HIS HONOUR: Christopher Michael Dawson is charged that on or about 8 January 1982 at Bayview or elsewhere in the State of New South Wales he did murder Lynette Joy Dawson. Mr Dawson has pleaded not guilty to that charge. His trial before me, sitting as a judge alone, commenced on 9 May 2022.
[2]
Background
The following matters are referred to as a convenient but brief summary of the way in which the Crown puts its case. Some of them are uncontroversial but not all of them. My reference to these matters in short form is not to be taken as a finding that they have been established.
Mr Dawson and Lynette Dawson married on 26 March 1970. They were then 21 years old. As at 8 January 1982, the Dawsons were living at 2 Gilwinga Drive, Bayview with their two daughters. Mr Dawson was then a teacher at Cromer High School. Lynette Dawson was a trained nurse working at the Warriewood Childcare Centre.
JC commenced as a student at Cromer High School in 1976. She completed her Higher School Certificate at that school in 1981 when she was 17 years of age. From time to time during 1980 and 1981, JC worked as a babysitter for the Dawsons' girls at Gilwinga Drive. JC and Mr Dawson commenced a sexual relationship at some time during 1980 or 1981 and JC, who was at that time experiencing difficulties living at home with her mother and stepfather, moved into the Dawsons' house for a brief period late in 1981.
On or about 22 December 1981, Mr Dawson and JC travelled north to Queensland. Lynette Dawson remained behind with their daughters in the matrimonial home. The Crown alleges that Mr Dawson was hopeful of starting a new life with JC. However, JC became ill and missed her family. They returned to Sydney on Christmas Day. JC told Mr Dawson that she wanted to end their relationship. Mr Dawson did not want that to happen.
In early 1982, JC travelled to South West Rocks for a holiday with her sisters where she met up with some of her school friends. She stayed in a caravan park. At Mr Dawson's request, JC telephoned him every day, reverse charges, from a public phone.
The Crown alleges that on the weekend after JC went away, Mr Dawson, either alone or with the assistance or involvement of another person or other persons, murdered his wife. The Crown also alleges that Mr Dawson then or later disposed of her body at an unknown location, once again possibly with assistance from another person or other persons. Lynette Dawson's body has never been located. The Crown contends that I should be satisfied beyond reasonable doubt that she is dead.
Within the week following 8 January 1982, Mr Dawson drove to South West Rocks and collected JC. He drove her, and her sister, back to Sydney. Not long after that, JC moved into the home at 2 Gilwinga Drive, Bayview where she and Mr Dawson commenced living in an intimate relationship. Mr Dawson initially maintained that his wife had called him on several occasions after 8 January, telling him that she was away only temporarily. Mr Dawson never asserted in terms that his wife had contacted him to say she was not returning. According to Mr Dawson, in his last contact with her Lynette Dawson said that she was feeling stronger, she was happy and not to worry about her.
The Crown alleges that Mr Dawson was motivated to kill his wife in order to be able to enter into what has been described as an unfettered relationship with JC. Mr Dawson and JC continued living together at Gilwinga Drive with Mr Dawson's children, up until the time they were married there in 1984. They later moved to Queensland. JC gave birth to their daughter in 1985. JC separated from Mr Dawson in March 1990 and their marriage was dissolved later that year.
Mr Dawson was not arrested and charged with the murder of his wife until 2018.
[3]
Comment
Before Mr Dawson can be convicted of murder, the Crown must prove beyond reasonable doubt all the essential ingredients that constitute the charge. In short, the Crown must establish beyond reasonable doubt that Lynette Dawson is dead and that her death was caused by Mr Dawson's conscious voluntary act carried out or committed by him with an intention to kill her. These are not the only things that must be proved by the Crown beyond reasonable doubt to justify a verdict of guilty.
The Crown case is wholly circumstantial. The inference of guilt argued for by the Crown is drawn from a combination of the range of circumstantial facts adduced during the course of the trial. The individual facts, some more than others, gained cogency from other facts in the case. It follows that because the Crown case rests upon circumstantial evidence, I cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable possibility other than Mr Dawson's guilt.
Ordinarily, the time at which an offence is alleged to have been committed is an immaterial particular. In the present case, however, and putting aside for the moment evidence that suggests that Lynette Dawson was alive after 8 January 1982, proof by the Crown that Lynette Dawson died on or about 8 January 1982 is an indispensable link in the chain of reasoning upon which the Crown relies. The Crown must prove beyond reasonable doubt that Lynette Dawson's date of death was on or about 8 January 1982, which description includes the early morning of the following day. If there exists a reasonable possibility that Lynette Dawson was alive after 8 January 1982, Mr Dawson is entitled to be acquitted of the charge of murder. As will shortly appear, this matter is considered first.
However, as with my consideration of every aspect of the evidence in this trial, it is important to bear in mind at all times that in a circumstantial case such as this, inferences that appear to arise from particular circumstances, both in support of the Crown case and in derogation of it, should only finally be assessed having regard to all of the other circumstances that are in evidence. The circumstantial nature of the evidence in this case makes it clear that it must be considered and assessed as a whole, and not in what the authorities regularly refer to as a piecemeal fashion. One of the consequences of that, for present purposes, is that particular circumstances sometimes require consideration in more than one context. Moreover, but in a related sense, evidence that appears to be unimportant when looked at in isolation may achieve significance when other matters come to light. The reverse is equally true. This will become apparent in the course of these reasons. However, the following example may assist.
There is a wealth of evidence dealing with the events of Friday 8 January 1982. Part of that evidence demonstrates that Mr Dawson and Lynette Dawson attended marriage guidance counselling and that they returned to her workplace together holding hands and in good spirits. Evidence of events later in the evening suggests that Lynette Dawson was still in good spirits when she spoke to her mother by phone for the last time. The Crown relies upon this as evidence in support of an inference that Lynette Dawson was unlikely to have left the marriage voluntarily the following day because of matrimonial difficulties.
In contrast, Mr Dawson has contended that other evidence suggests that Lynette Dawson had some form of emotional episode that evening which tipped her over the edge and confirmed in her mind her decision to leave. There was also evidence from one of Lynette Dawson's work colleagues that upon return from counselling that day, she noticed bruising on Lynette Dawson's neck and that Lynette Dawson told her that they were caused by Mr Dawson who had put his hands around her throat in a lift on the way to see the psychologist when he said, "I'm only doing this once and if it doesn't work I'm getting rid of you". The Crown wishes to rely upon this material as evidence suggesting a violent predisposition on the part of Mr Dawson towards Lynette Dawson, as well as conduct consistent with his alleged motive to kill her. However, although not embraced by Mr Dawson as truthful evidence, a matter to which I must later return, the choking incident on one view could conversely support Mr Dawson's response to the Crown case by suggesting that it is wholly consistent with Lynette Dawson having made a decision to leave her marriage to an unfaithful and violent man of her own accord.
Accordingly, within the space of less than twelve hours on the same day, there is evidence apparently supporting an inference favourable to Mr Dawson that Lynette Dawson voluntarily decided to disappear because the marriage was in tatters, she was in an emotional state and Mr Dawson was violent. Conversely, the evidence could support an inference unfavourable to Mr Dawson that Lynette Dawson is unlikely to have made her own decision to leave because counselling appeared to have been beneficial, she was hopeful of restoring the relationship and Mr Dawson's recent violence suggests something more sinister. Added to the difficulties is the fact that the "strangling incident" is capable of supporting either inference. This small example serves to demonstrate the wisdom that in a circumstantial case one must only draw ultimate inferences from the evidence as a whole.
[4]
was lynette dawson alive after 8 january 1982?
The Crown case is that Lynette Dawson was dead by no later than sometime on the morning of 9 January 1982. There is other evidence in three broad categories, any of which if accepted would establish that she was alive after that time. First, there are statements by Mr Dawson of him having spoken to Lynette Dawson by telephone both on 9 January 1982 and after that date. Secondly, there is evidence that Mr Dawson told others about Lynette Dawson using her bankcard to make purchases later that month. Thirdly, there is evidence of a series of people who claim they saw Lynette Dawson alive in 1982, 1983 and 1984 and possibly thereafter.
Before proceeding to refer to this material, the following should be noted. Mr Dawson embraces the evidence in these three categories to support the inference that Lynette Dawson was alive after 8 January 1982. If that is accepted, Mr Dawson must be acquitted of murder. That is for the fundamental reason that the Crown will not have proved the death of Lynette Dawson as charged in the indictment, nor will the Crown have eliminated as a reasonable possibility that she left 2 Gilwinga Drive, Bayview of her own accord. However, in order properly to assess the utility of these individual pieces of evidence, they must be considered in at least two important ways. First, does the evidence stand up as credible and reliable when taken in isolation. Secondly, if the evidence stands up as credible and reliable when taken in isolation, what probative strength does it retain having regard to the wealth of other circumstantial evidence in this trial. Once again, an example may assist to understand this issue.
As appears below, Peter Breese has given evidence that he saw Lynette Dawson in a particular location in Australia in the middle of 1984. The evidence, if accepted, supports the fact that Mr Breese was where he says he was at that time. There is no reason to reject the evidence for some extraneous reason, for example, because Mr Breese is demonstrably lying or mistaken about where he was when the alleged sighting is said to have been made. The question of whether the evidence should be accepted, after listening to it and any challenge to it, remains a live one. However, evidence of that sort, in a circumstantial case, can confidently be taken into the mix of all the evidence touching the question of whether Lynette Dawson was alive after 8 January 1982.
By contrast, evidence that a particular witness saw Lynette Dawson at a particular location in Australia would necessarily be rejected at the threshold if, for example, other evidence demonstrated that the witness was not even in Australia at the time. More subtle considerations may also attend the inquiry at this first stage, such as the age and capacities of the witness, the source of the evidence and whether the witness had or may have had a motive to lie or was clearly or arguably mistaken. However, provided the evidence in question is not fundamentally flawed necessitating prompt rejection, its true value must remain to be assessed having regard to the strength or otherwise of other circumstantial evidence relevant to the issue. I propose in what follows to indicate my findings about the first way each piece of evidence should be considered. However, the significance of the evidence as a circumstance touching the ultimate issue of Mr Dawson's guilt must finally be considered in the light of all of the evidence as a whole.
[5]
Mr Dawson's telephone calls with Lynette Dawson
These calls fall into two categories.
[6]
The Northbridge Baths
Mr Dawson's record of interview with the police on 15 January 1991 contains his version of what occurred at the Northbridge Baths on 9 January 1982. It is as follows:
Q10. Thank you. Chris, in January of 1982, your wife Lyn ah, left your family home ah, in. Ah, would you care to tell me now what transpired at that time, please?
A. Prior to my wife leaving me in January '82, we had some matrimonial problems. Um, I went on a brief um, time away from home to, to try and clarify how I felt. I came back from um, a few days up here in Queensland. Lyn and I then went to marriage guidance to try and sort things out. After marriage guidance for a few days Lyn seemed um, disturbed by the results of that. She, we also at the same time had some guy erecting a shed or something who was tied up to some religious sect who um, Lyn sought some um, comfort from him so far as he was asking her come along to the meetings and getting her literature and all. On the Saturday, I had a part-time job at Northbridge Swimming Pool Baths. On that particular Saturday Lyn, had agreed with me that she was going to go over to the city markets to do shopping. I was to take our two daughters to the Northbridge Baths and she was going to go shopping and meet me back at the Baths in the afternoon. I dropped her down at Mona Vale bus stop in the morning, I went back and ah, we, my daughters and I had breakfast and then I went through to work with my girls. Lyn's mother came through to Northbridge Baths. I obviously, I was expecting Lyn to come with her mother but, and when her mother came, I sort of, asking where my wife was. She said she didn't know so we presumed she was still shopping and would meet me at work during the afternoon sometime. Um, the girl that worked in the shop called me over and said there was an STD phone call for me, she had taken the call. I went there, took the, the phone call, it was Lyn. She said she needed time away like I had had prior to um, that day and she'd ring me in a few days' time after she'd had time to sort things out. I had um, the following few weeks I had similar phone calls from Lyn, more STD calls saying that she needed extra time, that she needed more time to sort it out. Then after about the third phone call she said she needed a lot more time, she didn't know if she would be returning to me. Um, I had friends at Belrose um, Rugby League Club who worked for the police force. I asked them to try and help locate Lyn's whereabouts. A friend of mine on the Central Coast told me she had seen Lyn in a car on the Central Coast. Um, a friend of mine, Ian Kennedy, who's now moved to the Drug Squad in New South Wales and um, Detective...my twin brother's, who is now deceased unfortunately um, he was also making enquiries. Um Lyn's own brother's a member, in the police force of New South Wales all of which were trying to find, making enquires to um, discover the exact location that Lyn was. Um, in fact my friends from Belrose told me that if they located her, although they weren't supposed to tell me they would sort of let me know where she was so I could speak to her, but if she didn't want to disclose her whereabouts, they um, said they couldn't let me know where she was. For the remaining period after twelve months I was um, constantly in touch with the people I just mentioned to try and find and locate where Lyn was."
Mr Dawson was not asked during the interview whether his daughters accompanied him on the drive with his wife to the Mona Vale bus stop. The evidence is otherwise silent about this. It did not figure in any submissions.
Mr Dawson's earlier handwritten "Antecedent Report" dated 17 August 1982 referred to the Northbridge Baths incident as follows:
"Sat 9th Jan She seemed happy + had decided to go to the markets + meet me + the girls back at Northbridge Baths after 1200. I dropped her off at Mona Vale - everything seemed fine. Lyn rang the Baths about 300pm, she said she was with friends, not to worry - it was her turn and that she'd ring later that week. She rang the following Saturday and said she needed more time and wouldn't return home until she felt happy to do so."
In his statement dated 21 February 2001, Phillip Day said the following:
"7. At Christmas 1981 I did not receive the usual card from Chris and Lyn. Early in January 1982 I received a telephone call from Chris, who apologised for that omission and explained that he and Lyn were experiencing marital difficulties. Chris told me he wished to talk to me about those problems and we arranged to meet at Northbridge Pool on Saturday 9th January, 1982.
8. On Friday 8th January, 1982 I rang the home of Chris and Lyn to confirm those arrangements. I spoke only to Lyn, who told me that earlier that day she and Chris had attended counselling in respect of their marital problems. She undertook to tell Chris of my call, and that I would meet him at the pool.
9. On Saturday 9th January, 1982 I drove to Northbridge Pool, arriving there sometime between 2-3pm. Helena was already there, as were Chris and Lyn's daughters [XD] and [YD].
10. I started to talk with Chris, who told me that he had been away around Christmas, and that he was keen to make the marriage work and to sort out the problems he and Lyn were having.
11. Shortly thereafter Chris was summoned to the pool office to answer a telephone call. When he returned he advised Helena and me that the call was from Lyn, who was going away for a few days 'to sort herself out'.
12. Chris also said that Lyn had asked if I would drive Helena and the two little girls back to the Simms home. I did as Lyn had requested, while Chris stayed at the pool to finish his shift.
13. Helena and I did not discuss what had happened in front of [XD] and [YD] as we did not wish to upset them.
14. I maintained regular contact with Chris over the following weeks. On one or two such occasions I was advised by Chris that Lyn had telephoned. He also informed me that she had used her bankcard somewhere near to her home.
15. My observation of Chris at that time was that he was extremely upset by Lyn's absence, and genuinely desired that she would soon return to her family."
Mr Day elaborated on some things referred to in his statement in his evidence at a coronial inquest on 27 February 2003 as follows:
"Q. In your statement you describe what happened at the swimming pool and you say that shortly after you spoke with Chris about his keenness to make the marriage work and sort the problems between him and Lyn out, that he was summoned to the pool office to answer a telephone call, do you remember that?
A. That's right, yes.
Q. Do you remember who summoned him to the telephone?
A. I honestly don't.
Q. Would it have been do you think another staff member of the pool?
A. Probably yes.
Q. Do you know how long he was away at the pool office?
A. Twenty one years ago. Probably about ten minutes.
Q. It wasn't an abnormally long time or short time?
A. No, ten minutes.
Q. What did he tell you?
A. He said that Lyn had rung to say that she was keen to get away and have some time to herself and would I mind take Helena Simms and [XD] and [YD] home to the Simms' residence at Clovelly. He seemed quite calm about it. I didn't question that because I knew he'd already been away for a few days around Christmas time to do a similar thing and I guess we've all gone away to sort ourselves out at various times of failing relationships or with those sort of problems. So he seemed quite, a little bit surprised but quite calm about it.
Q. Did he appear upset about that?
A. Not necessarily no. The impression I got was that he'd done that and probably it was right that she should do that, that Lyn should do that.
…
Q. Did Chris talk to you about the length of time that he expected Lyn to be away for?
A. He said a few days.
Q. And those words 'a few days' do you remember them today?
A. Yes."
As with Mr Day, Helena Simms did not witness the telephone call. All she knew was what she was told by Mr Dawson. In her handwritten letter dated 21 August 1982 provided to the Mona Vale police, Mrs Simms wrote this:
"At 3pm he received a telephone call + came back to me on the seat visibly affected. It was an STD call from Lyn saying she needed some days to sort things out, was on the Central Coast with friends (no idea who it could have been) was alright. That was January 9th."
CB and JM, who worked at the Northbridge Baths in their teens, gave evidence in this trial. CB said this:
"The phone was on the counter near the entry way shutter … out of sight of the people standing on the other side of the shutter that was closed. There were two shutters, one was opened to take money across the counter. The next shutter was closed and that formed a screen between part of the counter and the outside area. That's where the phone sat."
Mr Dawson and his brother Paul are identical twins. CB conceded that she was unable to tell them apart. They both worked at the Northbridge Baths as lifeguards while she was employed there. CB gave evidence that she worked two or three shifts in the summer of 1981 to 1982. She went to primary school with JM who also worked there. It is possible that she worked there with JM but she has no clear recollection of doing so. She recalled one memorable phone call during that time, because it began with "three high pitched tones" that she termed "long distance pips", and she associated that with a phone call that originated from "out of the Sydney area". She said that the caller was female and asked to speak to one of the Dawsons. She did not remember whether it was Chris Dawson or his twin brother Paul. CB said in cross-examination that on this day that this woman called for one of the Dawson twins, the pool manager Col Stubbing was in attendance. She said that her recollection was that Mr Stubbing was standing very close to either Chris Dawson or Paul Dawson who she called over to take the call.
CB's actual evidence of these matters was as follows:
"Q. You've told us that over the summer of 1981, 1982 you worked two or three shifts. Did you take any phone calls whilst you were working over those two or three shifts?
A. Yes.
Q. What do you remember about the phone call?
A. The one phone call I remember fairly clearly is that I picked the phone up and there were long distance pips. That's when a phone call comes from out of the Sydney area. It was long distance pips in those days, I think three high pitched tones. And a female person asked to speak with … it was one of the Dawsons. I don't remember who it was.
Q. Did the female identify themselves?
A. Quite likely, but I really can't remember.
Q. Is there anything about the voice you remember other than that it was the voice of a female?
A. No.
Q. So you said the female asked for one of the Dawsons?
A. Yes, they asked for a person and I got that person who was standing nearby, but I don't remember whether it was Chris or Paul. It was one of them.
Q. You said you don't remember if it was Chris or Paul. Did either Chris or Paul take the phone?
A. Yes."
She later gave this evidence:
"Q. The person on the other receiver, you remember distinctly it was a female voice?
A. I remember it was female, yeah.
Q. Do you recall the words that that person said to you?
A. No.
Q. You don't recall who she had asked for?
A. No. She must have said one of their names because I knew who the phone call was for.
Q. So trying to clarify this as best I can, is it fair to suggest she may have said words to the effect of: 'I want to speak to Chris Dawson' or 'Paul Dawson'? Is that a fair summary?
A. Yes. I don't even know if she used their surname. I just don't know.
Q. But you then called out to one of them, as you understand it?
A. Yes."
Significantly, CB gave the following evidence in cross-examination:
"Q. Do you recall, on the day that this phone call was received by you, whether he had left the baths at a certain time, that's Col?
A. Col?
Q. Yes.
A. No, he hadn't left that day. He was there."
In re-examination, this was clarified:
"Q. [CB], you may have said this and if you did I apologise. In terms of Col and his whereabouts the day you took this phone call, did you say that your recollection is that Col was there?
A. Yes. I only recall one occasion where he was not going to be present at the baths when I was working, and that was when he said he had to go to the dentist.
HIS HONOUR: The question asked you whether he was there. Is it your recollection that he was present near you when you took the phone call or do you understand that he was there working at the baths but not close to the location where you took the call or what is the position?
