr Breese as the informant, but the timing of this sighting effectively conforms to the version given by him in evidence in this case. The Crown has tendered this document as a matter of fairness on this application having regard to the similarities between the evidence given by Ms Stantscheff recalling a nurse at the hospital “with blonde hair, who was very thin” and the Crime Stoppers File referring to Lynette Dawson as someone who “had lost weight”.

11. [11]

    Two of the detectives who were involved in the investigation into the disappearance of Lynette Dawson over the years are Damian Loone and John Pendergast. Both men have since left the police force. Each has already given evidence in the trial. Mr Dawson contends that the police investigation was so poorly carried out that vital information has potentially been lost or overlooked, with the result that Mr Dawson has been denied the prospect of a fair trial. Central to that contention for presently relevant purposes is that the police were contacted in approximately 1986 by the Breeses who were hopeful of providing details of having seen Lynette Dawson at the hospital, but that these overtures were ignored. Prompt attention to this information would, on Mr Dawson’s analysis, have permitted an examination of the hospital employment records which were, it is assumed, then still in existence. Mr Dawson maintains that a failure to follow up this important lead amounted to an impropriety within the meaning of that word in s 138.

12. [12]

    Detective Loone made a note relating to the Rockcastle Hospital when the investigation resumed in 2003. The note is in these terms:

13. [13]

    Mr Loone was unable when giving evidence to identify whether the informant referred to in the Crime Stoppers File quoted above was Mr Breese. In my view, there is a very strong inference that it was him. That is because the file refers to the informant having undergone minor surgery, in June or July 1984, and that the observations could be supported by “a person who came to visit” him, all of which matters are referred to by Mr Breese in this Court.

14. [14]

    Mr Dawson contends that if this note was made in 2003 it was by then both far too late and lacking in adequate detail. It is not entirely clear who checked the records in the way referred to in that note or when it was done. The note appears on one view to have been made at a time when the investigation resumed on or about 9 September 2003. It is also not clear if it was made by Detective Loone or Detective Pendergast or by someone else. Whatever its provenance, Mr Dawson maintains that it does not demonstrate that appropriate or timely steps were taken by the police, when records and potentially other witnesses were still available, which in all probability would have clarified whether or not Lynette Dawson was working at the hospital at the time she was allegedly seen there by the Breeses. These police failings also amounted to an impropriety in Mr Dawson’s submission.

15. [15]

    Mr Loone gave evidence about the attempts to obtain records from the hospital. It was as follows:

16. [16]

    Mr Pendergast’s evidence on the topic was more limited:

17. [17]

    The Crown tendered a document on this application headed “Enquiries to obtain records for Rockcastle Private Hospital”. The document is in the form of a series of entries made by Detective Senior Constable Rowena Clancy between 14 June 2019 and 25 July 2019. These entries all relate to attempts by her to locate information from or about the Rockcastle Private Hospital with the aim of confirming, if possible, the fact that Lynette Dawson may have worked there as a nurse at the time of the alleged sighting by the Breeses in 1984. The entry for 4 July 2019 is worth noting:

18. [18]

    Without including details of the inquiries undertaken, it is sufficient to observe that Detective Clancy’s description of her inquiries as “exhaustive” is borne out by what she did.

Consideration

1. [19]

   Section 138 of the Evidence Act is in these relevant terms:

2. [20]

   R A Hulme J gave consideration to the meaning of “improper” in Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550 at [48]-[52]:

3. [21]

   The burden of Ms David’s cross-examination of Mr Pendergast and Mr Loone was that they, or at least one of them, had settled on a case theory that assumed Lynette Dawson was dead and that Mr Dawson had killed her. That approach had the result that these men, and the investigation which they headed, treated evidence suggesting that Lynette Dawson was still alive with an unwarranted and unprofessional disdain. That meant that important possible sources of (exculpatory) evidence were wrongly ignored, with the result that Mr Dawson has been deprived of an opportunity to point to evidence potentially capable of raising a reasonable doubt about the true fate of his former wife. The failure to follow up the Breeses’ report of sighting Lynette Dawson in a timely or thorough way demonstrated a failure of policing in this case which, in context, Ms David wished to characterise as evidence that should not be admitted pursuant to s 138. The evidence of the five witnesses who said Lynette Dawson was never known to them is said in those circumstances to have been obtained improperly or in consequence of an impropriety.