A. My recollection is that he was standing very close to either Chris or Paul who I called over to take the phone call, and they were talking together."
JM said she had no memory of working with CB. JM kept a diary at the time. Her entry for 9 January 1982 contains the following notation:
"Saturday 1982 Worked in shop 8 - 5.30 didn't get any money because, as usual, Col left at 12.00 and Chris Dawson never pays."
Consistently with the suggestion that Mr Stubbing did not work past noon on weekends, Mr Dawson himself told the police the following things in his 15 January 1991 interview:
"Q60. What was … your position at Northbridge Pool?
A. Um, lifeguard, superintendent, Northbridge Pools, do you know it?
Q61. No, I don't.
A. It's a very small tidal bath where … one fellow virtually owned it for twenty/thirty years.
Q62. Ah hmm.
A. I got to know it through, I was working at North Sydney Boys. I used to take kids down there for swimming. He decided he wanted Saturday afternoons and Sundays off. So I used to have an arrangement, I'd arrive there lunchtime on Saturday. Basically just take over, there'd be sort of young kids employed in the shop while I was sitting out watching the swimmers. I was just more or less lifeguard, supervision of …"
Having regard to this evidence I am unable to accept that the version of events at the Northbridge Baths suggesting Mr Dawson received an STD call from Lynette Dawson on the afternoon of 9 January 1982 could reasonably be true. I am satisfied beyond reasonable doubt that Mr Dawson's various representations that he spoke to Lynette Dawson by telephone on a call made to the Northbridge Baths on that day is a lie. My reasons for forming that view are as follows.
CB recalls that Mr Stubbing was there when the call came in. The Crown contends that this material means that if Mr Stubbing was talking to Chris Dawson or Paul Dawson on the day she took the call, it could not have been 9 January 1982. JM certainly worked there on the day but had no recollection of working with CB, although she conceded that she could have. Mr Stubbing did not work past noon that day. Moreover, Mr Day said he was there at the pool when Mr Dawson was called to the office. Mr Day did not arrive at the baths until after 2pm, by which time Mr Stubbing would have left. The only evidence that Mr Dawson received a call from Lynette Dawson comes from Mr Dawson.
JM said that when she worked at the baths, there were times when Col Stubbing was there but not always. JM's diary entry for 9 January 1982, referred to earlier, indicates that Mr Stubbing was not at the Northbridge Baths on the afternoon of that day. JM had no recollection independently of the diary entry of working on that day. Her evidence also included the following:
"Q. Do you have any memory of taking a call for Chris Dawson on 9 January 1980? [sic, 1982]
A. No, I don't recall."
CB's evidence, which I accept, was that Mr Stubbing was present when the call was received, was standing close to either Chris Dawson or Paul Dawson "and they were talking together". The caller did not identify herself. However, JM's diary indicates that Mr Stubbing was not present at the baths on the afternoon of 9 January 1982. Accordingly, the evidence that CB received an STD call during one of her three shifts at the Northbridge Baths from an unidentified female caller who asked to speak to one of the Dawson brothers when Col Stubbing was also present need not be the subject of any doubt. On the contrary, the suggestion that it was received on 9 January 1982 must be wrong, as the serendipitously discovered diary entry penned by JM for that day makes clear. CB was not challenged concerning her recollection that Mr Stubbing was present. Moreover, CB could not say, and did not say, what date the call was received. It is possible that CB is mistaken about whether Mr Stubbing was present, but her evidence on that point was contextual and clear, and having regard to the absence of any challenge to its accuracy, or to her recollection generally, that possibility remains a matter of speculation or conjecture only. The evidence is also somewhat frail to the extent that the caller did not identify herself as Lynette Dawson, although having regard to the basis of my finding, that is not a matter of critical significance.
I should note that in characterising Mr Dawson's representation that he spoke to Lynette Dawson by phone that day as a lie, I am not intending to suggest that Mr Day's evidence that Mr Dawson told him that is also a lie. I accept that Mr Day has truthfully and reliably recalled what he was told. Helena Simms' written references to what happened on that day are in a similar category. It has not been suggested otherwise. There is, however, no truth in Mr Dawson's representations to Mr Day or later to the police that Lynette Dawson phoned him at the Northbridge Baths on 9 January 1982.
Allowing for the fact that, notwithstanding my opinion, it may be thought that the Crown has not excluded as a reasonable possibility that CB could be mistaken about Col Stubbing being present, this evidence will later be reconsidered in the light of all the other circumstantial evidence in the case touching the question of whether Lynette Dawson is alive or dead.
[7]
Later telephone calls
No one apart from Mr Dawson has ever received a phone call from Lynette Dawson since she was last spoken to on the evening of Friday 8 January 1982. In contrast, Mr Dawson asserts that he received a number of phone calls from her. None of these phone calls was received within earshot of any other person. The Missing Person's Report contains the following references to "circumstances":
"Was dropped to shops at Mona Vale at 7am 9/1/82 by Husband - Contacted Husband on 9th 10th at NorthBridge Bath by STD call - BankCard indicated that she was at Warriewood on the 12th - again called home on 15th - stated that she needed more time to think - hasn't been heard of since - May have gone to a religious organisation on the NORTH Coast."
Helena Simms' diary entries also refer to calls that she said Mr Dawson told her he had received from Lynette Dawson. In exhibit G, Mrs Simms records "9 January: Lyn phoned, left home", "10 January: Lyn rang him not coming home" and "15 January: Lyn rang Chris. Can't come home yet".
Mrs Simms' letter to the Mona Vale police contained the following reference:
"Sunday 10th Lyn contacted Chris again saying to let Barbara at Warriewood Child Minding Centre know she would be off a week owing to illness. Chris reminded her to ring me + said she would contact Chris + myself on Wednesday 13th.
…
Friday 15th I had a call from Chris around tea time saying he had heard from Lyn. He couldn't recall if there had been 'PIPS' but she said she was NORTH and needed more time, he got annoyed + said 'How much more bloody time do you need?' He asked her not to hang up as she said she wouldn't come home if he spoke like that, Chris said ring your Mum + she said she would when she felt she could. He asked her to come home we all needed her + she said 'I can't'. That was the last time we had contact with her, all this conversation was relayed to me by Chris as soon as she had rung him."
This can be compared with Mr Dawson's references to phone calls in the Antecedent Report in which there is no reference to any call on 10 January 1982. Instead, the following is recorded:
"Sat 9th Jan She seemed happy + had decided to go to the markets + meet me + the girls back at Northbridge Baths after 1200. I dropped her off at Mona Vale - everything seemed fine. Lyn rang the baths about 300pm, she said she was with friends, not to worry - it was her turn and that she'd ring later that week. She rang the following Saturday and said she needed more time and wouldn't return home until she felt happy to do so."
Despite Mr Dawson's reference to Lynette Dawson being with friends, none has come forward to contact authorities about that. The Crown maintains that that is something that might reasonably have been expected given the large amount of media attention that this case has generated.
By the time of the Antecedent Report on 16 August 1982, Mr Dawson had discontinued any reference to the phone call on 10 January 1982. That position is maintained in his Family Court affidavit sworn on 28 April 1983 when he said this:
"During the first week following her vacation of the former matrimonial home, the respondent telephoned me and said to me words to the effect that she was going away to think things over and intended to return when she had sorted things out."
By the time Mr Dawson was interviewed by the police in 1991, the number of phone calls had increased to "several", as asserted in the following questions and answers:
"Q88. All right. Now you said earlier that you'd had numerous phone calls from Lyn after she left.
A Several phone calls.
Q89. I beg your pardon, several phone calls. How may [sic, many] phone calls would you estimate that you had from her?
A. Ah, four perhaps.
Q90. Four. And do you recall when those phone calls may have taken place?
A. No. I gave the dates to Mona Vale police. That would be an accurate record, apart from that I've kept no record of the dates that they were made.
Q91. Well, do you recall whether it was within a short space of time after her leaving or did some come in say months later?
A. No. The last phone call I had I think was within say two weeks or so of Lyn leaving.
Q92. Do you recall a phone call that I mentioned earlier where you got angry with her on the phone? She said if you spoke to her like that she wasn't coming home.
A. Yes.
Q93. Do you recall that ah, you then spoke to her mother and that was on the 15th of January. And do you recall whether or not you had another phone call or phone calls from Lyn after that time?
A. I remember having that phone call where I got cranky with her.
Q94. Ah hmm.
A. And I think obviously another phone call after that, yes.
Q95. Would you have told Mrs Simms about any subsequent phone calls?
A. Probably not because at that stage [JC] had moved in with me I think or close enough to it. And um, my contact with Mrs Simms basically stopped after that."
Later at question 209 Mr Dawson said this:
"Q209. The point I'm trying to make there, Chris, ah, and trying to clarify is that in your report to police in August of 1982, you told them that the last contact you had had was on the 16th, which is a week after, and yet if [JC] can be believed she says that in the middle of February '82 you stated that you took a call from her and she was…
A. I will stand by what I said in August or whatever to the police that the last phone call was on the 16th, then that's when it was."
On 16 March 1999, Mr Dawson was recorded speaking to his brother Paul in a legally intercepted telephone call shortly after the police had visited Paul and Marilyn Dawson at their home. Part of what was recorded is as follows:
"Paul: They said how many phone calls. We said, well we didn't receive the phone calls, I said there was the one the day that she left, then there was one I think two or three days later to say she needed more time. I can't remember if there was one after that or not, originally I said I thought there was and later, I don't think, I was getting confused.
Chris: I can't even remember. There were three or four in the first week or so."
This is to be compared with what Mr Dawson said to his brother Gary in an intercepted phone conversation between them on 12 September 2018, when Mr Dawson said that he "still had contact with Lyn for like six or eight weeks".
Noting that Mr Dawson is neither required to prove nor disprove anything in these proceedings, it is not controversial that he is the only person to assert that he has been telephoned by Lynette Dawson since 8 January 1982.
The Crown submits that the fact that Lynette Dawson has not spoken to any other person is a suspicious circumstance supporting an inference that Mr Dawson's reports of receiving calls from Lynette Dawson are false reports. No one has been present when these calls are said to have been received. Mr Dawson's descriptions of the calls received have varied over time. Lynette Dawson has not called her mother, her siblings, her work colleagues, her girlfriends or any other person who has come forward to say that they were contacted by her. The calls to Mr Dawson are bereft, even on his own account, of any content beyond trite references to Lynette Dawson needing time away. Her location, welfare, accommodation, financial situation and emotional circumstances are never apparently discussed, beyond an asserted complaint that she did not like being spoken to in a particular way.
I am satisfied beyond reasonable doubt that Mr Dawson's reported telephone conversations with Lynette Dawson after 9 January 1982 are lies. In further elaboration of the matters referred to in the preceding paragraph, the following things should also be emphasised.
I do not accept that Lynette Dawson, a woman allegedly determined to abandon her home and family and to disappear from sight and all that she had would at one and the same time continue to remain in contact with the very person who was on this analysis the reason for her departure. The contention that Lynette Dawson, a woman supposedly desperate to leave a relationship, would be inclined to provide telephonic updates concerning the status of her decision to leave is simply absurd: it defies common sense. The hypothesis that necessarily embraces all that was wrong with Lynette Dawson's marriage as informing the decision she made to leave it cannot at the same time easily accommodate her maintaining a polite dialogue that does no more than provide her apparently discarded husband with the details of her current thinking.
Common sense also suggests that conversations between a married couple confronted with the awful and painful reality manifest in Lynette Dawson's alleged decision never to return would have been replete with discussion of all manner of things including at the very least the welfare of the children. I cannot accept that Lynette Dawson would have telephoned Mr Dawson merely to say that she needed more time away, or that she would ring in a few days after she had sorted things out, or that she needed extra time to sort it out or that she needed a lot more time and did not know whether she would be returning. It is in my view fanciful to suggest that conversations as lacking in content and pregnant with cliché as those described by Mr Dawson ever occurred.
It is also remarkable in my view, if Lynette Dawson took the trouble to make the phone calls that Mr Dawson said he received, that they did not continue past some date in February 1982. Perhaps more significantly in that context, subject only to question and answer 208 given to the police in 1991, Mr Dawson never describes a telephone call from Lynette Dawson in which her decision never to return is communicated to him. Once again, it seems remarkable that a woman who was troubled enough to call to justify her continuing absence did not feel the need to inform her husband when her final decision had been reached. Instead, as Mr Dawson told the police, there were "nights that [he] lay awake crying [his] heart out hoping for some contact from Lyn".
The question and answer referred to in the preceding paragraph are as follows:
"Q208. Do you recall um, being in the house one day and [JC] was there and you took a phone call and that you told Lyn, told [JC] sorry, that it had been Lyn on the phone and ah, that she said she was with friends, she was happy and well and was not coming back and not to worry about her?
A. Well, the last contact I had from Lyn was that she was feeling stronger and she [was] happy and not to worry about her. Whether it was five weeks after or, I thought it was about two weeks after the second last one, I said it was one week after. I know the last phone call I had from her was that she was feeling stronger and better and sort of, I wasn't to be concerned. Still I guess the possibility I would, would, the belief was that she would at some stage be contacting me again. Obviously that was the end of her, her messages and contact with me."
I do not take that answer to derogate from my conclusion that Mr Dawson has never described a telephone call from Lynette Dawson in which she communicated her final decision never to return. Indeed, Mr Dawson himself said that even notwithstanding the terms of that conversation, he retained the belief that Lynette Dawson would at some stage be contacting him again.
I also find it difficult to understand why Lynette Dawson did not telephone others besides him. Mr Dawson himself told the police in answer to question 180 of his 1991 interview that he also found it "extremely strange" that his wife had never contacted anybody else. After so many years of marriage, Mr Dawson was ironically the person best placed to offer such an assessment. Although described by him in that way, Mr Dawson went on to expand on his answer:
"Unless she has contacted other people and they're not forthcoming such as…I find it extremely hard to accept as well. I, I guess that perhaps she had a nervous breakdown or that she was, she was an intelligent lady so I couldn't see her being brainwashed by any sect or anything but um, so I'm at a loss to explain why she hasn't contacted her family."
In my opinion, that elaboration was offered by Mr Dawson in an attempt to ameliorate the significance of his concession that Lynette Dawson's failure to contact anyone other than him was "extremely strange".
This suggestion that Lynette Dawson would only, or indeed ever, have contacted the husband she had just decided to leave was the subject of discussion in the course of final submissions by Ms David of counsel, who appeared for Mr Dawson:
"HIS HONOUR: …What do you say to the obverse point, on the Crown's case, the curiosity that Lynette Dawson, who had left and phoned her husband, the relationship from which she walked out because it was causing her distress or whatever, he was the only person who she called in distinct contrast with the fact that she called no one else? What do I make of that, if anything?
DAVID: The defence say a number of things your Honour would make of that. It was the difficulty, we say, in the relationship which caused her to abandon the home. If Lynette Dawson had made a decision to abandon the home and her family, it is not a decision that is done in half measures in the sense that she telephoned her husband. It would be normal, given that he is also there with her children, that she would communicate with the person with whom she lived and was in a relationship, but not necessarily communicate with anybody else. Because if you made that painful decision to leave, it doesn't make any sense that she would then have relationships or telephone communication with other persons in her family because it would be impossible, for example, if she continued to communicate with Helena Simms but not see her children.
I mean, if she has made the decision to abandon her home, the defence say she is not going to communicate with other people because it is inconsistent with that abandonment. It would be impossible, for example, for her to have contacted Helena Simms and expect Helena Simms to not communicate or to endeavour to entice her back or to communicate with the children or to have a relationship which excluded for example well, the example of Lynelle Dawson, that she gave. You can't really abandon and start a new life but still hold onto some threads of it. That's not abandoning and creating a new life.
We say there is nothing to be drawn from the fact that she did not contact other people at that time.
HIS HONOUR: Your words were it was impossible that she would have contacted others. The Crown says that in the scheme of life and the normal understanding of human affairs, a woman, who presumably in distress makes a decision to leave her husband and children, might be expected, for example, to want information about them or to communicate to them other than through her husband, especially in circumstances where she, up to that point apparently, had had a close and loving relationship with her mother. What's impossible about saying to her mother 'don't worry about me, I'm okay, but you'll never hear from me again'?
DAVID: The defence would submit that that would be a very difficult call to make."
I have taken these submissions into account. I am, however, satisfied beyond reasonable doubt that Lynette Dawson never telephoned Mr Dawson after 8 January 1982. I am reinforced in that conclusion as well by reason of other circumstantial evidence that leads me to conclude that Lynette Dawson did not leave her home voluntarily. This is considered later in these reasons.
[8]
The bankcard references
The Antecedent Report includes the following mention of Lynette Dawson's bankcard activity:
"Prior to Christmas, Lyn had opened her own bank account and bankcard. Statements for January show she made purchases at Katies Narrabeen on 12.1.82 and on February's statement 27.1.82 Just Jeans Narrabeen. No further statement or payments were made on that account that arrived here." [Emphasis added]
That assertion is to be compared with Mr Dawson's affidavit in the Family Court in 1983 to the following effect:
"4. In February, 1982, I received my bankcard statement which showed that the respondent had effected two purchases on our joint bankcard at Warriewood Square in the latter part of January." [Emphasis added]
Mr Dawson was also asked about this in his 1991 interview as follows:
"Q44. Ah hmm. Chris, would you care to tell me ah, if you can remember what your banking arrangements were at the time that you and Lyn were still living together?
A. Um, we would have had joint accounts. We would have had um, bankcards to our joint account.
Q45. And prior to her starting work at the ah, Child Minding Centre, she wasn't employed was she?
A. Yes. She was employed by um, he's now Senator Peter Baume, Dr Peter Baume at North Shore Medical Centre.
Q46. Sure. But um, between that employment and her employment at the child minding centre, was there a period of unemployment?
A. Um, there may have been a very short time for um, trying to work out when, between the birth of the children or not. But um, there was very little time that Lyn was unemployed. She had you know, time off for each birth but apart from that she was basically employed most of our, middle of our married life.
Q47. All right. Your ah, banking was ah, done with the Commonwealth Bank at Narrabeen I believe. Is that correct?
A. At Mona Vale.
Q48. Mona Vale.
A. Unless our accounts were … because Mona Vale was the branch near Narrabeen in those days.
Q49. Um, the records show that your ah, that that your bank account was held at Narrabeen. Ah, and I believe that um, your banking accounts when you finally married [JC] were held at Mona Vale. Would that be correct?
A. Possibly. Yeah, probably.
Q50. All right. And on the basis of those accounts, do you remember how many accounts you had?
A. I only ever had one.
Q51. One account.
A. A joint account.
Q52. And that was a joint account. And you both had bankcards?
A. Yes.
Q53. And they both operated off that one account?
A. Yes."
Mrs Simms' letter also made mention of this topic:
"Tuesday 12th She came back to the area and purchased an article on the Bankcard for $16, I guess a cardigan as she had nothing with her, although Chris said her uniform for nursing was not there, although her papers were.
…
She used the BankCard again on the 26th to buy a pair of jeans but that was the last time as the account used to go to the Warriewood Child Minding Centre + they would notify Chris it was there.
I have contacted the CS Bank Narrabeen but her book has never been operated on.
The BankCard No is 496 62 205 014186 and addressed to the Child Minding Centre Warriewood. I tried to find out if she had opened another one with a new address but they would give no information as I was not the holder."
The source of Mrs Simms' information is not evident from her statement. The Crown contends that it came from Mr Dawson.
Apart from Mr Dawson, Barbara Cruise, Lynette Dawson's employer, is the only person who claims to have seen her bankcard statement, although she could not recall seeing anything that indicated where she might be. She gave this evidence:
"Q. The bankcard correspondence that had been coming to the childcare centre, did any correspondence come after 11 January 1982?
A. Yes.
Q. What did you do with it?
A. I'm ashamed to say I opened it.
Q. Why did you open it?
A. Because I was curious. I had my doubts at that stage and I was interested. But I honestly cannot recall what was on it.
Q. Did you look at the statement?
A. Yes, I did.
Q. Did you see anything that would give you any information about the whereabouts of Mrs Dawson?
A. Not that I recall.
Q. After you had received the statement you've told us you opened it. Did you keep it?
A. No. I rang Chris Dawson and he collected it, I believe."
Paul Dawson's wife Marilyn Dawson gave evidence on this topic:
"Q. Did the topic of bankcard transactions made by Lynette Dawson come up in conversation in your hearing after the last time you saw her, Lynette Dawson, that is?
A. Well, a topic of bankcard transactions came up, yes.
Q. How many times, if ever, did you see a document that had bankcard transactions said to have been made by Lynette Dawson?
A. I don't think I ever saw a bankcard statement that said that."
Paul Dawson also spoke about this:
"Q. How many times, if ever, were you shown a bankcard statement for Lynette Dawson?
A. I can't remember ever being shown a bankcard statement for Lyn Dawson."
JC was taken to a statement that she gave to the police on 18 September 1998, in which she said this:
"In 1982 I recall see something a bankcard statement at the house which indicated a transaction involving something connected to an optical purchase. I cannot remember how much it was or any other details or who made the transaction. I cannot remember the circumstances of my actual seeing this statement but it seemed to be an indication that Lyn was still around. Lyn used to wear contact lenses and spectacles."
JC confirmed that she gave similar evidence at the coronial proceedings in 2003 in the following terms:
"Q. Did you ever see a bankcard statement come into the house?
A. I can't recall I think I might have.
Q. Can you remember when that was?
A. Very early in 1982."
It is extremely difficult to know what to make of this. The only evidence of the alleged bankcard transactions by Lynette Dawson is what Mr Dawson has told other people. It is obvious that if the evidence raised the reasonable possibility that Lynette Dawson made bankcard purchases after 8 January 1982, it would be fatal to the Crown case. The documents themselves are not available. Mr Dawson says it is unsurprising that he did not keep them as he had no reason at the time to suspect that they would ever achieve significance. He also maintains that if the present proceedings had been prosecuted with alacrity, the documents would in all likelihood have been available for inspection and that they would exculpate him. However, the question of how properly to assess the extent of any alleged prejudice in these circumstances is not one sided: the existence and the content of the statements are in the realm of conjecture.
Any final assessment of the significance or otherwise of this evidence must await a consideration of all the other circumstantial evidence in the case, considered as a whole and not in a piecemeal fashion.
[9]
The sightings
These are dealt with in chronological order.
[10]
Ray Butlin and Sue Butlin
Sue Butlin died in May 1998. Ms Butlin is mentioned in Mrs Simms' diary entry for 18 May 1982 under a notation that appears to record information provided by Mr Dawson:
"Bumped Sue & Leanne at Quay. Chris rang. Sue thought she saw Lyn 5-6 weeks earlier at Gosford."
Mrs Simms' diary entry for 20 May 1982 reads:
"Rang Chris. Rang Sue at Gosford. Saw Lyn 5 weeks ago there."
Following this, Mrs Simms went to Gosford and put an advertisement in the local paper with no evident response. Mrs Simms referred to this apparent sighting in her August 1982 letter to the police:
"Around about the same time or earlier another friend of Lyn's thought she saw her in a car outside a fruit place she worked at on the way into Gosford so I put an advertisement 4 times in the 'Central Coast' paper."
The Crown has noted that not insignificantly in the scheme of things, Sue Butlin's sighting or report of an alleged sighting would appear to be the reason why the 1990 investigation into Lynette Dawson's disappearance was suspended. Former Detective Maygar said that he did not recall speaking to Sue Butlin and if he had there would be a duty book entry. There is no such entry. Mr Maygar said he presumed that someone from the Missing Persons Unit or Mona Vale police station spoke to her. Mr Maygar never saw a statement from Sue Butlin.
Ray Butlin gave evidence about what his wife told him she had seen. Mr Butlin managed the Gosford Rugby League team in 1979 where Mr Dawson had coached and played, and he and his wife became very friendly with the Dawsons. They mixed socially.
In the 1980s, Mr Butlin's wife commenced working at a fruit barn on the Pacific Highway at Kulnurra. Mr Butlin gave this evidence of what his wife told him:
"Q. After your wife Sue commenced working at that fruit barn, did the topic of Lynette Dawson come up in conversation between you and Sue?
A. Yes.
Q. Do you remember the exact words that Sue used? If not, tell the Court the substance of what she said to you please.
A. I don't recall the exact words. The substance was that she had saw a person that she believed was Lynette Dawson. She walked towards her, and the woman proceeded without turning around and got into a car and drove off.
Q. How many times did that event that you've just told the Court about come up in conversation between you and Sue?
A. No more than twice.
Q. If I heard your answer earlier correctly, you said the words 'without turning around'. Is that what you said?
A. Yes, sir that's what I said.
Q. Who were you referring to when you said, 'without turning around'?
A. The person that Sue believed was Lyn.
Q. Had did she get into the car?
A. How did she get into the car?
Q. Yeah, how did the person get into the car without turning around?
A. That wasn't discussed.
Q. What other details did your wife Sue give you at any time concerning what she said she saw on that day concerning Lynette Dawson?
A. No more than that; that she had seen a woman that she believed was Lynette Dawson, she called her name, the woman proceeded just towards the car and got in the car."
In cross-examination, Mr Butlin said this:
"Q. Did your wife tell you that she'd seen Lynette Dawson shortly after she had seen her, did she tell you that?
A. Yes.
Q. And was that the same day?
A. Yes. I believe it was the same day. I don't know exactly.
Q. And at the time that she told you that you were aware that Lynette Dawson had left her home?
A. Yes.
Q. And so it was the case, wasn't it, that this was a matter of some interest that Sue, your wife, had seen Lynette Dawson?
A. Yes."
Mr Butlin was also taken to an interview that he gave to the police in which he agreed that his wife had told him she had seen the woman she recognised as Lynette Dawson "front on" and that she had told him she was "adamant" that the woman she saw was Lynette Dawson:
"I thought about it quite a bit and I can recall that Sue mentioned that she had seen Lynette Dawson and, ah, she was positive that it was Lyn, and she approached Lyn and Lyn moved off."
It is a matter of no controversy in these proceedings that Lynette Dawson did not drive. Ms Butlin's alleged sighting, fleeting at best, would place Lynette Dawson at the Kulnurra fruit barn getting into a car and driving off. Mr Dawson has submitted that that expression is capable of accommodating the concept that she got into a car and was driven off. It follows that the woman seen by Ms Butlin is highly unlikely to have been Lynette Dawson if she drove away by herself.
In my view, this conundrum is best resolved by reference to other circumstantial evidence touching the likelihood or otherwise that Lynette Dawson was alive after 8 January 1982.
[11]
Ross Hutcheon and Lynette Hutcheon
It is convenient to consider their evidence together.
Six days after Mr Dawson was arrested on 12 December 2018, Ross Hutcheon sent an email via Paul and Marilyn Dawson to Peter Dawson, who is a solicitor. That email is in these terms:
"I was working at the time, driving along Victoria Rd at Gladesville heading towards Parramatta. Not sure if it was morning or afternoon. It was a bright sunny day. I was in vicinity of Gladesville hospital when I noticed a woman on the other side of the road standing at the bus stop, I believe it was Lyn Dawson I thought about stopping but said to myself, no she wants to make a break from Chris, so may it be. I continued driving but then decided to turn around and go back to the bus stop. I turned around but by the time I got there she was gone. I assume she had boarded a bus. At the time I was sure it was Lyn and the fact she was in close proximity to the hospital confirmed it for me.
I've never mentioned this before, which is a big mistake on my part considering what has happened Some time after Lyn went missing two police officers a male and a female, both young visited our place at Cromer. They stated that they were just tying up a few lose [sic] ends regarding the case. They asked questions like did you ever hear them arguing etc I told them about the Gladesville incident which they noted. Lyn of course can verify that the police had been told about the sighting.
I might add that Lyn and I had never heard a cross word uttered between Chris and Lyn in all the time that they lived with us at Cromer. Ross"
On 26 February 1999, Ross Hutcheon and his wife Lynette Hutcheon were visited by Detectives Pendergast and Gill at their home in Cromer. Although these officers have no independent recollection of the visit, Detective Gill produced a running sheet a few days later that says this:
"About 2pm 26/2/99 Det Sgt Pendergast and Det Gill visited 8 Windara Place, Cromer where they interviewed Lynette Joan Hutcheon, the sister of Christopher Michael Dawson. Her husband Ross David Hutcheon (born 17.7.39) was present at this time.
The following points were established during the interview:-
1. Neither Lynette Hutcheon or Ross Hutcheon have ever had any contact with the Missing Person, Lynette Dawson since her disappearance.
2. The only relative information since this time was some years ago, possibly around 1985, either Christopher or Paul told her that they had met an unknown policeman at their Sydney High School reunion and that this policeman had stated he had seen the Missing Person in a hippy community around Byron Bay.
3. Det Sgt Pendergast indicated to Lynette Hutcheon and her husband that police were making routine enquiries into longstanding missing persons and that Lynette Dawson was one such person. Det Sgt Pendergast stated that members of Dawson family had been interviewed but that there was no further information to suggest Lyn Dawson's whereabouts. It was therefore necessary to now interview family members of her then husband Christopher Dawson."
Ross Hutcheon's alleged sighting came to the attention of the police after Mr Dawson's arrest. He then lived in Perth and was electronically interviewed there by police on 13 March 2019. He described having seen Lynette Dawson on Victoria Road, Gladesville in the following terms:
"Q103. Mmm. Well, maybe, maybe it's a good opportunity to just talk about that. Can you, can you tell me about that?
A. Yeah. I, I, I used to work as a, an insurance surveyor. My job was to inspect properties and inspect ..... um, fires et cetera. And, ah, I was on a job and I was driving along Victoria Road at, um, Gladesville from the city heading towards Parramatta. On passing Gladesville Hospital on my left I happened to glance to the right, and I saw Lyn standing at a bus stop. She looked just like the Lyn that I knew, same colour hair, same hairstyle, no sunglasses, no obvious attempt to disguise herself or anything like that. And, ah, so I, I thought I'll stop and say hello and I thought, no, that's pointless because she's walked out on Chris. So, I kept on driving and then I had a, I, I changed my mind I thought I will go back. Not too sure how far I drove, it might've been, ah, half a kilometre or something like that, and I thought I will go back and say, at least say hello. And I did a U-turn, and by the time I got back to the bus stop, she was gone ..... another thing, ah, that convinced me at the time I was seeing Lyn Dawson, was the fact that it was opposite a hospital where, and she was a nurse. And she'd been at work and she was now, um, going somewhere, home …
Q104. Mmm.
A. … whatever. And that's what happened with my, ah, sighting."
Mr Hutcheon insisted that he had previously told Detective Pendergast and Detective Gill about this sighting in 1999. Detective Pendergast said that if he had known of this sighting, bearing in mind that he was conducting an investigation into the disappearance of the very person Mr Hutcheon asserts he saw, he would have included it in the running sheet and would have taken a statement from Mr Hutcheon: it was a piece of firsthand information that he would have welcomed.
Mr Hutcheon told the police in this interview that he told his wife about the sighting. He said he did not tell Mr Dawson "or anybody at all about what had happened, because I thought, well, she wants to be left alone in peace and quiet, why upset the boat". Despite that view, Mr Hutcheon said, "Oh, I mentioned it to the police, yeah, when they came and took notes, yeah. But other than that I didn't say anything." Mr Hutcheon recalled that he told the police of the incident "three months, six months, something like that" after the event, although it "might've been a bit longer, but I don't really know, but it was, it wasn't years after." In fact, it was on his account something in the order of about 15 years later, when he was visited by police at his Cromer home. Mr Hutcheon said that the police asked a series of questions about how Mr Dawson and Lynette Dawson got on together and said, "then I told them, yeah, and then I told them about the Gladesville incident, and they said, oh, good right they took notes." He said that the Cromer visit was the only time that he had been visited by the police in relation to Lynette Dawson's disappearance.
Mr Hutcheon said that he did not even draw this incident to the attention of Peter Dawson at the time of the inquests into Lynette Dawson's disappearance in 2001 and 2003. He said that this was because "I didn't think that all this, I guess, you know, to ever get to this stage I think. I think that was my reason." He was then asked the following questions:
"Q237. And why do you think it would never have got to this stage?
A. 'cause I don't think Chris would've done, you know, done something like that.
Q238. What was it that, um, re, obviously recently it's um, you've spoken about it, what was it that brought that up, you to then tell somebody about…
A. Oh, well, things started to get very serious when he, especially when he was charged and what have you. Oh, gee, I better do something about this."
Mr Hutcheon's attention was then drawn to the terms of the running sheet of the 1999 Cromer interview and to the fact that it contained no reference at all to Mr Hutcheon's sighting at Gladesville. The following questions and answers are instructive:
"Q280. …first, before I ask you anything about it?
A. No mention of Gladesville.
Q281. No, there's not.
A. That's wrong.
Q282. So, you're certain you told them about it?
A. It, certain. That's wrong. That's absolutely wrong."
At the committal hearing on 13 February 2020, Mr Hutcheon said that he did not tell Peter Dawson that he claimed to have seen Lynette Dawson until "very late". He said he could not be sure of the date but said that it "could have been three, four years ago". He said, "it certainly wasn't way back when I told the police". He said, "the only people I spoke to regarding this sighting were the two police that came to our house in Cromer and to my wife". This evidence then followed:
"Q. Mr Hutcheon, how did you tell Peter Dawson about this claimed sighting by you of Lynette Dawson?
A. I'm not too sure, I'm sorry. I'm not too sure how I told him now.
Q. In terms of the time, was it before or after Christopher Michael Dawson was charged with the murder of Lynette Dawson?
A. It was probably after. I'm not certain. I'm not too sure when he was charged. Being in Perth, I wasn't that au fait with everything that was happening in Sydney, except for the occasional time that I might see it on the news. I didn't - I wasn't talking to Peter or to Chris about what was going on, they didn't talk to me about it.
Q. It's a matter of public record that there were two inquests into the disappearance of Lynette Dawson. Were you aware of those at the time?
A. Yes, I was. If you're getting - if you're getting to the pit why I didn't say anything at all, I had already spoken to the police. As far as I was concerned, the police had every detail I saw at the sighting. I thought the system knew.
Q. Why, if that's true, did you see fit to contact Peter Dawson about this claimed sight of Lynette Dawson after Chris Dawson was charged by the police with Lynette Dawson's murder?
A. I thought it's about time I spoke up because it didn't appear as though, you know, my evidence had been looked into. Then I mentioned it to Peter and it all went on from there. I made a very, very, very big mistake by not stopping the car in the first place and talking to Lyn. The other mistake I made was I should have told everybody, everybody that I know what it happened, but at the time, I just didn't realise the whole implications of the whole issue."
Mrs Hutcheon gave this evidence:
"Q. I turn then to your husband and what he told you. When did he tell you that he'd seen Chris' wife Lynette?
A. When he got home that night.
Q. What year was that?
A. I have … it was just after she'd gone. About a couple of weeks after she'd gone so it must have been … I have no idea what year.
Q. What did he say to you?
A. He said that he'd seen Lyn that day and that he'd gone around the block and by the time he sort of got round the block she'd gone. So he assumed she'd got on the bus. So she'd been at the bus stop.
…
Q. Did you telephone any of your brothers and tell them that Lynette had been seen?
A. No. If I'd known this was all going to happen. I just assumed that she would come home or they'd sort it out or she'd, you know, things would work out. If you can see in the future and … and know that what's going to happen then you'd probably take more notice but it was … people had seen her. I just assumed that she would be coming, you know, back home or doing, you know, working it out.
Q. You know that there was an inquest into the disappearance of Lynette, Chris' wife Lynette, two of them; the second one was in 2003. Did you know about that at the time?
A. No, I didn't realise about the second one. I heard about … I knew there was the first one but I didn't realise there was a second one but I would have been in Western Australia at the time.
Q. Well, do you remember the police coming to speak to you at your home in Cromer in 1999?
A. Yes.
Q. How many of them were there?
A. Two.
Q. What did they look like?
A. A male sergeant and a young girl constable.
Q. What questions did they ask you?
A. They asked me about phone numbers for the rest of the family.
Q. Did you have those phone numbers?
A. I had some of them. I think I provided the ones that I had except for my parents because I didn't want them … if it was necessary.
Q. Did you have your brother Chris Dawson's phone number at that time?
A. Yes.
Q. Apart from asking you about phone numbers for other family members what else did the police ask you?
A. They asked if we'd seen … if I'd seen Lyn since she'd disappeared. They talked about the fact that if she didn't want … didn't want to come home she didn't have to. And they said it was … that they were following up about missing people in the area and mentioned Trudy Adams and said there were some other people who'd disappeared.
Q. When the police spoke to you did they speak to your husband Ross at the same time?
A. Yes, they did.
Q. So anything that was said by your husband Ross, was it able to be heard by you?
A. Yes. We were both sitting next to each other.
Q. The two police officers, you and your husband Ross together in one room being questioned and giving answers, is that the case?
A. Yes. Well, it was … they didn't it was … it wasn't such a … it was more like a, you know, they'd come and very relaxed and just more chatting because I thought it was … I did believe it was quite odd that they needed to get phone numbers from me when, you know, they would have better resources than I would. If they could find me they should have been able to find them because they were in the phone book.
Q. What did you hear your husband Ross saying to the police about the last time he saw Lynette Dawson?
A. He … he said exactly as he told me, that he'd been driving because he drove for work. He was on his way to a job and he passed her and he was driving slowly along and he saw her and he thought that it was Lyn and then he thought I better go, I'll go around and check and see if she's okay and by the time he got back she'd gone."
Mrs Hutcheon agreed that shortly after that visit from the police, she called her brother Chris "to alert him that they may be calling [her] mother and father who have had heart problems and [she] wanted him to let them know that they may be interviewed". That phone call was recorded and played to Mrs Hutcheon during her evidence. It is clear that she did not mention to Mr Dawson that her husband had just told the police that he had seen Lynette Dawson on the road at Gladesville. When asked why she did not mention this, Mrs Hutcheon gave the following answer:
"A. Well it … and you heard the conversation. It didn't come up. I didn't tell him everything else that was in the … in the conversation. I … it … as I said, you know, if I'd known it was going to come up now I would have … I would have listed everything that we said but I … it wasn't important. We still thought that she would come … come home or she would be, you know, be around. It wasn't … it wasn't important to me to tell him at that stage. I was more concerned about the girls and my parents."
Having regard to the terms of her phone conversation with Mr Dawson, Mrs Hutcheon was asked the following:
"Q. The truth is that when the police were there at your place in Cromer in 1999, your husband, Ross, did not tell them that he had seen Chris' wife Lynette on Victoria Road in Gladesville some weeks or months after she disappeared?
A. I'm sure he did, I'm sure he did. I'm sure he did."
Mrs Hutcheon was then asked the following question:
"Q. Mrs Hutcheon, when you learned of what that podcast was alleging, whenever that was, why did you not contact your brother Chris and tell him the things that your husband Ross had said about seeing Lynette after she had supposedly disappeared?
A. I just thought that it was going to be, it was just going to press and nothing was going to, you know, I just thought that common sense would prevail and it wasn't necessary. I have no … it wasn't … the fact that Ross saw her didn't, I didn't realise it was going to be that important because I just thought other people had seen her. It wasn't something that was just … I thought it was common sense, you know, I just didn't think anything of it, really. I didn't think it was important enough for me to ring and say … I don't know what was in Teacher's Pet, I don't know who wrote it, I don't know anything about it, I just don't know."
Even aside from Mrs Hutcheon's failure to tell the police about the sighting in 1999, the Crown maintains that her explanation for not telling her brother about the Gladesville sighting after the allegations in the podcast had become so public and notorious, is equally unconvincing. By that time, Mrs Hutcheon knew that Mr Dawson, a brother she held in high esteem, was being routinely accused of murdering his wife and yet she did not think her information was sufficiently important to tell him about it. The Crown submitted that this is inherently unbelievable.
Mrs Hutcheon told Detective Poole that she was "one hundred percent" sure that when the police came to see her and her husband at Cromer in 1999, he told them about his having sighted Lynette Dawson at Gladesville. Notwithstanding that apparent certainty, it remains clear that Mrs Hutcheon did not tell Mr Dawson of her husband's revelation when she phoned him that very same day. The discussion with her brother in context was unequivocally related to the fact that the police were investigating Lynette Dawson's disappearance, a matter to which Ross Hutcheon's claimed sighting was directly and critically relevant. Mrs Hutcheon told her brother that she had just had a visit from the police who were checking up on Lynette Dawson's disappearance and were interviewing all her relations "to make sure she is still missing". Despite this, Mrs Hutcheon does not mention the sighting to her brother at all. Mrs Hutcheon even relates telling the police that the last thing she heard of her sister-in-law's whereabouts was that she was on a hippy commune somewhere in Byron Bay.