4. [22]

   I was referred in that context to what was said by the High Court in Lee v The Queen; Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [50]:

5. [23]

   It is important to observe that Ms David’s suggestion that Mr Loone intentionally and improperly foreclosed the existence of the possibility that Lynette Dawson was alive and that “sightings” of her were genuine was not accepted by him. Although Mr Loone did not say so in terms, the tone of his responses was to the effect that not every report that reached him was given the attention which, with the benefit of hindsight, it might have warranted, but that that was the nature of the investigation with which he was required to deal some 20 years or so after the events in question. Mr Loone did not accept that he did anything improper. The Crown maintained that even if the investigation into the disappearance of Lynette Dawson could be criticised, that did not translate into a conclusion that the evidence obtained from five nurses at the long-defunct Rockcastle Private Hospital in June 2022 was obtained either improperly or in consequence of an impropriety.

6. [24]

   The concept of impropriety includes a failure to observe standards of honesty. Improper has a cognate meaning. The context in which a less than thorough investigation of the hospital occurred is not the context in which the current witnesses were secured. It may appear looking back that more should have been done at the time to investigate the Breeses’ information. That does not in my view translate to a conclusion that recent attempts to make good the deficiencies arising from a less than perfect investigation some decades before mean that the evidence that is now sought to be tendered falls foul of the s 138 restriction.

7. [25]

   Moreover, it seems to me that the desirability of admitting the evidence outweighs the undesirability of doing so. The “way in which the evidence was obtained” does not speak to the undesirability of admitting it. It is at best neutral. In addition, the evidence gives some context to the Breeses’ observations without being fatal to it. In other words, the evidence of the five women does not mean that the Breeses’ evidence must be wrong. The desirability of admitting the evidence is also enhanced by the fact that it would be artificial to exclude the cogent recollections of witnesses who worked at the hospital at the very time when the Breeses claim to have seen Lynette Dawson.

8. [26]

   Ms David on behalf of Mr Dawson also maintained that the evidence was of little probative value. I am unable to accept that submission. It is self-evident that the evidence of the five women who worked as nurses at the hospital does not cover every day or every shift on or during which an unknown colleague could have worked. It is clearly possible that someone may have been employed as a nurse at the hospital in 1984 without ever becoming known to every other person who was working there in the same period. In order to have probative value in the present context, it is not necessary for the evidence to establish that the Breeses’ observations and recollections were wrong. It is sufficient if the evidence provides additional information with the benefit of which I can assess the reliability or credibility of that evidence. The evidence in question here has the ability to inform the dispute about whether Lynette Dawson worked at the hospital in 1984, and whether for that reason she remained alive in 1984.

9. [27]

   The evidence is also important without being conclusive or decisive about whether Lynette Dawson was alive in 1984. Evidence from the hospital records, if they had been available, would obviously be important in the quest to discover whether Lynette Dawson worked there at the relevant time. However, as Mr Dawson’s submissions accurately observe, the records would not necessarily be conclusive or decisive if there were any possibility that Lynette Dawson wished to remain undetected and worked under a different name. That possibility would not, however, make the records of the hospital unimportant.

10. [28]

    Finally, Mr Dawson submitted that I must refuse to admit the evidence because its probative value is outweighed by the danger of unfair prejudice to him: Evidence Act s 137.

11. [29]

    I have already expressed my opinion about the probative value of the evidence. The argument that its admission would create unfair prejudice is effectively based upon the fact that by reason of the lateness of the evidence, Mr Dawson has been deprived of an opportunity to make further enquiries better to inform the issue of whether Lynette Dawson can be shown to have worked at the Rockcastle Private Hospital in 1984. I disagree with that for at least two reasons. First, the evidence of Detective Clancy’s inquiries suggests quite convincingly that no investigations conducted now would likely produce any different result. Secondly, the complaint is really one that flows from the antiquity of the events with which this case is concerned. However, that is a regrettable and now unavoidable fact of life over which no-one in 2022 has any control. Ms David’s submissions include reference to the fact that difficulties with making inquiries about the hospital were prayed in aid of an ultimately unsuccessful application permanently to stay these proceedings. Delay is a matter that infects several aspects of these proceedings and is a consideration that must be taken into account on the question of whether or not Mr Dawson has, or may have, suffered a significant forensic disadvantage because of the consequences of delay: Evidence Act s 165B. I do not consider that the fact of delay in this case means that Mr Dawson is unfairly prejudiced if the evidence of the five proposed witnesses is admitted.

Conclusion

1. [30]

   In my opinion, the evidence of Linda McCarthy, Deborah Brassey, Susan Cooper, Carol Clarke and Kerry Stantscheff is admissible.