Mr Dawson's response during final submissions to this tension was to maintain that the running sheet entry was intentionally constructed so as to omit any reference to anything that could possibly or potentially exculpate Mr Dawson. It was submitted that the police had a fixed view of Mr Dawson's culpability and that they consciously failed to include any reference to Mr Hutcheon's sighting as it did not fit with their preconceived assessment of his role in the disappearance of his wife.
One major difficulty with that analysis appears to be that, notwithstanding such an allegedly biased, ill-founded and entrenched view among the police that Mr Dawson killed his wife, it did not acquire any momentum in 1999 or indeed for some 19 years or so thereafter. The better view appears to me to be that the police had been given no evidence of Mr Hutcheon's sighting, and were coincidentally content to proceed upon the basis that there was insufficient evidence at the time to suggest that Mr Dawson had killed his wife in any event.
The Crown contends that the accounts given by Ross Hutcheon and Lynette Hutcheon are false. I am satisfied beyond reasonable doubt that Mr Hutcheon's account to the police in 2019 is false to the extent that he saw Lynette Dawson at Gladesville as he alleges and equally false to the extent that he told that to the police in the 1999 Cromer interview. By 2019, if not well before, Mr Hutcheon was aware that Mr Dawson was presenting himself to the world as a deserted husband with no knowledge of his wife's fate. It flies in the face of human experience that Mr Hutcheon would not have drawn what he had seen to the attention of the police investigating Lynette Dawson as a missing person when he must have known he had information that could assist, particularly so many years later when his professed concern for her presumed desire for privacy would have been expected to recede in the face of police concern for her whereabouts.
The timing of Mr Hutcheon's communication of the sighting to Peter Dawson is telling. Mr Dawson had by then been charged with murder. Mr Dawson had also been the subject of two coronial inquests, the second of which at least was significantly critical of his apparent role in Lynette Dawson's disappearance. Mr Hutcheon agreed in his evidence at the committal hearing on 13 February 2020 that he knew of the inquests. It is in my view almost impossible to believe that the information that Mr Hutcheon said he realised was important in 2019 would not have been seen by him to be just as important in 1999 or 2001 or 2003. Lynette Hutcheon said she at least knew about the first inquest. Mr Hutcheon said in 2019 that he was not sure what was going on, a statement about which I have considerable doubt, and arguably in conflict with his evidence at the committal, but in any event he conceded that "it's always, it seems to me as though it's always in the media".
In that context, I do not accept Mr Hutcheon's position to the effect that he knew his sister-in-law, a mother of two young children, had left the home and that he refrained from telling Mr Dawson that he had seen her because he thought she wanted to be left alone in peace and quiet and that he did not want, in his words, to "upset the boat". I appreciate and am mindful of the fact that Mr Hutcheon is dead, and so is unable to defend himself against the Crown contention that his version is a lie. However, the judicial process is not always gentle or polite. I am satisfied that Mr Hutcheon's version of sighting Lynette Dawson at Gladesville is a fabrication.
I have formed that view based upon the matters to which I have already referred and quite independently of any consideration of Mr Hutcheon's demeanour. However, the interview he gave to the police was video recorded and the video became an exhibit. It provides an opportunity to assess Mr Hutcheon as a witness and to compare the visual cues with the content of his answers. Nothing that I have been able to glean from my observations of Mr Hutcheon in the interview room causes me to doubt my conclusion that Mr Hutcheon's evidence was relevantly false.
I have regrettably formed the same view concerning Mrs Hutcheon's evidence that she heard her husband tell the police in 1999 about the Gladesville sighting. I appreciate that at the date she gave her evidence, Mr Hutcheon had only recently died. However, I am entirely unable to accept that Mrs Hutcheon would not have told her brother that her husband had just that very day informed the police that he had seen Lynette Dawson alive and well at Gladesville if, and in my view when, she was or must have been aware of its significance to the inquiring police at the time.
Having regard to the view I have formed about Mr Hutcheon's alleged sighting, it becomes unnecessary to consider the question of whether or not he could in the circumstances accurately have identified a woman across several lanes of traffic while travelling at 60 km/h. However, having viewed recent video footage tendered by the Crown taken from a vehicle travelling at that speed in both directions along Victoria Road at Gladesville, I have no difficulty with the proposition that Mr Hutcheon's alleged observations were physically or technically possible.
[12]
Elva McBay
Mrs McBay gave evidence before a magistrate at the committal hearing in 2020. She said that she saw Lynette Dawson at a parade in Macquarie Street, Sydney on the occasion of the royal visit in 1983 of Prince Charles and Lady Diana Spencer. She provided a statement to the police in 2018 in which she said that whilst she was waiting in the crowd, a woman six to eight people to her left ducked under the barricade and ran across the road. Mrs McBay told the Local Court that she was right on the barricade and that she saw the woman's face when she "turned to look quickly at the procession to see where it was" before running across the road. Mrs McBay turned to her husband and said, "I think that was Lynette Dawson".
Mrs McBay was a lifelong supporter of the Newtown Rugby League Club, regularly attended games and knew Mr Dawson and Lynette Dawson as a result. Apart from her sighting in Macquarie Street, Mrs McBay said that she remembered seeing Lynette Dawson at a birthday party for the Dawsons' elder daughter in 1981 at Bayview. Mrs McBay said that JC was at that time living with the Dawsons and that she told Lynette Dawson that "it was a ridiculous situation to have a school girl living at their house and to get rid of her". It is sufficient for present purposes to observe that Mrs McBay was well placed to identify Lynette Dawson having regard to the long and relatively close contact she had had with the Dawson and Simms families.
Mrs McBay's statement to the police dated 4 September 2018 contained the following:
"The lady ducked under the barricades and ran in front of the car and ran across to the other side of the road. I turned to my husband David and said to him, 'I think that was Lynette Dawson'. The lady was too quick. I could not confirm it was Lynette. I cannot remember what she was wearing. I must have seen the lady's face but cannot remember. The lady was too quick. My husband did not say anything. I don't think he was watching. At some stage I told Paul and Chris about seeing a lady that I thought was Lynette."
Mrs McBay was 99 years old when she gave her statement to the police in 2018. A video of her evidence given in 2020 at the committal hearing was tendered in these proceedings. Despite Mrs McBay's age, she was remarkably alert and lucid. Mrs McBay's evidence is, however, subject to the self-imposed qualification that what she saw happened too quickly for her to be able to confirm that the woman she saw on this occasion was Lynette Dawson. Mrs McBay did not speak to the woman. This evidence is extremely frail on its face and does not satisfy me that the woman seen by Mrs McBay was Lynette Dawson. It remains to be considered in the light of other circumstantial evidence casting doubt upon the contention that Lynette Dawson was still alive in 1983.
[13]
Peter Breese and Jill Breese
Between 1979 and December 1984, Peter Breese and his wife lived in Torumba Avenue, Bayview, not far from the Dawsons. He recalled attending their home at 2 Gilwinga Drive on one occasion to inspect a fireplace that he was told was not drawing properly. He inspected the fireplace and conversed with them about it. This meeting lasted about 25 minutes.
In 1984, Mr Breese was a patient at the Rockcastle Private Hospital where in June he underwent minor surgery. He said that he had not seen Lynette Dawson for about two and a half years at that stage, or since December 1981 approximately. Mr Breese's wife came to visit him and they had a conversation that is referred to in his evidence as follows:
"Q. Did the name Lynette Dawson come up in conversation between you and your wife on one of those visits that she made?
A. It certainly did.
Q. Who raised her name in conversation first of all, you or your wife?
A. My wife.
Q. What did she say to you?
A. She said, 'I've just seen Lynette Dawson'.
Q. Did you …
A. She may have stated it at the nurse at the station, which was just outside my door, the nurses' station, but she said she … you can hear from there, the door's there, the nurses' station is adjacent, well, just outside the door. She said: 'I've seen Lynette Dawson' and then I said: 'So did I the day before.'
Q. Mr Breese just to be precise could you tell the Court what it is that your wife said?
A. She said, 'I've seen Lynette Dawson'.
Q. After she said those words who spoke next, you or your wife?
A. I did.
Q. What did you say?
A. I said: 'Well I've seen her too.'
Q. The person that you were …
A. Just one second. I may have also added, 'I saw' … 'I've seen her too the night before'."
Mr Breese said that the woman he saw was about three metres away from him. She was wearing a nurse's uniform which could have been white or blue. No words were exchanged between them. Mr Breese saw her for five to ten seconds. He particularly noticed her glasses and the length of her hair. Mr Breese may have had his glasses on but he was not close enough to read any badges or nurse's insignia on her uniform. She stood in bright light by the nurse's station. He did not notice her teeth at that distance. Mr Breese did not become aware that Lynette Dawson was missing until 1986 or 1987. When asked whether he could have been mistaken about having seen Lynette Dawson, as opposed to someone who looked like her, Mr Breese said he believed it was Lynette Dawson. He also said that he was absolutely certain it was Lynette Dawson. However, he also accepted it was possible that he might have been mistaken.
Mr Breese described Lynette Dawson as follows:
"Well, she was an attractive lady. There was a notable feature about her face. Firstly, there's the glasses which are very obvious but it's hard to say but her front two teeth were slightly, you know, they were a perfect set of teeth but they were noticeable as opposed to, you know, they were slightly protruding I guess, so they came to a neat area, so she had a nice smile and she was an attractive woman."
Mr Breese was shown some photographs of Lynette Dawson. He responded as follows:
"Q. That was the third of the four pages. I am just going to go back to the first page of what is now exhibit AH in these proceedings (shown)?
A. There you go.
Q. When you say 'there you go' what were you meaning to convey by that phrase?
A. Well, just have a look at her two front teeth compared to the rest of them. I know it is only fractional but when you spoke to her closely she had a nice smile and they're the teeth, not that I could see them in the hospital but there you go." [Emphasis added]
Mrs Breese was too ill to give evidence in this trial. She gave evidence at the committal hearing on 12 February 2020. She earlier provided a statement dated 5 June 2019. Paragraph 12 of that statement is as follows:
"I remember visiting Peter in the hospital in the early evening after he had the operation. I was sitting in his hospital room. I was on a chair next to the bed. The angle that I was sitting at meant that I could see directly out the door and had a direct view of the nurse's station. The nurse's station was about 12 paces or so from where I was sitting. The nurse's desk was a long desk. It was a well lit area. I remember seeing a person standing behind the desk. I could see the top half from about the waist up of this person. When I saw the person I immediately thought it was Lyn Dawson. What made me think it was Lyn Dawson was her glasses, she wore these big glasses, and that her hair was similar. She just looked familiar. At the time I didn't think too much about it. This was the only time I saw her whilst I was at the hospital."
The Crown submitted that the Breeses' evidence suffers from what may be described as a form of confirmation bias: the fact that each of them appears independently to have seen the same thing operated to reinforce a belief in the accuracy of their separate observations. Mr Breese was also prepared to accept that he could have been mistaken. Mr Breese did not engage in any conversation with the woman he saw. The significant identifying characteristic that her teeth provided was not seen by him on the occasion in question.
In addition, Mr Breese agreed that he had "refreshed" his memory by looking at some Google images of Lynette Dawson in 2020. He said that he prepared himself because her identification was an important matter and he wanted to do his homework. Mr Breese said this:
"… I refreshed my memory by looking at those photos. They were exactly what I expected to see but there you go, I saw it.
…
Well I was certain that I saw Lynette Dawson but it's like 38 years ago so I just got myself into that period of time starting with the cash book, starting with the timeline. There's the pictures, there was Lyn, that was one memory and I don't think I can say more than that."
As noted above, Mr Breese agreed that neither he nor his wife was aware in 1984 that Lynette Dawson was missing. The fact of seeing her at the hospital at that time would not therefore have been as significant as if his sighting were framed by the knowledge that she had not been seen since January 1982.
Unlike the other alleged sightings, the evidence of the Breeses had to be considered by reference to contemporaneous evidence of five women who worked as nurses at the Rockcastle Private Hospital in 1984. None of them was able to say that they worked with a woman who looked like Lynette Dawson or who went by that name. Although their evidence did not exclude the possibility that Lynette Dawson could somehow have worked shifts at the hospital that did not coincide with their own work there, it significantly attenuated the strength of the Breeses' evidence about it.
The Breeses' evidence does not satisfy me that the woman they said they saw at the hospital was Lynette Dawson. Despite at least one expression of certainty, Mr Breese was prepared to concede that in fact nothing is certain. Taken at its highest, Mr Breese's evidence is to the effect that he thinks the woman he saw was Lynette Dawson. He had only met her on one occasion. He effectively had to resort to Google images in 2020 to refresh his memory. Far from refreshing his memory, Mr Breese has in my view either displaced it or contaminated it: the photos he looked at were self-evidently photos of Lynette Dawson and appear illegitimately to have provided him with a confirmation of a memory of her he did not otherwise have.
Mr Breese was an intelligent and cogent witness. However, before I could accept his evidence as a reasonable possibility I would also have to accept that Lynette Dawson, having abandoned her home and her previous life without a trace, would have chosen to work in a hospital as a nurse, despite no longer being registered as such, only a short distance from where she lived where the prospect of remaining under the radar was slim and the chance of being recognised was high. The evidence of Linda McCarthy and the other nurses at the hospital also serves to push Mr Breese's evidence beyond the margins of reliability, so that it can comfortably be disregarded.
The Breeses' evidence must also be assessed by reference to the general unreliability of identification evidence and to the other circumstantial material in this case that supports an inference that Lynette Dawson was dead by no later than 9 January 1982.
Before leaving my consideration of the Breeses' evidence, I should refer to exhibit BY which is a Crime Stoppers Report with a review date of 13 August 2003. That report is relevantly in the following terms:
"At 10:25 Wednesday August 13, 2003, a person contacted Crime Stoppers and stated:
'I knew LYNETTE DAWSON and her family. We had lost contact but when I saw her picture in the paper and found out she was missing it triggered a memory of when I last saw her. I was in the Rockcastle Hospital a couple of days after minor surgery and I looked over at the nurse's station and saw Lynette standing there. She had lost weight but it was her. She looked at me and had a fear stricken look on her face and then she bolted. A person who came to visit me who also knew Lyn also saw her there at the hospital. I didn't think anything of it at the time because I wasn't aware she was missing. The girlfriend moved in as the babysitter and her and the husband were seen skinny dipping in the backyard pool. Chris and his brother were very close, if anyone else turned up they might as well not be there. If Chris doesn't know what happened, Paul will. From my records I was in the hospital in either June or July, 1984. I have the name of the Doctor and he would have records of the dates. If the Police need to speak with me I'll leave my details.'
Caller's details on file at this office.
CHECKS conducted at this office indicate the report given by the informant matches the MP and LOI."
I drew the attention of the parties to that document during the course of the trial in the following terms:
"HIS HONOUR: Just out of interest, it will be apparent to all of you that in the judgment I published this morning on the admissibility of the five Rockcastle Hospital witnesses, I expressed the view, in the context of that application, that it seemed to me likely that the informant referred to in what is now exhibit BY was in fact Mr Breese, and I explained why I thought that.
Is that likely to be a controversial proposition in these proceedings?
CROWN PROSECUTOR: Not from here.
DAVID: I'll consider it your Honour."
That document was never referred to again by either party. That includes Ms David's submissions concerning the inadequacy of the police investigation. In the absence of some guidance from the parties, or of some obvious importance that the document appears to have concerning the Breeses' sighting, I do not propose to refer to it further, beyond the observation that it appears to evidence an attempt by Mr Breese once again to bring his information to the attention of the police, following the coroner's recommendation published in February that same year.
[14]
Mr Dawson's 22 August 2010 email
Although in a slightly different category, Mr Dawson sent an email to one of his daughters on 22 August 2010, effectively summarising the various sightings that had been reported over the years. That email was in the following relevant terms:
"Hi [XD]
Must tell you an amazing bit of news from old acquaintances, I heard this week. You will remember over the years, me telling you about various sightings of your Mum….such as:
*Seen across the road from Mona Vale PS by another parent a short while after she left;
*A woman telling your grandmother she saw your Mum on the northern beaches;
*On the Central Coast at a fruit stall on the side of the road by Sue Butlin (Sue is now deceased);
*Seen in the city by Elva McBay (who knew all of us very well - every week at the football for 6 years) at the procession of Prince Charles and Dianna in 1983.
BUT, most exciting…after chasing these past leads up to the Central Coast and so forth….happened this week. An old football acquaintance and his wife contacted me about 12 months ago to say that in an episode of the Antique Roadshow on TV (it is filmed in the UK and shown on Ch9 here in Aust), there was a segment that showed a woman in the background that they both believed looked remarkably like your Mum ! I rang the channel and was directed to various persons to try and get a copy. They informed me that it was filmed and belonged to SBS - who I then rang and was given similar run around…only to be told they didn't keep copies or have them for sale.
Any rate, this week, the couple made contact again after the show was repeated on Ch9 TV. The wife was quick enough to record the show and take a photo from the TV on still. Their son has unfortunately erased the recording BUT the good news is we have a copy of the photo and other relevant info.
The show was filmed in Padstow, near Cornwall in England, and the likeness to your Mum is uncanny and has given us a strong sense of hope that at last her whereabouts may be known. It was a segment of footage where a woman was trying to get a valuation on a 'silver pig' and 'Lyn' was in the background.
A NSW police detective told me years ago that your Mum was in New Zealand…and could easily have travelled beyond. Similarly, as you have found after a decade of world travel, how easy it would be to travel anywhere and remain uncontactable.
After at least 4 sightings of her over a period of time, I have not lost belief that she may one day be found. I always prayed that her life choices (like yours) could then be acknowledged and her safety and well-being confirmed.
Just as an aside, the woman who sent me the enclosed photo knew your Mum from football over a 6 year period and also showed photos years ago and again recently to a clairvoyant at the city markets, who on both occasions said she had no hesitation in saying she was still alive.
My girl, perhaps you would like to forward this e-mail to Aunty Pat and Uncle Greg who may have police contacts they could use to follow up the sighting in the UK.
You may also like to consider a visit to Padstow on your continuing travels around the world. We really can't say whether the woman in the photo is likely to be a resident of the area or a tourist…so, I guess it is a 'long-shot' that you could meet unless local police could be of assistance.
Thinking of you Love as always
Dad"
The Antiques Roadshow sighting has not achieved great significance in this trial. Exhibit BQ includes a statement from Sandra Casey, the woman who reported the sighting. Ms Casey recalled that this was in about July or August 2010. She took a photograph of the television programme and showed it to police. However, upon review, Ms Casey appears no longer to consider that it depicts Lynette Dawson. Paragraph 13 of her statement said this:
"13. As time has pasted [sic, passed], as well as reading and listening to media articles relating to the disappearance of [Lynette] Dawson, I doubt the photograph I took of a woman is Lyn Dawson."
The photograph appeared in a women's magazine in January 2011. It is included in exhibit BQ. Neither party submitted that the photograph was a true depiction of Lynette Dawson.
[15]
Narraweena, Beacon Hill, Terrigal
Mrs Simms' diary records that she put an advertisement in The Manly Daily for a week as a woman whose child attended the Warriewood Childcare Centre thought she had seen Lynette Dawson at the Narraweena shops. The suggestion is that this woman identified Lynette Dawson from a "snapshot" shown to her by "Barbara", presumably Barbara Cruise, and the woman identified Lynette Dawson. Ms Cruise was asked about this but said she had "no recollection of that whatsoever".
Lynette Hutcheon said that she was told directly by Audrey Danaher, her mother's sister, that she had seen Lynette Dawson on a Sunday morning at the Beacon Hill Markets on Warringah Road. Mrs Hutcheon said that she was told by her aunt that the woman she thought was Lynette Dawson was "selling handicraft things". No date is suggested for this alleged sighting.
Finally, Mrs Simms wrote in her diary that a friend told her that she thought she had seen Lynette Dawson at Terrigal.
[16]
Paul Cooper
Mr Cooper gave evidence that he saw Lynette Dawson sitting alone at a table in the Warner's Bay Hotel "sometime in 1982". He said that he was prompted to come forward with this information in 2018 after watching the television programme A Current Affair and seeing an image of the woman that he claimed he spoke to at the hotel some 36 years before. Mr Cooper was adamant that the woman he spoke to at the hotel was Lynette Dawson. She did not give him her name. Although they discussed her children, she did not give him their ages or names. She never told him where she was from. She told him that she had a sister who lived nearby. She asked him to help her find a room in a hotel.
Mr Cooper said that this woman explained to him that her husband had been unfaithful to her. He formed the impression that she was proposing to set him up on a charge of murder by feigning her disappearance. Mr Cooper's evidence does not suggest that the woman he spoke to said so in terms.
Mr Cooper was called in response to the Crown case by Mr Dawson. Mr Cooper identified himself to Mr Dawson's solicitor in an email dated 26 December 2018 headed "Chris Dawson's Wife" that read as follows:
"Hi Greg
My name is Paul Cooper I had drinks with a woman at tavern in Lake Macquarie Newcastle who I believe to be mr Dawson's wife. I have been very reluctant to get involved in this and I need to remain out of view. I was looking to pick up the lady and started drinking with her at a small table. After a few drinks and later in the night she told me she had left her husband and what she told me made it plain to see she was setting him up. I told her what I thought etc. The fact she was also leaving her kids was nothing compared to the hate she had for her husband. I wanted no part of her but still sat and tried to get her to so [sic, go] home. She said she was going to go to her sisters I think it was who lived close by we were at Warner's Bay. Anyway my phone number is … If I thought this man did this I would not waste my time. My father killed my mother and I hate pricks that beat there [sic] wife's [sic]. Call me if you want ..."
Mr Cooper could not be described as the feather in Fortune's cap. He recalled a tragic experience related to his mother's death at the hands of his father as he watched on aged nine years. He had developed a significant illicit drug problem from which he said he has now emerged. He spent considerable periods in gaol, including for offences of dishonesty. The Crown submitted that his heavy drug use may well have affected his memory.
I pause to observe that I am not particularly attracted to the general proposition that heavy illicit drug use necessarily leads to a diminution in a person's memory, even if it can occasionally be seen to be a convenient assumption. Nor was Mr Cooper demonstrably influenced by any fixed view he could be said to have about the outcome of these proceedings. It is not possible to say that Mr Cooper's version of what he described is a lie. It is, however, possible to make four comments about it, and to say why I do not accept it as establishing that the woman he spoke to was Lynette Dawson.
First, I find it very difficult to accept that a casual meeting with a stranger in 1982, in the absence of some contemporaneous factor of significance that would make the occasion independently remarkable, could be a reliable basis for the identification of the stranger nearly four decades on. It simply defies human experience that a person could be expected to retain sufficient details of a person's appearance to be able to assert with confidence, or in Mr Cooper's case with complete certainty, that his drinking companion and Lynette Dawson were one and the same person.
Secondly, there is inconsistent detail in Mr Cooper's version in that the woman to whom Mr Cooper spoke maintained that she had a sister who lived nearby. Lynette Dawson had no such sister. It is possible that the woman was in fact Lynette Dawson but lied to Mr Cooper about having a sister but that is a possibility that remains in the realm of speculation.
Thirdly, and in one sense fundamentally, Mr Cooper is not giving evidence that purports to identify someone he already knew as a fact to be Lynette Dawson. Unlike the other sightings, by people who knew Lynette Dawson and considered that they recognised her from their past acquaintance, Mr Cooper is asserting that a woman he had never met before, whose physical features he had no reason at that time in 1982 to remember, is the same woman by chance he later sees on a television program about a missing person. Mr Cooper's evidence is completely unreliable for this reason alone.
Finally, and in my view most significantly, there is other evidence in this case that I consider makes it otherwise clear that Mr Cooper's recollection must be incorrect because Lynette Dawson was already dead. As with other sighting evidence, I will separately deal with this in more detail below.
[17]
Conclusion
By reference to the individual incidents discussed above, I am satisfied beyond reasonable doubt that the phone call material and the sightings evidence do not establish that Lynette Dawson was alive in the circumstances to which they separately relate. By way of example, I am satisfied that none of the alleged sightings was a genuine sighting of Lynette Dawson. My conclusions in that respect have, in the first instance, been based on the incidents considered individually.
I am unable to say that the evidence relating to the bankcard transactions speaks with a similarly unambiguous voice. I am not by reference to that evidence, standing alone, able to express a view about what it says concerning the possibility that Lynette Dawson was alive after 8 January 1982. There is doubt about upon whose account the transactions were effected. As will later appear, however, the whole of the circumstantial evidence satisfies me that Lynette Dawson is dead, that she died on or about 8 January 1982 and that she did not voluntarily abandon her home. Those findings necessarily dispose of the suggestion that she was alive and making credit card purchases later that month or purchasing items at the Kulnurra Fruit Barn.
It follows that those findings necessarily and obviously mean that my reasons for specifically rejecting the evidence of phone calls and the alleged sightings retreat in significance. However, my ultimate findings take account of all the evidence considered as a whole.
[18]
Reliability of identification evidence
The evidence of alleged sightings led by the Crown is what has been described as "negative identification evidence". Negative identification evidence is evidence of a kind that may be unreliable and thus within s 165(1) of the Evidence Act 1995. That section provides relevantly as follows:
165 Unreliable evidence
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence--
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,
(b) identification evidence,
(c) …
(2) If there is a jury and a party so requests, the judge is to--
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6)…
In R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455 at [294]-[297], the following comments appear:
"[294] Junior counsel for the appellant, who argued this ground of appeal, sought to draw an analogy between identification evidence which tends to exculpate an accused, on the one hand, and evidence of a witness who would come within s 165(1)(d), that is a person who might reasonably be considered to be implicated in the offence charged against the accused, but who gives evidence exculpating the accused, on the other. In such a case it has been held that a warning as to the potential unreliability of such evidence ought not to be given or at least should be limited to such evidence as assists the Crown; R v Jamieson (1992) 60 A Crim R 68; R v Baker [2001] NSWCCA 151. But there is no true analogy. The potential unreliability of that kind of evidence disappears when the evidence is being used to exculpate an accused. There is no longer a risk that the witness is implicating the accused in the offence charged in order to obtain an advantage or to downplay his or her own part in the offence. Visual identification evidence remains potentially unreliable no matter what use is made of it.
[295] But, even if we were wrong in the view we take of the scope of s 165(1), s 165(5) makes it clear that the trial judge has a residual power to give a warning to a jury, or to inform them about some matter where the judge believes it is necessary to do so in the interests of justice. If the particular evidence under consideration does not fall within the scope of s 165(1), the trial judge has power to give a warning or provide the jury with information although there is no requirement to do so. In our view it was open to Kirby J to conclude that in fairness to the Crown the jury should be alerted to the general difficulties involved evidence of the nature of that given by Mr Dawson.
[296] Although we are of the opinion that identification evidence generally falls within the scope of s 165, it does not follow that a warning has to be given. Nor is it necessary for a judge to give a warning of any particular kind and, certainly, not one of indicating the special caution required by s 116. As Hunt CJ at CL pointed out in R v Clarke, not all identification evidence has the potential for unreliability that attaches to visual identification of a person. Identification of an inanimate object, such as a motor vehicle, may be less likely to be open to mistake and it may not be so persuasive. The trial judge is required to make a discretionary judgment in all the circumstances of the case whether to give a warning and what the content of the warning should be. In R v Stewart, above, it was held that s 165(3) applies to each of the matters set out in s 165(2), so that, for example, a trial judge may find that there is a good reason not to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it, as required by s 165(2)(c).
[297] In the case of evidence of a person other than the accused, and in circumstances where the evidence favours the accused, there would be good reason for the trial judge to temper the warning and information given to the jury in respect of that evidence. Clearly there would be no basis for the trial judge to warn the jury that mistaken identification has led to erroneous convictions. Generally speaking it would not be necessary for the trial judge to caution the jury in terms of s 165(2)(c) although we would not hold that such a caution could never be given. In our view, what Kirby J said to the jury about the evidence of Mr Dawson in the summing up was appropriate. Although we do not believe that it was correct for the trial judge to tell the jury, the day after Mr Dawson's evidence was given, that, in respect of identification evidence, 'caution must be exercised in dealing with such evidence when you come to address it', we do not believe that in the circumstances of this particular case that remark might have led to a miscarriage of justice in light of what his Honour said to the jury in the summing up many days later."
In Kanaan & Ors v R [2006] NSWCCA 109 at [133], the Court said this:
"[133] What is required in relation to negative identification evidence is, therefore, that the trial judge ensures by appropriate directions that the jury understands that:
(1) as the Crown must establish beyond reasonable doubt that it was the accused who committed the offence charged or who was involved in its commission (as the case may be), the negative identification evidence raises a doubt as to that fact,
(2) the Crown must eliminate such doubt in order to succeed in establishing that fact, and
(3) if there remains a reasonable possibility that the negative identification evidence is correct, the Crown case against the accused must fail."
The Crown submitted that I should give myself a warning or direction in equivalent terms that the alleged sightings were evidence in the nature of identification evidence and as such of a kind that may be unreliable. Mr Dawson opposed that course. I have already observed that if the Crown is unable successfully to negative any part of this evidence, with the result that Lynette Dawson must have been alive after 8 January 1982, the Crown case must fail. Obviously in a judge alone trial, I am required to give reasons why I either accept or reject the evidence of sightings of Lynette Dawson. With respect to the Breeses' evidence, I consider it to be wholly unreliable. In the case of the Butlins' evidence, I have concluded that it cannot establish that Lynette Dawson was seen at the fruit barn because the whole of the circumstantial evidence in the case leads me to be satisfied beyond reasonable doubt that she died on or about 8 January 1982. That conclusion would simultaneously dispose of all of the other sightings as well. However, for completeness, in the case of the Hutcheons' evidence, I have rejected it as a fabrication. In the case of Mrs McBay, I am satisfied beyond reasonable doubt that the woman seen by her was not Lynette Dawson. The Narraweena, Terrigal and Beacon Hill sightings are so vague and lacking in detail that I cannot make any realistically reliable assessment of them. They are, however, subject to my ultimate finding that Lynette Dawson died on or about 8 January 1982. In the case of Mr Cooper's evidence, I have rejected it for reasons that include my opinion that it is completely unreliable, leaving me satisfied beyond reasonable doubt that Lynette Dawson was not the woman at the Warner's Bay Hotel to whom he remembers speaking.
[19]
Is lynette dawson dead: proof of life inquiries
I have already rejected the contention, that relies upon the telephone calls, the bankcard activity and the sightings, that Lynette Dawson was, or may have been, alive at some identified time or times after 8 January 1982. However, rejection of the evidence suggesting that Lynette Dawson was alive on those occasions or in those circumstances does not foreclose the Crown's obligation to establish beyond reasonable doubt that she is dead now. It remains necessary for the Crown to satisfy me beyond reasonable doubt that Lynette Dawson is dead.
The Crown tendered evidence of extensive searches and inquiries conducted through all available avenues with a view to tracing the whereabouts of Lynette Dawson upon the assumption that she remains alive or that there is a record to demonstrate that she is dead. No trace of Lynette Joy Dawson born in September 1948 was found. I accept that she has never been seen again. I accept that she has not contacted relatives or friends by phone, by letter or by any electronic means such as email or facsimile. She has not travelled from Australia on an Australian passport. She is not registered with Medicare or the Australian Taxation Office. She does not have a driver licence in any Australian state or territory. She has not been located by reference to unidentified bodies or human remains. She is not registered as a nurse. She is not enrolled as an elector. She is not registered with Centrelink. This list is not exhaustive.
The disappearance of Lynette Dawson has generated extraordinary attention and publicity, both in Australia and overseas. With the exception of the alleged sightings, no one has come forward, anonymously or otherwise, to suggest that Lynette Dawson is alive or to offer confirmation that she is dead. The Crown has submitted that an overwhelming inference that she is dead can be drawn from the complete absence of any information from the public identifying her whereabouts, having regard to the extent to which the Teacher's Pet podcast and publicity about these proceedings have permeated the airwaves. That publicity includes coronial inquests into the presumed death of Lynette Dawson conducted in 2001 and 2003. Several television programmes, including on the Nine Network and the ABC, have also notoriously drawn attention to her disappearance. I am also aware by reason of some material referred to in affidavits filed by Mr Dawson's solicitor that there is a vast amount of material available on the Internet, which was the subject of prior applications by Mr Dawson in these proceedings.
Based upon this material, and in the circumstances of the case, I am satisfied beyond reasonable doubt that Lynette Dawson is dead.
[20]
JC
JC was not the first witness called in the Crown case. However, having regard to her involvement with Mr Dawson over the period from 1980 when she was in Year 11 at high school until about March 1990 when they separated, and to the Crown's contention that their relationship is central to the motive which the Crown maintains Mr Dawson had to murder his wife, it is important to include a consideration of her evidence. In doing so, however, I acknowledge that, while JC's evidence may operate as a convenient temporal framework within which to describe a largely, but by no means entirely, uncontroversial chronology of events, Mr Dawson challenges significant evidence given by JC as fabricated and untrue.
I should also observe that it is inevitable, if somewhat regrettable, that many of the matters referred to in the following summary of JC's evidence are necessarily referred to elsewhere in these reasons, in one context or another, and often more than once. However, I have chosen to provide the summary that follows in order to give, as near as possible, the evaluative flavour of her evidence in the sequence in which it was given.
JC was born on 11 February 1964. She turned 18 years of age in February 1982. She first gave a statement to the police concerning matters that arise in these proceedings on 17 May 1990.
JC has three sisters, Christine, BC and NC. She was the third child of her parents who divorced in 1977. JC's mother remarried in 1980.
When she was 14 years and 9 months old, JC started working part-time at Coles at Dee Why. She continued to work there during Years 9 and 10 at Cromer High School.
In Year 11, Mr Dawson was her physical education teacher. He told her that he saw her in the playground and wanted to get to know her better because he found her attractive. She believes that he deliberately took her class, although Mr Dawson disputes this.
In 1980, when she was in Year 11, she went to the Narrabeen Fitness Centre to help Mr Dawson at a school carnival. When she sat next to him at the finish line at the bottom of a tiered podium, Mr Dawson put his hand on her leg. Mr Dawson disputes this.
While still at school, the topic of her home life came up in conversation with Mr Dawson.
JC first went to the Time & Tide Hotel at Cromer with friends when she was 14. She used to go there on Friday nights in 1980. She often saw teachers there, occasionally including Mr Dawson and his brother Paul. There were times when they spoke to each other.
JC lived at Dee Why in 1980 and later moved to Collaroy Plateau with her mother, her sister NC and her stepfather.
JC did not see her father very often after the divorce because her mother did not encourage it. She had a good relationship with her father before then. Her stepfather was very controlling. Her mother and stepfather used to drink heavily and become aggressive with each other. JC spoke to Mr Dawson about her unsatisfactory home life and she might have confided in her friends about this as well. Mr Dawson was an adult and she felt she could trust him as her teacher.
JC knew that Mr Dawson was married and she had met Lynette Dawson in mid-1980. Mr Dawson raised the topic of her babysitting for the Dawsons on that occasion. JC started babysitting the Dawsons' daughters in mid-1980. She continued to work in that capacity until the following year. Mr Dawson would pick her up at her home on Saturdays and drop her off back home the next morning.
JC got her driver licence in 1982. Mr Dawson taught her to drive. She learnt to drive around the Dee Why area where she lived at the time.
JC had a school bag which Mr Dawson had bought her. She regularly found notes of love and affection from him in her bag whenever she had biology in 1980. When she left the marriage in 1990, Mr Dawson told her to destroy them. Mr Dawson disputes this. However, she kept the originals of the notes, but cannot now find them all. She showed these notes to police officers, lawyers and friends. Photocopies of some of these notes were tendered in these proceedings. They are referred to later in these reasons.
[Redacted]
[Redacted]
From that time in mid-1980, they had sex every Friday night thereafter. Mr Dawson would pick her up and drive to Manly. He would stop at a convenience store to buy her chocolate and they would have sex in his car at Manly Point. JC spent New Year's Eve with him there in 1980. In 1980, they had sex at his home, at New England University, at his brother Paul Dawson's house and at her sister's home. They also had sex at his office at school and at 2 Gilwinga Drive when Lynette Dawson was asleep or in the shower in the evening.
Mr Dawson asked JC to marry him "over and over and over again" until she agreed in 1981 while still at school. Mr Dawson disputes this.
JC was shown the front of a card, which she said Mr Dawson gave her for her 17th birthday. It said, "the most beautiful girl in the world on her 17th birthday". JC says that the meaning of the card is that he intended that they share every birthday together from that point on. On Valentine's Day 1981, she got a card from Mr Dawson saying, "the happiness you have given me will be with me forever". Her reaction to seeing that card was that she felt loved and heard, in contrast to what she felt at home.
JC said that the swimming pool at Gilwinga Drive had dirt around it when she first saw it in 1980. She said there was tiling or bricks around the edge of the pool. She recalled that the area beyond that became very muddy when it rained. JC only ever wore bikini bottoms, but not tops, when swimming in the pool. She said that was the fashion.
JC's home life was becoming increasingly violent. She found her stepfather's outbursts to be very upsetting and she tried to get away by staying in her bedroom with the door closed.
In late 1981, JC came to live at 2 Gilwinga Drive. She said that Mr Dawson used to call his wife "fatso" while JC was living with them. He also sang songs about his wife's unattractiveness. That is in dispute.
Mr Dawson made alcoholic drinks for his wife. She would have one or two, but not every night. After a drink, she would fall asleep, sometimes in the chair or excuse herself and go to bed. After Lynette Dawson fell asleep, Mr Dawson and JC would have sex in the house. This was never brought up in conversation.
In 1981, Mr Dawson had surgery on his nose. One afternoon after school, JC went to visit him in hospital. She sat on the bed and wiped the end of his nose. That night, JC was to sleep at 2 Gilwinga Drive. Lynette Dawson had a conversation with her when she got home from her job at Coles. Lynette Dawson said, "you've been taking liberties with my husband". JC understood that to mean that Lynette Dawson then knew that she was in a sexual relationship with Mr Dawson. JC moved out that night and into Paul Dawson's home. She never saw Lynette Dawson again. This was in November 1981.
JC stayed with Paul Dawson until 21 or 22 December 1981. On 22 December, or possibly 23 December 1981 according to other evidence, she went to Mr Dawson's house, and they packed his car with their belongings. She put her possessions in garbage bags. Mr Dawson told her that they were going away "to start a new life". They headed for Queensland but did not make it. She became sick on the way up and was very unhappy and missed her family. Exhibit R is a photograph of JC standing near Mr Dawson's car before they left.
JC could not say when Queensland had been agreed upon as their destination. There had been a discussion months earlier about living together and a $200 deposit was put down on a unit in North Manly for she and Mr Dawson to rent. She went there on one occasion with him and the woman who owned it. She was at that time still living with Paul Dawson. JC does not recall signing a lease. In the end, JC and Mr Dawson did not move in. JC said that this was because Mr Dawson's brother Peter told him that if he moved out of the Bayview property it would, in effect, jeopardise his rights in a divorce. JC said that Mr Dawson decided not to move as he did not want to lose the Bayview property.
JC attended the Cromer High School formal in October 1981. Mr Dawson went as her date.
In 1981, JC received a Christmas card from Mr Dawson which said, "Merry Christmas to someone I like to kiss under the mistletoe". The envelope said "J.M.D. xxx" which JC said meant Jxxx Mxxx Dawson.
Sometime in October or November 1981, JC went on a trip with Mr Dawson in his car. She was wearing her school uniform: the journey started from her school. They drove over the Harbour Bridge, to an unfamiliar suburb "out West" as she recalls. When the car came to a stop, JC could see a chain wire fence and a building with a short number of steps up to it. She did not see any signage. Mr Dawson told her to wait in the car while he went into the building. Mr Dawson was not gone for very long, perhaps 15 to 20 minutes. When he returned to the car he said, "I went inside to get a hitman to kill Lyn, but then I decided I couldn't do it because innocent people would be killed, would be hurt". JC has related this event to her daughter and friends over the years, and also the police, but not strangers. For example, JC said she was sure she told Gregory and Merilyn Simms, Lynette Dawson's brother and sister-in-law, when she met them in 1990.
When Mr Dawson and JC returned to Sydney on Christmas Day, they spent that night at Forest High School, sleeping in the gym. On Boxing Day, Mr Dawson dropped her at her mother's house because she told him she did not want to continue with the relationship. She was there for only an hour before Mr Dawson came back and picked her up, taking her to her sister's home at Neutral Bay where she stayed for a week. Mr Dawson came over on New Year's Eve, which they spent together on the headland at Manly "where it was just dirt and people would go there in cars". She returned to her sister's home on New Year's Day.
JC knew that her sisters were at that time on holiday at South West Rocks. There was a lot of pressure on her from Mr Dawson to stay with him but she did not want to. She contacted her sister's friend's mother who worked for an airline. She flew to Kempsey, from where she took a taxi to a caravan park where they were staying. There was a public phone box quite near her caravan and JC called Mr Dawson every day at his home. She did this because he asked her to do so. He said he missed her terribly and could not live without her.
JC did not talk with Mr Dawson about his own family life. However, while she was still at South West Rocks, he brought up the topic of his wife. According to JC, Mr Dawson said, "Lyn's gone. She's not coming back. Come back to Sydney and help me look after the children and be with me". That was said in a phone call that took place the day before Mr Dawson drove up to South West Rocks, arriving at dawn. He slept the night in his car and JC and her sister NC walked along the beach to meet him.
JC's Higher School Certificate results were sent to 2 Gilwinga Drive. She was at South West Rocks at the time.
JC and Mr Dawson drove back together with her sister NC in Mr Dawson's Corolla station wagon. She said they arrived back in Sydney on or about "10, 11 or 12 January" 1982. NC was dropped at her mother's house. The journey then culminated at 2 Gilwinga Drive where JC slept in Mr Dawson's bed every night. Inside the bedroom were lots of Lynette Dawson's clothes in a walk-in wardrobe, and her underwear was in drawers. There was also a basket with jewellery including two diamond rings and various items of costume jewellery and possibly Lynette Dawson's nursing badges. She did not notice any footwear.
In due course, all of Lynette Dawson's clothes were put into green garbage bags with a view to taking them to Lynette Dawson's mother, Helena Simms. The items in the basket remained at Gilwinga Drive. After some weeks, before the clothes were removed, JC went through Lynette's clothes and was allowed to keep what she wanted.
JC received a card from Mr Dawson on her 18th birthday on 11 February 1982. The card said, "To the most beautiful girl in the world on her 18th birthday".
The disappearance of Lynette Dawson did not come up in conversation between them unless JC was cranky about her own situation and asked when Lynette Dawson was coming back. JC would ask Mr Dawson, "where is Lyn? When is she coming back? Have you heard anything?" Mr Dawson would fob her off by saying his wife had "been seen in Perth" or she had "been seen in the Central Coast".
JC said she did not want to be there: she wanted to be an 18 year old with her friends. JC was unhappy with the way things were, describing herself as the substitute "slave", "sex slave", "housekeeper", "stepmother" and "babysitter".
JC started a secretarial course at the beginning of 1982 but desisted after three days.
JC did the shopping and bought groceries for the household, with cash given to her by Mr Dawson. She did not have a bankcard at first but Mr Dawson "gave" her one eventually.
JC and Mr Dawson were married at 2 Gilwinga Drive in 1984. They lived there until December that year. They then moved to Queensland and bought a property together. JC formed the intention to leave the marriage towards the end of 1989. She left Mr Dawson in March 1990.
On their wedding day on 15 January 1984, Mr Dawson grabbed her throat. She had no idea why. Mr Dawson disputes this.
ZD was born in January 1985. JC felt differently towards her daughter and her behaviour towards XD and YD changed thereafter. JC said she was consumed by love for her own child and blocked out Mr Dawson's girls. Mr Dawson was not happy with how she behaved. He asked why she could not be the mother of his children too.
JC was not allowed to discipline Mr Dawson's girls. If she attempted to do so, Mr Dawson would "discipline" her. The girls came to see she had no authority.
Their property in Queensland was bushland-like, and very remote. JC did not have any social network apart from Paul Dawson and Marilyn Dawson who had moved there as well. JC referred to the household as "the compound" because it was surrounded by a six foot chain-wire fence.
JC took her daughter to appointments. By the time she was two years old, this had ceased and ZD had no contact with children her age. JC therefore took her to the local playgroup so she could mix with other children. Mr Dawson told her not to go. The women at the playgroup told JC about their own relationships. JC was very unhappy at home and confronted Mr Dawson about why her relationship was different. He forbade her from going again and cut up her credit card.
On one occasion, JC went to a lingerie party and purchased a G-string using cash. She paraded it around at home for Mr Dawson who said: "You're only going to wear that for me". She defied him and he got very angry and said, "you're not going to wear that for anybody but me" and ripped the underwear off her.
In 1989, JC consulted a solicitor because the relationship had deteriorated so badly. Mr Dawson kept saying that everything was all his and she would not have anything if she left. She sought advice in order to find out for certain.
On one occasion, JC said to Mr Dawson, "You got rid of your first wife, you could easily get rid of me". His reaction was to stand completely still and say, "don't say things like that".
When she left, JC stayed with her mother at Collaroy Plateau and sought the advice from a woman at a women's shelter.
She was granted a sum of money by way of a property settlement before the matter was to be heard in court.
JC saw Lynette Dawson's brother Gregory Simms and his wife Merilyn Simms at parties when Lynette Dawson was still around. She later met with them for a couple of hours on the Central Coast, probably in 1990. JC told them what Mr Dawson had told her about Lynette Dawson, and about the violence she experienced. JC told them that she came back from South West Rocks and moved in but had not seen Lynette Dawson since. She told them that all Lynette Dawson's clothes and rings were there. She described this to them as "a bit odd".
JC said that she told Gregory and Merilyn Simms about the hitman incident. Following her meeting with them, JC went to the police.
JC was cross-examined at length on her evidence. She agreed that she felt comfortable talking to Mr Dawson as a school student, and about her problems at home. She approached him and disclosed the situation, although she said that Mr Dawson followed it up. She conceded that the relationship started appropriately. JC denied that she went out of her way to find time with Mr Dawson even though she said she invited him to a game of tennis. JC denied that she fell in love with Mr Dawson but said that he was in love with her.
JC said that Mr Dawson made her feel that she was targeted. For example, he would brush up against her in class.
JC maintained that the sexual relationship commenced in July or August 1980. She denied any suggestion to the contrary. She also denied the suggestion that Mr Dawson never told her to destroy the notes he had left her in her bag every day when she was at school. JC insisted that there was a power imbalance between them and denied that she treated Mr Dawson as a boyfriend.
JC described Lynette Dawson as "like a mother" to her. She was very kind and caring and made her feel very welcome. Lynette Dawson did most of the cooking and performed traditional household roles. JC denied that she made up the reference to "fatso".
JC described Mr Dawson as a very explosive person: she did everything she could to avoid that by complying with his requests. JC said that there was actual violence as well as the threat of violence. She had earlier described an incident on her wedding day when Mr Dawson put his hands around her throat as if to choke her. She was cross-examined about why she had not until now referred to this incident. JC said she did not speak out about the choking incident until giving evidence as she likely blocked it out because it was meant to be a happy day.
JC confirmed that in response to Lynette Dawson confronting her, she went to stay with Paul Dawson. She agreed that at that stage she wanted her relationship with Mr Dawson to continue. It was around that time that she started looking for alternative accommodation with him. She denied that Mr Dawson said to her that it would be an embarrassing or uncomfortable situation living in the Manly area because they were well known there.
JC says that "it was a desperate time" by the point they decided to travel to Queensland to start a new life, even if it did not fit with Mr Dawson's hesitancy about leaving Bayview in order to rent in Manly.
JC denied that Mr Dawson made it clear to her that he did not know when or if his wife was coming back. She acknowledged that she did not say in her first statement in 1990 that Mr Dawson said, "Lyn's gone. She's not coming back". JC said that she moved into the Bayview house straight after their return from South West Rocks, and denied the suggestion that she lived anywhere in between. She also denied that at first she lived in the study area of the home for a number of weeks or a month. JC also denied that Mr Dawson made it clear to her that if Lynette Dawson returned, she would have to leave. JC said that she felt obligated to help Mr Dawson as he had picked her up from South West Rocks. At the time, she wondered where Lynette Dawson was and wanted her to return.
JC emphatically denied that she has created an imaginary scenario of what occurred.
Mr Dawson made it impossible for her to go to TAFE and she only went for three days. She said it was Mr Dawson's unspoken malice that arose from the "inconvenience" she caused him by attending TAFE that made her decide to stop. She denied that Mr Dawson encouraged her to obtain qualifications.
JC denied that she was agitating to dispose of Lynette Dawson's clothes later on in the year. She insisted that Mr Dawson got rid of them early on. She denied that she cut Lynette Dawson out of family photos.
JC denied making the "sex slave" allegation as a publicity stunt in order to obtain money.
JC maintained that she arrived back from South West Rocks on or about 10, 11 or 12 January 1982. She insisted this was correct even though in paragraph 9 of her 1999 statement she claimed Mr Dawson drove there on 15 January and that they returned the following day. JC explained that that was an error which has been corrected in subsequent statements.
JC agreed that after coming back from South West Rocks, she had a discussion with Barbara Kilpatrick in mid-January 1982. She disagreed that a topic of conversation at that time was whether she should move in to Gilwinga Drive because she had not been brought back there. She disagreed that Ms Kilpatrick was concerned about her or that they discussed whether she and Mr Dawson should stay together. Ms Kilpatrick wanted Mr Dawson to let her go. JC denied that she had not yet moved into the house at that time. She said she believed Mr Dawson when he said he cared for her.
JC denied that the cards given to her by Mr Dawson were only received in 1981: they commenced in 1980. She conceded that she wrote the date on the cards later and not at the time they were given to her, although she did not know how much later.
JC denied that a particular card was given to her after she and Mr Dawson were married or that the reference in it to "our first real Christmas" was a reference to their first Christmas after they were married.
JC agreed that she never saw any physical violence between Mr Dawson and Lynette Dawson and that she never saw any bruises on Lynette Dawson's body. JC denied that she fabricated any allegations of violence in the course of, or because of, Family Court proceedings.
JC says that the letters received from Mr Dawson at or about the time of their separation and the Family Court proceedings were "absolute garbage". She denied that Mr Dawson was loving and affectionate to her throughout the relationship.
[21]
Assessment
Although JC gave evidence and was cross-examined over a wide range of subjects and areas of apparent interest, not all of what she has had to say bears relevantly upon the critical issues in this case. However, I consider that it is important at this stage of my reasons to indicate what my impression of JC is and to specify some things which she has said that I am able to accept.
I am satisfied that JC was experiencing difficulties in her family situation at least from as early as 1980 and that she confided in Mr Dawson at that time in his capacity as a teacher at the school who she felt she could trust. I am satisfied that Mr Dawson was already, or at least very soon thereafter became, attracted to her and that this attraction in due course developed into an infatuation. Mr Dawson encouraged the development of a relationship between them, and sent cards or notes to JC on a regular basis from some time in 1980 as she has indicated.
I am satisfied, and there appears to be no issue, that JC became the Dawsons' babysitter in or about mid-1980 and that she would stay overnight on Saturdays as part of the paid arrangement that developed. I am satisfied that she and Mr Dawson began a sexual relationship on the occasion of the visit to Mr Dawson's parents' home and that regular sexual contact between them continued from then on as she described.
It is not apparently in contest that JC and Mr Dawson left for Queensland together on or about 22 or 23 December 1981, by which time Lynette Dawson had become aware of the sexual relationship between JC and her husband. I am satisfied that JC last saw Lynette Dawson on the occasion that Lynette Dawson challenged her at 2 Gilwinga Drive with the allegation that she was "taking liberties" with her husband. JC and Mr Dawson left for Queensland shortly after this and were away for only two days at most. On Boxing Day, JC moved in to live with her sister. Mr Dawson likely resumed cohabiting with Lynette Dawson in the family home on the same day. Mr Dawson spent New Year's Eve with JC.
I am satisfied that JC flew to South West Rocks on either New Year's Day 1982 or 2 January 1982 to join her friends and sisters at a caravan park. I accept that Mr Dawson told her before she left to call him every day and that JC did so. Sometime later in January 1982, Mr Dawson drove to South West Rocks and collected JC, and brought her back to Sydney. I am satisfied that Mr Dawson said to JC "Lyn's gone. She's not coming back. Come back to Sydney and help me look after the children and be with me" and that this was said in a phone conversation with JC on or about the day before Mr Dawson travelled to South West Rocks to collect her. I have elsewhere concluded that this happened on 11 January 1982. I accept her evidence that she moved into the Dawson home at 2 Gilwinga Drive, by which time Lynette Dawson was no longer there.
A sustained attack upon JC's credit was mounted on Mr Dawson's behalf. Part of that attack was based upon the contention that significant aspects of her evidence were generated in the context of an acrimonious Family Court dispute with Mr Dawson and that allegations made by JC at that time were designed tactically to enhance her position in that litigation. One such allegation, not utilised in the litigation per se, but communicated to the police at around the same time in 1990, was that Mr Dawson had spoken to her years before about a hitman. As will later appear, I am not able to be satisfied that any such conversation occurred.
I am, however, satisfied that JC's evidence is otherwise truthful and reliable. I was struck by her evidence concerning the development of her relationship with Mr Dawson while she was still at Cromer High School. I was left with the impression that JC felt that she had been, and that she had in fact been, swept up in circumstances over which she had only limited control. She was confused and conflicted. On the one hand, Mr Dawson offered her friendship, stability and guidance as a well-respected and charismatic male figure of a kind that had been lacking in her life. On the other hand, JC appears to have found herself in an emotional bind with a man whose enthusiasm for their relationship was not matched by hers. I found that JC's insistence during her evidence that she was at the time only a child to be an evocative description of her predicament with wider metaphorical implications. I refer to these matters in order to indicate that I do not consider that JC's evidence has been corrupted by the influence of her separation and divorce.
[22]
hypothesis consistent with innocence
Not only must the Crown prove beyond reasonable doubt that Lynette Dawson is dead, but it must also prove to the same standard that she was voluntarily and intentionally killed by Mr Dawson. My consideration of whether the evidence establishes beyond reasonable doubt that Mr Dawson did so appears later in these reasons. However, satisfaction beyond reasonable doubt that Mr Dawson did so requires the Crown to exclude the existence of any reasonable possibility that he did not do so. Clearly enough, the existence of some reasonable alternative hypothesis concerning what happened to Lynette Dawson that is inconsistent with the Crown's contention that she was killed by Mr Dawson would mean that the Crown case would fail: satisfaction beyond reasonable doubt cannot admit of the existence of a reasonable possibility that raises such a doubt.
As I have attempted to emphasise, and as the parties uncontroversially accept, the Crown is not able, by direct evidence, to establish that Mr Dawson killed Lynette Dawson. In this case, having regard to the way in which the proceedings have been conducted, the Crown is confronted with the burden of excluding as a reasonable possibility that Lynette Dawson walked away from her life or, as Ms David put it in her final submissions, that she simply abandoned the home:
"DAVID: Just coming back to your Honour's question yesterday, whether your Honour should entertain a reasonable possibility that Lynette Dawson ran off with a religious organisation or was still with one, the final question, the defence position is that there is an available hypothesis that she has abandoned the home. Where she may have gone after that, the accused is not in a position to clearly provide your Honour with any detail."
This matter was inevitably considered further in the course of Ms David's final submissions:
"HIS HONOUR: The existence of a reasonable hypothesis consistent with innocence is no more and no less than a restatement, if you like, of the obligation of the Crown to prove its case beyond reasonable doubt. In other words, the existence of an hypothesis reasonably available on the evidence consistent with innocence means that the burden has not been discharged to the criminal standard.
This is a good opportunity for you, I suspect, in response to the Crown's case that it has discharged the criminal onus to tell me what you perceive to be the possibilities consistent with innocence that the Crown has failed to exclude. As I say, you don't bear an onus of that, but in terms of persuasion and advocacy and you're on your feet in your final submissions, what reasonable hypothesis consistent with innocence or, if more than one, hypotheses, do you say that are still on the table so that the Crown fails?
DAVID: We say, your Honour, that the possibility that she left and abandoned the home of her own accord and, although we are clearly not in a position to say what or precisely where she is, that we rely on the fact of the communication, the ongoing communication between Christopher Dawson and Lynette Dawson for until the 15th or 16th, there's two days, in the use of the bankcards and the multiple sightings all support what we say is the reasonable hypotheses that she was alive after 8 or 9 January 1982, and that the Crown has not excluded those factors in relation to the phone calls. The defence have submitted and say that there is no reason to disregard what Christopher Dawson has said because what he has said in relation to those phone calls, so far as can be verified, has been verified. It is impossible for him now today to well, the significant forensic disadvantage is that where that call came from is not ever to be known, but the defence say that there is no reason and the Crown has not in this Court adduced evidence that would exclude that as a reasonably possible explanation or account. In relation to the sightings, the defence say, for the reason that's submitted last week, that there are multiple sightings from multiple people who knew very well Lynette Dawson and were capable of recognising her. Unfortunately there are a number of sightings that were not followed up, but it all creates a picture of Lynette Dawson being alive which the defence say the Crown has not excluded in this case."
It is timely to recall that Mr Dawson is not required by evidence or otherwise to prove or establish anything in this trial. It is for the Crown to prove its case and to the criminal standard. However, as a matter of practical reality, there is no suggestion arising from submissions or from the evidence in the case that any reasonable possibility consistent with Mr Dawson's innocence might exist other than that Lynette Dawson left voluntarily and without any intervention by him. This is made perfectly clear in the comprehensive and logical opening statement made by Ms David on behalf of Mr Dawson on day three of this trial. Some reference has been made to the possibility that she may have committed suicide, but the reasonableness of that proposition must be limited for obvious reasons and it has not been embraced as a genuine possibility. The suggestion that Lynette Dawson may have been persuaded to join a religious community has been mentioned as well, but that is in truth no more than a variation of the general theme that she left of her own accord: her possible life with some body of people, religious or otherwise, is only additionally significant to the extent that it informs the likelihood that someone in the wider community would by now have come forward.
The Crown case is that any hypothesis that Lynette Dawson voluntarily walked away from her previous life, or that she might have done so, is based upon no more than conjecture or speculation. The Crown contends that there is in the complicated circumstances of this case, an inherent unlikelihood of Lynette Dawson voluntarily leaving her home and family and that that is a compelling circumstance pointing to Mr Dawson's guilt. That general unlikelihood can be seen as a combination or accumulation of a series of unlikely matters that the Crown says demonstrate that there is no reasonable possibility that Lynette Dawson abandoned her home.
Mr Dawson's response emphasises the evidence supporting the existence of a reasonable hypothesis that Lynette Dawson did in fact abandon her home. This is referred to in more detail later in these reasons.
It is important in this context to observe that no general, gender-based assumptions should be made about Lynette Dawson. Simply because Lynette Dawson was a mother does not thereby produce some unambiguously logical conclusion that weighs in favour of the argument that she did not leave voluntarily. Women and mothers are already burdened with more than enough vicarious emotional baggage without further adding to the weight of unfair expectations that are imposed upon them. Men seem not to be regularly stereotyped for making arguably irrational or selfish decisions, whereas women are somehow expected to abide by a higher standard. In forming any opinion or making any finding based upon the fact that Lynette Dawson was a mother, it is advisable to bear in mind that she is entitled to be assessed as Lynette Dawson and not as a member of a class with immutable characteristics. If the contention that Lynette Dawson did not abandon her home is to be inferentially supported by reference to her motherhood or her relationship to her children, as the Crown contends, it must be based upon what is known about Lynette Dawson in particular and not upon what is thought to be known about women or mothers in general.
[23]
Circumstantial case direction
It is timely that the following matters be noted.
The Crown case against Mr Dawson relies on circumstantial evidence. Because of this, to the extent that I am able to be satisfied of Mr Dawson's guilt beyond reasonable doubt by relying on such evidence, I cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than his guilt. To enable me to be satisfied beyond reasonable doubt of his guilt on the charge of murder that is unsupported by direct evidence, it is necessary that the Crown persuade me beyond reasonable doubt not only that Mr Dawson's guilt is a rational inference, but that it is the only rational inference that the circumstances would enable me to draw. This means that the Crown must exclude all reasonable hypotheses consistent with Mr Dawson's innocence.
For an hypothesis to be a reasonable one, and for an inference to be a rational one, they must each rest upon something more than mere conjecture or supposition. A bare possibility of innocence does not prevent a conclusion that Mr Dawson is guilty, so long as the inference of guilt is the only inference open to a reasonable person upon a consideration of all of the facts in evidence.
In deciding whether there is an hypothesis reasonably open on the evidence that is consistent with Mr Dawson's innocence, all of the circumstances established by the evidence are to be considered and weighed. The evidence is not to be looked at in a piecemeal fashion, but is to be considered as a whole.
Moreover, in a circumstantial case, each fact can inform an understanding of the significance of other facts. Therefore, it is the understanding of the combined significance of all of the facts which informs the issue of whether the Crown has proved Mr Dawson's guilt beyond reasonable doubt in respect of the charge that he faces.
[24]
Crown case: Lynette Dawson did not abandon her home
The Crown must negative the existence of the reasonable possibility that Lynette Dawson voluntarily abandoned her home, there being no other suggested reasonable possibility.
The first matter to which the Crown directs attention is why, if Lynette Dawson wanted to walk away from her marriage, her children and her family, with the aim of starting a new life without them, would she have stayed in much the same area on the Northern Beaches or taken employment there. The most striking example of that apparent conundrum arises in the context of Mr Breese's observations at the Rockcastle Private Hospital. That hospital was situated at Freshwater. That suburb is not immediately adjacent to Bayview, but is still in an area regarded as part of the Northern Beaches. Bearing in mind the evidence suggesting that Lynette Dawson may have been located as far away as Padstow in England, somewhere in New Zealand, or Byron Bay or the Blue Mountains, Freshwater is extremely close to where Lynette Dawson lived and made her home. If the assumption is that she has resolutely and voluntarily made no contact with her family, it is extremely difficult to accept that, consistently with that decision, she would choose to work locally. The corollary of that proposition would appear also to be that it seems extraordinary that Lynette Dawson was not seen on multiple occasions by other people from the area who knew her. There is no suggestion that any such chance meetings ever occurred.
There is next the improbability that if Lynette Dawson made a decision to abandon her home, she would have done so effectively with nothing more than the clothes she stood up in. If on the one hand her decision to leave was long planned and a not improbable reaction to her deteriorating marriage and what she may have seen as her inevitable replacement by JC as Mr Dawson's preferred sexual partner, she had had quite some time to organise her departure more thoroughly and systematically. It is not, for example, as if there is strong evidence to suggest that she would have been required to do so in secret, against the unwanted possibility that Mr Dawson may have persuaded her to stay. Choosing to be dropped at the Mona Vale bus stop is not inconsistent with a decision to start a new life but does not strike me as high on a list of probable alternatives.
On the other hand, if the decision was unplanned and spontaneous, it was an exceedingly uncharacteristic thing for a woman such as Lynette Dawson to have done. The evidence suggests that she was fond of clothes and that her wardrobe and drawers were well stocked. It is certainly possible that if Lynette Dawson underwent some form of emotional breakdown, of which there is no strong evidence, so as adversely to have affected her ability to reason in an ordered fashion, she may not have acted in her best interests in deciding never to return. The question of precisely what state of mind Lynette Dawson was, or may have been, in late on Friday night or early on Saturday morning is referred to later in these reasons.
Although it may not seem to be overwhelmingly significant, Lynette Dawson had for her entire married life been dependent upon Mr Dawson to drive her where she needed to go. The theory that she walked out of her life with no easy means of transport at her disposal is much harder to accept than if, for example, she had loaded up a second family car with clothes and possessions and driven herself away.
There is scant evidence that Lynette Dawson had money of her own, either in cash or in an account, to which she had access to fund her new life. There is some evidence to suggest that she may have had as much as $500 in cash. Even allowing for the fact that this was 1982, that amount of money would not go far if Lynette Dawson had to arrange accommodation, transport, meals and the purchase of a new wardrobe.
The evidence also powerfully suggests that Lynette Dawson had a strong maternal bond with her daughters. In the words of Barbara Cruise, "Lyn idolised her husband and her children". She had struggled to conceive and did so only after obstetric surgery. She had given consideration to adoption before that. With the exception of Peter Dawson, who was prepared only to describe her as a "competent" mother, Lynette Dawson was the subject of otherwise unanimous commendation for her parenting skills and the love of her daughters. Paul Dawson described her as "a good mother". She was said by her work colleagues to be particularly excited by the prospect of her elder daughter starting school. She had commissioned portraits of the girls late in 1981. The artist, Kristin Hardiman, offered them to Mr Dawson in mid- January 1982. She had made plans for the celebration of her mother's upcoming birthday, including the distribution of handwritten directions for the invited guests. These are matters that do not sit comfortably or consistently with a voluntary decision to abandon her family without notice.
Moreover, following counselling on the afternoon of Friday 8 January 1982, she was in an ebullient mood with hopes of resurrecting her relationship with Mr Dawson. Lynette Dawson's colleagues at the child minding centre observed this. Lynette Dawson's mother also appears to have thought that her daughter was in a good mood on the Friday night when she wrote to her elder daughter Patricia Jenkins on 21 January 1982, saying this:
"Lyn did say on the Friday night to let you + Greg + M know things were good now, she + Chris were going for a 5 day laze on the beaches, seeing the children were going away + then she did this about turn after a hassling night with [YD]."
Phillip Day gave evidence to the same effect at the second coronial inquest on 27 February 2003 as follows:
"Q. The conversation with Lyn on the Friday where it is discussed the marriage counselling in respect of the marriage problems, was that something that she volunteered to you or did you ask her about that?
A. No she volunteered. When she answered the phone I wasn't trying to be at all intrusive. I don't like phones or those sort of conversations. She was also a very good friend of mine. I'd known her as long as Chris and her family pretty well so I was just really confirming with meeting Chris, who knew about that, and didn't really want to tie her down to details on the phone. I did expect that I would speak to her in the future. My regret was in hindsight that I didn't go over and speak to her straight away.
Q. When you say you regret not speaking to her straight away was there something about - was there some urgency about the conversation?
A. No, she was very calm and relaxed, she was warm and friendly. Lyn's a very intelligent woman. No, that is a hindsight regret of all those years later.
Q. She didn't sound distressed or anything like that?
A. No, she was very controlled on the phone and was speaking quite normally. As I said, we'd known each other since 1964 so yes she didn't find the phone call intrusive and she understood what was happening and yeah, I just wished I'd asked her more questions.
Q. Did she sound confident that the marriage would be repaired?
A. She did."
Mr Dawson himself even confirmed this in his interview with the police in 1991:
"Q54. All right. On the ah, day before ah, Lyn went missing, you stated that you went to marriage guidance counselling. Is that correct?
A. Oh, It was prior to Lyn leaving, I'm not sure if it was the day before or two days before but prior to that day because when we walked out of marriage, 'cause I know I was on ...... We went along to marriage guidance at ah, Manly. I remember walking out of there for the first time in six months and holding hands and thinking that our marriage was going to be sort of, our problems were going to be resolved and things were going to work out.
Q55. Ah hmm.
A. That's, that's why I was sort of, as I said I was distressed when Lyn left on the Saturday because I thought we were starting to get it together but, but the morning of, sorry the day prior to Lyn leaving there was an incident at home where she had thrown our little, our second daughter, our daughter, our second daughter onto the bed and sort of had ah, a bit of an emotional breakdown at the time. And um, so then when she sort of said she wanted to go shopping, she wanted to buy, some understanding in light of the previous sort of um, anxiety. But then I thought things were going to work out after we did that marriage guidance, I thought it was fairly positive, the thing that came out of it. It seemed ok for a while then she started being negative in the night time saying, 'The fellow's seeing you as the good guy and blaming it all on me 'cause my family background isn't as happy as yours.' And she was starting to question the um, the outcome of our marriage guidance."
I observe that it will be apparent that Mr Dawson appears to walk back from maintaining support for the existence of this happy mood by referring to the incident with their daughter. This is also referred to in Mrs Simms' letter to Patricia Jenkins, although I am satisfied beyond reasonable doubt that Mr Dawson is the source of Mrs Simms' information about that: Mrs Simms does not in terms suggest to Patricia Jenkins that Lynette Dawson mentioned any incident with YD. Lynette Dawson's curious change of mood is referred to elsewhere in these reasons in the context of assessing the possibility that what Mr Dawson said about it is a lie and when generally considering the use that can be made of Mr Dawson's 1991 interview with the police.
Mr Dawson said elsewhere in that interview that he remembered that he and Lynette Dawson were going to have a honeymoon party, what he described as "a celebration after coming from marriage guidance". He said that he and Lynette Dawson walked out of there, meaning counselling, holding hands for the first time in six months. He said, "it was supposed to be a sexy celebration". Without more, that description of the relationship between Mr Dawson and Lynette Dawson on the evening of Friday 8 January 1982, is fairly inconsistent with an alleged decision by her to leave the marriage without notice.
Sue Strath also spoke of Lynette Dawson's feelings about the state of her marriage on Thursday 7 January 1982:
"Q. Just sticking with the Thursday for the moment, did she say anything else on that day about her marriage?
A. She said, 'Everything looks like it's going to be fine because we're going to see a marriage psychologist the next day, on the Friday'. So she was very hopeful for the future."
Ms Strath described what she saw the following day when Mr Dawson and Lynette Dawson returned in the afternoon from marriage counselling:
"Q. When she returned was she alone?
A. She was with Chris.
Q. Can you describe for us what you saw when she returned?
A. She came back down the ramp into the childcare centre and she was holding hands with Chris and he left her probably at the glass doors but I remember them coming down into the centre.
…
Q. After Mrs Dawson returned from the psychologist visit did you speak with her that afternoon?
A. I just said, 'How did you go?' She said, 'Oh, it was really good, really positive, and I'm hoping that we can move forward and work together'. You know, she was very happy. Very happy."
Lynette Dawson also enjoyed her work at the childcare centre and was on good terms with her co-workers. She gave no notice or explanation to them of any decision to leave and appears not to have told them that her marriage, although difficult, was beyond redemption. A decision by her permanently to leave her employment unannounced is inconsistent with her portrayal as a reliable employee.
Moreover, Lynette Dawson, according to her sister-in-law Lynette Hutcheon, was in effect no shrinking violet, in the sense of a woman who is likely to have accepted second best or without a fight to have given up what she had achieved, in terms of her marriage, her home, her family and possibly also her career. Mrs Hutcheon said this:
"Q. How would you describe, as best you can, the Lynette that you knew in those years or in that time that she was staying with you?
A. She was very confident, decisive. A very, very, very confident young woman. Knew what she wanted and, yeah, had no problem in working out how to get it."
Lynette Dawson was an intelligent woman. There has been no suggestion to the contrary. There is no evidence, with the exception of the incident where she apparently reacted badly to some interaction with her daughter on the Friday night before her disappearance, to suggest that Lynette Dawson suffered at any time from a psychiatric or psychological condition that rendered her susceptible to hysterical outbursts or spontaneously irrational decisions. The description of her by Mrs Hutcheon as confident and decisive is not diluted in any way by any evidence in this trial suggesting that Lynette Dawson was prone to emotional lability or unpredictable behaviour. The Crown contention is that a decision to leave the family home, with all that that entails, would be so out of character for Lynette Dawson as to be an hypothesis supported nowhere than in the realm of speculation.
I pause to observe that all of these matters upon which the Crown relies to negative the existence of a reasonable possibility that Lynette Dawson abandoned her home, are also circumstances promoted as material that supports a rejection of the telephone calls, bankcard activity and sightings which the Crown must satisfy me should be discarded as credible or reliable evidence proving that Lynette Dawson was alive after 8 January 1982.
Some of the foregoing general references to the matters upon which the Crown relies require closer examination.
[25]
Lynette Dawson's daughters
The Crown contends that it is inherently unlikely that Lynette Dawson would have left her children, deciding never to contact them again, and that that is a compelling circumstance pointing to Mr Dawson's guilt.
Patricia Jenkins was asked about the difficulties that her sister Lynette Dawson experienced in conceiving children:
"Q. I turn then to the issue of your nieces, [XD] and [YD]. Did the topic of Lynette conceiving children come up in conversation with you at any stage?
A. I can't specifically say when that would have happened, but because I had my children, three of my children before Lynette conceived, and I'd go down there, I knew she was having trouble then, conceiving, because she was so affectionate to my children, she just wanted children of her own and I knew she had gone through numerous procedures and tests to see what the problem was.
Q. How do you know that?
A. Well she told me, I was aware that she was going through those procedures. She tried growing mint outside her window or having her bed a certain way. She was, I feel, quite desperate to start a family."
Ms Jenkins also said this:
"Q. What did she say about her children to you, is there anything in particular you remember about anything she ever said to you about her children?
A. Oh just how much she loved them, I mean that was evident the way she was with them. She absolutely adored them. She'd waited seven years to have them and I think people around her were having their children and she had hadn't been able to. When she had them she had them both by caesareans with a spinal block so that she could try and appreciate what it was like to have them naturally and so she could hold them as soon as they were born. At that stage not everyone had spinal blocks, it was not as common as it is now, but she wanted to have them that way because she couldn't have them normally."
Lynette Dawson ultimately became pregnant in 1976 following fallopian tube surgery performed by Dr Murray.
Barbara Cruise said Lynette Dawson's children "were her world". She said, "she loved her children very much and she waited a long time to have them". Sue Strath also observed Lynette Dawson's relationship with her daughters:
"Q. How do you know she had those two girls?
A. She used to talk about them all the time. I saw lots of photos of them. I'd see them come in quite often with Chris when he was coming to pick her up, and she was very proud of her girls. She loved them dearly.
Q. You said she used to talk about them all the time?
A. We all talked about our children.
Q. What sort of things would she talk about?
A. Oh, just what they were doing. She was very excited because the eldest one, she was getting ready for her to go to school, and that was a very exciting moment in Lynette's life.
Q. When you say it was an exciting moment in her life, did she say something to you that left you with that impression?
A. I'm pretty sure she had already got the uniform and the shoes, and she was really very proud of her daughters and she always had them dressed immaculately. And she had a great relationship with them. She was a great mum."
Annette Leary, one of Lynette Dawson's co-workers, also observed Lynette Dawson with her children:
"Q. Did you ever see Lynette Dawson interacting with her daughters?
A. Oh yes, I did. She loved them. She was such a good mother. She was so proud of them as well. She'd … each day when she'd come in even without children, she'd tell us how clever they were, what new things they were doing, new words that [YD] was learning because she was only two, so yes, she was very proud of them. She loved them."
Roslyn McLoughlin, with whom Lynette Dawson played tennis, commented as well:
"Q. When Lynette Dawson attended the tennis matches, was she ever accompanied by anyone else?
A. Her children, definitely.
Q. How many of them?
A. Two girls.
Q. And what observations did you make of her interaction with her children?
A. She absolutely adored them. They were the light like, she really doted on her children and loved them very much and they were her priority in her life."
Virginia Raison, another of Lynette Dawson's friends, said this:
"Q. What observations did you make of Lynette Dawson's interaction with her daughter [XD]?
A. Lyn could not have been more loving. I mean she was so desperate for children. Absolutely desperate. And she showered all the love that she had. The children were much more important…"
Julie Andrew was the Dawsons' neighbour in Bayview. She said this:
"Q. What did you see of her interaction with her children?
A. She was wonderful.
Q. What did you see her doing?
A. Oh, she was very caring. Very loving. Very tender. Extremely patient. A mother more so than I was. She was an inspiration.
…
Q. Can I ask you about that answer that you've just given. First of all, you've told the Court what is your opinion that she would never leave the children. Why, what's the basis for that opinion? What is it you saw and heard that led you to that conclusion?
A. Well, she had such a tough time becoming pregnant and having her babies and she was just so connected to them. She was, she would never have been parted from her children.
…
Q. Well she wasn't there, was she?
A. She would never have left the children, she would never have left the home, she would never have left those children behind.
Q. I want to suggest to you that you did not know Mrs Dawson well enough to know what she may have done in that particular situation?
A. I knew she would never have left her children behind."
BM worked for the Dawsons as a babysitter. Her evidence about this topic included the following:
"Q. What observations did you make of the interaction between Lynette Dawson and her daughters [XD] and [YD]?
A. She was a hands-on mum. She would get down on the floor and play with them. Read to them. Everything. Basically everything I ever saw her do was around the kids. So, yeah, a full-on loving mother."
Marilyn Dawson also offered an opinion about Lynette Dawson as a mother:
"Q. Since [XD] was born in 1977 until the last time you saw Lynette Dawson what observations did you make of her interaction, her being Lynette, her interaction with [XD] and [YD]?
A. Lyn was a good mum.
Q. What is the basis for you giving that opinion?
A. She was a loving mum. She was attentive. She did work when the children were very young, did go back to work, but she was, um, very happy to be a mum.
…
Q. Mrs Dawson, the absence by Lynette Dawson from the last time you saw her, was there any other times when she was absent from the house?
A. No.
Q. For days and weeks at a time?
A. She did go down to Nowra with Nan and Pop with her children and she stayed at her mum's at Clovelly occasionally.
Q. How many times, if any, were there when she would go away without having the children with her?
A. I don't think there were any times."
Merilyn Simms was asked about this as well:
"Q. In that event could you tell the Court the gist or the substance of what it is that she said about being pregnant?
A. She was overjoyed. She was thrilled to bits. It was what she wanted more than anything."
As already noted, Peter Dawson also expressed an opinion about Lynette Dawson as a mother:
"Q. What observations did you make, if any, of her interaction with her children?
A. Lyn was a competent mother."
Peter Dawson's description was in contrast to the views expressed by others. Having observed Peter Dawson in the witness box, I regret to say that his opinion appeared to me to be offered somewhat begrudgingly. I make that observation in aid of the proposition that it cannot in my view be taken seriously to derogate from the observations of others, including most significantly Peter Dawson's sister-in-law Marilyn Dawson.
Ms Hardiman, the artist commissioned by Lynette Dawson in late 1981 to draw portraits of her daughters, phoned Mr Dawson after Lynette Dawson had disappeared. Although the Crown relies upon this evidence in support of the unlikelihood of Lynette Dawson having planned to leave, it is for present purposes also evidence of the bond that she had with her daughters. It is evidence that Lynette Dawson had such a loving relationship with her girls that she wanted their images permanently preserved as pieces of art.
The evidence also indicates that Lynette Dawson was keenly anticipating her elder daughter's first day at school in February 1982. Patricia Jenkins said this:
"Q. I'm going to turn to ask you about your niece [XD]. When did she start school?
A. She started school some months after Lyn's disappearance. I don't know the exact date. I think it was towards the end of January school began. She was starting kindergarten.
Q. How do you know that?
A. Lyn told me she'd had her … [XD]'s uniform and Lyn said she was very excited about [XD] going to school, starting school."
Sue Strath referred to this as well, as earlier noted.
Lynette Dawson was not burdened by physical or mental health conditions that might explain her sudden departure. Standing alone, the passionate and credible evidence of the strong relationship between Lynette Dawson and her children is arguably completely at odds with the proposition that she would voluntarily and without explanation have decided to leave them.
Some of the evidence referred to in this section is in the form of witnesses expressing opinions about whether in their view Lynette Dawson would have left her children. Objection to that evidence was properly taken on behalf of Mr Dawson, and those opinions as such must be disregarded. The issue could hardly be the subject of expertise in any event. The evidence is not even admissible in the limited sense of the witness's reaffirmation of their observations of Lynette Dawson's interactions with her children. That affirmation, however, could not rise higher than the evidence itself. The questions of whether or not Lynette Dawson would have left her children, or of whether she did so, are matters for me to decide.
[26]
Friends and family
Lynette Dawson did not contact her friends or her family after 8 January 1982. That includes the fact that she did not phone them or correspond with them in writing. Despite the evidence to suggest that she lingered in the local area, she was never seen by her friends or work colleagues. The Crown maintains that it is not reasonably possible to accommodate the existence of a voluntary and rational decision by Lynette Dawson to abandon her home with an enigmatic and persistent failure to communicate with her circle of supporters. This seems to be all the more so when the underpinning assumption for her hypothetical departure was a state of distress arising from Mr Dawson's relationship with JC and the resultant destruction of her marriage and what might reasonably be thought to be a need for some form of contact or reassurance in those circumstances.
[27]
Clothing and personal effects
Lynette Dawson packed no bag. She took no clothes. She appears to have taken no personal items such as toiletries, makeup or jewellery. Even her contact lenses were found amongst her possessions in a blue container when delivered by Mr Dawson with the rest of her belongings. According to Mr Dawson's account, she stepped from his car in that condition onto the metaphorical footpath at Mona Vale, presumably on this hypothesis by then already having decided never to return.
Despite the tensions that were in play in the Dawson household in the weeks leading up to 8 January 1982, Lynette Dawson was at least physically and materially secure. Apart from her emotional burden, in the sense of her avowed distress and concern at the state of her marriage, she had all of the so-called necessities of life. The contention that Lynette Dawson would rationally decide in those circumstances to propel herself into a life of anonymity in a figurative state of nakedness, without it seems even a change of underwear, is relied upon by the Crown as so unlikely and so improbable as to be capable of rejection out of hand.
JC gave evidence of what she observed concerning Lynette Dawson's clothing, jewellery and personal effects when she returned to the Dawson home after South West Rocks:
"Q. What else was in that room apart from a bed?
A. There was a walk in wardrobe and drawers.
Q. What was inside the walk in wardrobe?
A. Lots of clothes belonging to Lyn on one side and Chris on the other side.
Q. What about those drawers you mentioned, what was inside the drawers?
A. In the drawers were Lyn's underwear and, you know, whatever you put in drawers.
Q. Apart from those clothing items of Lyn Dawson's that you've mentioned, what, if any, other items were there that did not belong to Chris Dawson in that bedroom?
A. There was a … like a basket where the … where there was jewellery.
Q. What type of jewellery?
A. Oh, there were two diamond rings. There was various costume jewellery as well and I think there was her nursing badge. I'm not sure about that, but definitely the diamond rings were there.
Q. The drawers that you mentioned, on a notional scale of empty to full, what was the state of …
A. I'd say full. I would say the wardrobe was bursting to overflowing with clothes and, to me, it looked full.
Q. What, if any, footwear did you see in the bedroom?
A. I didn't notice the footwear.
Q. Those clothing items that you mentioned as belonging to Lynette, what happened to them in the days and weeks that followed?
A. The clothes were all put in green garbage bags with the view to taking them to her mother's."
Gregory Simms confirmed that Lynette Dawson's nursing badges were among her possessions:
"Q. Along with the Sales Inspection Report and Selling Agency Agreement, what other items were in those bags that were delivered to your parents' place by the accused, Mr Dawson?
A. There were a pair of gardening gloves with dirt still on them, there were clothes, there were Lyn's nurse's badges.
Q. What do you mean by nurse's badges; what did they look like?
A. One was a circular one, I can't remember what was on it but it was a badge that the nurses wore when they were on duty to show they had passed their exams or they were sisters.
Q. What other items?
A. There was a small blue container with contact lenses in them.
Q. Any other items?
A. Yes, there was clothing.
Q. Apart from the items that you've told us about, the document, the gardening gloves, the nurse's badge, the contact lenses case, what else, apart from clothing, was inside those bags?
A. Particularly there were a pair of pink shorts…
…
Q. What else, if anything, was inside those bags?
A. Just clothing; underwear."
It seems to me to be extremely unlikely that Lynette Dawson would have chosen to leave with almost no clothing or personal effects. Mr Dawson told the police in 1991 that "Lyn had an excess of clothes". Mr Dawson has responded that this fact is consistent with a conclusion that he did not plan to make it appear as though she had left of her own accord.
[28]
Lynette Dawson's commitment to her husband
Despite the difficulties with her marriage associated with Mr Dawson's involvement with JC, the evidence suggests that Lynette Dawson was still committed to her marriage and her husband. Gregory Simms was asked about this:
"Q. You have described the relationship in interviews with the police between Lyn Dawson and Christopher Dawson and you have indicated or you indicated in those interviews that Lyn Dawson was very much in love with Christopher Dawson?
A. Very much so.
Q. And that you also said that Lynette Dawson loved Christopher Dawson with all her heart and soul?
A. That is correct.
Q. You also used the term that Lynette Dawson loved Christopher Dawson with every inch of her body?
A. That is also correct."
Sue Strath was asked about this as well:
"Q. Did she talk about anything else, topics outside the childcare centre?
A. Her family were her life so that was her life. She loved her husband and she loved her children. And they were everything to her.
…
Q. So you've just said the words 'she loved her husband'. What was it about your interactions with her that led you to the impression that she loved her husband?
A. She was very proud of her husband.
Q. I'll stop you there. Did she ever say anything to you that left you with the impression she loved her husband?
A. One of the things when … I think I'm jumping too far forward. When I asked her about the babysitter being … living in the house, and I said I don't think that's a … that's not a good idea that that's happening and she said nothing would happen, 'my Chris would never do anything that was wrong'. And she always called him 'my Chris'. He was always on a pedestal for her.
…
Q. From what she had said to you whilst you were working with her do you agree that she expressed or from the things that she said to you it was clear to you that she really loved her husband?
A. Yes, she did."
Lynette Dawson's commitment to her husband does not seem even to have been diminished by his decision to bring JC into their home. Anna Grantham referred to this in her evidence as follows:
"Q. I'll stop you there. What did she tell you about this girl moving in?
A. She was … she was telling us that Chris was pressing her to move in and she wanted to help the girl to study as well, but we were saying, 'I think you should really look into that because I don't think it's good enough for her to move in with you.'
Q. And when you were saying that, did she respond?
A. She felt sorry for the girl. She wanted to help her.
Q. I will stop you there. Did she respond?
A. Yes.
Q. Do you remember what she said?
A. Yes. She said, 'I feel sorry for her and because she's having a lot of trouble at home and she's studying that I would love to help her.' And she also said, 'I trust Chris. Chris will never do anything wrong.' She adored him."
Barbara Cruise affirmed the evidence on this subject that she had given at the coronial inquest:
"Q. You were also asked some questions at an inquest and I just want to remind you. You agree with what you said that in relation to her, to Lyn, to Mrs Dawson you said that she was … sorry at 67.1: 'She was very close to her family but she just felt that, yeah, that she thought that he was, you know, a good person and a good husband.'
You agree that's what she said, he was a good husband?
A. Yes.
Q. As well as a good person?
A. Yes.
Q. And you formed the view that at all times that she praised Chris's parenting capacity?
A. Yes. She didn't say a bad word about him, yeah.
Q. 'And always, no question about that, she loved him and she thought he was a good father'?
A. Yes.
Q. 'And she thought he was a good husband as well'?
A. Yes."
Virginia Raison also emphasised Lynette Dawson's devotion to her husband:
"Q. What observations did you make of their interaction in the years that you were mixing with them socially?
A. Look, it was very unusual in that, you know, my friends in the eastern suburbs did not behave like but Chris was absolutely infatuated … sorry, Lyn was absolutely infatuated with Chris as was Marilyn with Paul. It certainly wasn't anything that I'd observed before, that absolute adoration they had for their husbands."
Paul Dawson also adverted to the strength of the relationship between Lynette Dawson and his brother in the context of being asked about his surprise and disappointment that Mr Dawson did not spend Christmas with the family in 1981. He said this:
"Q. Mr Dawson, just take it slowly. Can you just indicate what you recall you said to Lyn and what she said to you, just do your best if you could?
A. Well, I was visibly upset, and Lyn asked me why, or Lyn would have known why, and I told her it was the first Christmas I had ever spent in my life without Chris being there, and she said, she basically calmed me down and told me not to worry, and I said I was worried about their marriage and where they were going, and she said, 'Don't worry,' you know, 'we will work it out'. She basically calmed me down and acted, comforted me that everything would be all right.
Q. All right. Were you surprised about her reaction?
A. Well, we had, we had, we didn't have that sort of close relationship where we opened our hearts up to each other, so I was surprised with the reaction as far as comforting me, and very pleased that she was confident they were going to be working things out over time."
The likelihood that Lynette Dawson voluntarily abandoned her husband must necessarily be considered in the light of her apparently unconditional love and commendably forgiving attitude towards him that others observed her to have had for him. The conversation with Paul Dawson, for example, was in the contemporaneous shadow of Mr Dawson's absence from the family Christmas because he was at that time spending time with JC is at Paul and Marilyn Dawson's home, although Lynette Dawson was at that time unaware of that fact, apparently understanding that Mr Dawson was in Ballina and on his way home. That appears from Mrs Simms' letter to Patricia Jenkins dated 4 January 1982 as follows:
"Dad & I had a very quiet Xmas at Aberdeen. I didn't feel like going really, but Lyn was going over to Joan + Sid's very early, would be in company most of the time, as it was when I rang her Xmas morning she'd heard from Chris who was at Ballina & was coming home the next morning."
[29]
Lack of financial independence
The proposition that Lynette Dawson abandoned her home must also be considered having regard to her financial position and access to money. It is hardly controversial that her ability to remain living away from her home, without access to a bank account or some other source of finance, informs the credibility of an hypothesis that her departure was planned or voluntary. The evidence about this is somewhat anecdotal but nevertheless informative.
The evidence indicates that Lynette Dawson had been hopeful of arranging for the purchase of a cubby house for her daughters for Christmas in 1981. Patricia Jenkins referred to this:
"Q. What else did she say about the cubby house, if anything?
A. She was concerned because she didn't know how she was going to get it for Christmas Day for the girls. She had told them about it so she didn't want to disappoint them, and it hadn't been paid for, and she wasn't sure about how much money she had in order to pay for the cubby house, even if it could be got to her place for Christmas Day.
…
Q. Did the topic of Lyn and/or her children, your nieces, visiting you come up in conversation at all?
A. Yes. I said to Lyn, 'Why don't you come up and stay with us over Christmas?', and she said she didn't have enough money, and I was not sure at the time whether she meant she didn't have any money to come up or if she did not know if she had to support the children from then on whether she didn't have enough money, you know, for future expenses, so I said, 'I'll send you down some money.' I wasn't sure how I could do that because it was right on Christmas. We were about 160 kilometre round trip to a bank and I knew Lyn wouldn't have easy access, without a car and without being able to drive, to get the money from a bank, but I made that offer and, yeah, she said she couldn't do that."
Barbara Cruise spoke of this as well:
"Q. To your knowledge, did Mrs Dawson have, apart from the cash, another method of payment?
A. She always seemed to be short of money, always seemed to be it always seemed to be a bit of an issue.
Q. When you say it was … it always seemed to be a bit of an issue, do you remember what she said?
A. She … she liked to buy knickknacks and nice clothes for the children but somehow or other there always seemed to be a shortage of money for some reason, I don't know. Exactly why I think that … but that's exactly how I felt, yeah."
Lynette Dawson did not contact her employer enquiring about any money she may have been owed in back pay.
It is instructive in this context to observe that from an entry for 29 April 1982 in the Missing Person's File, it appears Mr Dawson told police that Lynette Dawson had $500 in her possession on the day she disappeared. A note in the file says, "In possession of $500 when last seen". That reference does not appear in the original report of a missing person lodged by Mr Dawson on 18 February 1982. The Crown contends that this late reference to his wife having what at that time would have been a not insubstantial sum of money was an attempt by Mr Dawson to give strength to the otherwise frail proposition that she would likely have abandoned the home with nothing.
[30]
Mr Dawson's response: Lynette Dawson left of her own accord
Mr Dawson submits, on the contrary, that there exists a reasonable possibility consistent with his innocence that Lynette Dawson voluntarily left the family home on the morning of Saturday 9 January 1982 and that the Crown cannot exclude it as an available explanation for her disappearance. As I have already observed, acceptance of that as a reasonable possibility would be inconsistent with a finding of guilt beyond reasonable doubt. Although not emphasised in submissions with the detail or intensity I might have expected, I assume that Mr Dawson would wish to emphasise the following several reasons why Lynette Dawson may not only have decided to leave but why on one view it is unsurprising that she would have done so.
[31]
The marriage was over
It is not in issue that at some time prior to January 1982, Mr Dawson entered into a sexual relationship with JC. The precise timing and extent of this relationship is referred to later in these reasons. However, it is clear that Lynette Dawson was aware of it, that she was not happy about it and that she was being told by those close to her that it was unacceptable. It eventually led to Mr Dawson and JC packing up and leaving together before Christmas 1981 to travel to Queensland. Upon their return, Mr Dawson spent Christmas away from his family, including Lynette Dawson and his children. He spent Christmas night with JC.
The evidence establishes that Lynette Dawson had been very much in love with Mr Dawson. They courted as teenagers and married quite young. The photographs in evidence show them to have been close and affectionate, and that state extended into their relationship when they became parents. The interposition of JC as Mr Dawson's teenage lover might reasonably be thought to have shaken that relationship to its foundations.
I take Mr Dawson to contend in these circumstances that Lynette Dawson, confronted with the loss of her marriage and the love of her life, and the realisation that she could never expect to compete with JC or recover her relationship with Mr Dawson, took it upon herself in a state of total resignation to cut all ties with him, her children, her family, her friends, her job and in effect anything and everything connected with her previous life. So distressing and painful was the reality she confronted, that Lynette Dawson saw no option other than to abandon everything.
Ms David emphasised the fact that the marriage had apparently been a good one. Patricia Hartley, a childhood friend of Lynette Dawson, when asked about Mr Dawson, offered this:
"Q. For example, well, was your view of him that he was lovely?
A. Yeah.
Q. And so you agree that, if we put aside all the negative stories
A. Yeah.
Q. And just what you knew of him, he was lovely?
A. He was, yeah.
Q. And he was also a man that you have described as being a nice man?
A. Yes. Yes, I always thought Chris was good to Lyn and they had a great marriage, as far as I knew.
Q. And so your observations of the way of the way that he treated Lynette were of, would you agree, of a person who was affectionate toward Lynette?
A. Yes.
I perceive Mr Dawson's response to the Crown case to be that Lynette Dawson's loss of a previously good marriage to an affectionate husband was so cataclysmic that an otherwise inexplicable and arguably irrational decision acquires a respectable, if terribly tragic, logic. In the face of having lost her beloved husband, in effect a loss of everything, Lynette Dawson's decision to leave with nothing is, according to this hypothesis, entirely understandable.
[32]
Extreme unhappiness
The result of what she was confronted with was a state of extreme unhappiness.
In her letter to Patricia Jenkins dated 4 January 1982, Mrs Simms said this:
"Saddest Xmas I've had. Lyn wants Chris to go to see the Doc, is this Tuesday, I think, to see what is making him so angry with her."
Sue Strath, one of Lynette Dawson's work colleagues, was asked whether she had any conversation with Lynette Dawson about Christmas 1981. The evidence, including from Marilyn Dawson, establishes that Mr Dawson did not attend Christmas with the family that year, unlike his usual practice, but instead stayed away in the company of JC at Paul and Marilyn's home. Mr Dawson and JC had just returned from the journey north together that was interrupted by JC's illness. Despite that, JC and Mr Dawson spent Christmas Day together at 6 Gilwinga Drive, Bayview, the home of Paul and Marilyn Dawson and spent that night in the gym at Forest High School. Ms Strath's evidence was to the following effect:
"Q. Where were you when you spoke with her about that?
A. At work. At work.
Q. What did she say?
A. I said, 'Oh', you know, 'Hi. How's it going? How was your Christmas?' 'cause most people have got something to say about Christmas and…
Q. Was that the first time you'd seen her since Christmas?
A. Yes, it was.
Q. What did she say?
A. She said, 'It was - it wasn't a very happy Christmas because Chris had left but he was back now'.
Q. Did she say where he'd gone?
A. No.
Q. Did she say when he'd returned?
A. No.
Q. Did she say anything about how she was feeling?
A. She was feeling - well, if your husband has left you at Christmas she was feeling upset but, like I said, she was very professional. I never saw her cry or - she was upset."
Patricia Jenkins referred to Christmas 1981 as well:
"Q. Mrs Jenkins, do you remember any of the exact words or phrases that your sister Lynette used when you and she spoke on New Year's Day 1982?
A. Yes. My apologies for rambling. She said that Chris had gone on a yachting party and she said that she had asked him if she and the girls could go with him and he said 'no'. And then she said, well, they had such a sad Christmas, could he drive them down to the park and they could sit and watch the boats and he said 'no'."
It is not in my view controversial that Lynette Dawson was extremely unhappy with the deteriorating state of her marriage to Mr Dawson and with the relationship that he had developed with JC.
[33]
Low self-esteem
Associated with these things, Mr Dawson emphasised that Lynette Dawson had lost confidence in herself and in the prospect of ever reinstating her marriage.
Some evidence in the trial alluded to the issue of Lynette Dawson's self-esteem and whether she felt that her children still needed her. For example, during his cross-examination, Paul Dawson said this:
"Q. Right. Now, at that stage were you aware that the marriage between your brother Chris and Lynette was a troubled one?
A. Troubled? Yes, troubled. There were problems, yes.
Q. Right. Did you speak to your brother Chris about that?
A. Probably I would have, yes.
Q. Did you still maintain your attitude that you were not happy about his relationship with [JC]?
A. Yes.
Q. All right. Can you indicate what his response was to you, if any?
A. Oh, just that they were going through, he and Lyn had a few disagreements about things, and he was trying to sort things out, and that [JC] needed a … well, I don't know, I think [JC] was a problem on Chris's side, and Lyn had problems on her side with her, you know, her shopping and her … I know she was a good mother, Lyn was a good mother, but she felt that she, that her children didn't need her as much as the children she cared for, she looked after.
Q. Well, what was your source of knowledge about that?
A. Well, she told us.
Q. When did you speak to her about this?
A. No, no, she would say it at family get togethers, or wherever else she said, and she said that she never felt that her children needed her because Chris did a lot of mummying and looking after them anyway, but the children that she looked after as a nurse and in the child care, they needed her more, so I think that was a bit of a source of perhaps disappointment to her, I don't know, but she was certainly a good mother." [Emphasis added]
Barbara Cruise referred to Lynette Dawson's self-esteem in the following passage of evidence:
"Q. But she also spoke about the good relationship between Christopher Dawson and his children, didn't she?
A. Absolutely, yes.
Q. And she described him as an excellent father?
A. Yes, she did.
Q. Do you also agree that you said this about her in your interview, and again if you wish to look at it please do. It's at page 7. You were asked some questions about Chris and I'll just read out what you said at the time at answer 17 where you were asked this question:
'A. Seemed to be absolutely from her point of view and from mine excellent' … that is the relationship with her children … 'loved them dearly and they seemed to show the same when they were with her'.
Q17. What about Chris?
A. Well, didn't see him so often. He didn't come into the centre all that often. Um, very, very rarely and, of course, we had nights out. I think, but I don't remember there being any problem with him with the children or, you know. I think, no, that's not no, that's right. She said to me one time, um, I don't even know what started it but I said something about, I don't know what I said actually but she said to me that, um, no, the kids would, would be Chris or the kids loved Chris and he's an excellent father and I think she sort of was devaluing herself which is, which is where I think she'd come to. With all the, all the things that she was doing she certainly had lost, had lost her self-esteem and that, that she thought Chris was um an excellent father and that, um, you know, the kids would be maybe better off with, with Chris than with her'.
A. She did say that.
Q. And you felt that there was a combination of two factors going on there; one, she was quite low and the other factor was that she considered Chris or the children to … sorry, I withdraw that. That she considered Chris to really be well capable of looking after her children?
A. I don't think there was any doubt there at all, yeah."
Lynette Hutcheon also referred to an incident arguably informing the way Lynette Dawson related to her children and how she coped with motherhood:
"Q. You spoke about a situation earlier where [YD] apparently had bitten [XD]. Can you …
A. No, the other way around.
Q. I'm sorry. When that occurred, what did you observe and how did Lynette Dawson react?
A. Lynelle (as said) couldn't … she broke down. She couldn't cope. She didn't know what to … how to handle it. She just … that was when she was upset and said, 'I shouldn't have had children. I don't know them. Chris wanted children, so, you know, we had them,' but she was quite distraught. Kids bite and that was, I mean, [XD] was four. She was only a baby herself.
Q. Had you ever seen any other incidences like that?
A. No. When Lynelle and Chris … Lynette and Chris babysat for us one night and Sean was quite ill and she was marvellous with him. I thanked her and she said, 'I relate better with sick children than I do to well,' and I thought, because she had been a children's nurse, so working at a Children's Hospital, so, you know, I thought that was a rather odd comment.
Q. She appeared through your knowledge to be committed to the children that she nursed?
A. Yes, yes."
There is also some evidence to suggest that on the evening of Friday 8 January 1982, an incident occurred when Lynette Dawson threw her younger daughter onto a bed. As referred to elsewhere, the only source of that evidence is Mr Dawson, who would appear to have passed it on to Mrs Simms. Mr Dawson embraces this incident as fairly supporting the possibility that Lynette Dawson had finally decided, in effect, that she had had enough. Indeed, there is reference in Mrs Simms' letter dated 4 January 1982 to Patricia Jenkins that her daughters' behaviour was becoming difficult for Lynette Dawson:
"[XD] is being very possessive with her father + [YD] is just so aggressive at the moment + will give you a whack with her fist anytime she feels like it & very demanding, so with all the stress + strain on Lyn it sure is telling in her face."
Presumably also in this context, Mr Dawson would wish to draw upon the things he told the police in 1991, that Lynette Dawson had "thrown our little, our second daughter, our daughter, our second daughter onto the bed and sort of had … a bit of an emotional breakdown at the time". This was said by Mr Dawson to have occurred on the day before Lynette Dawson left.
[34]
Dark moods and violence
The Crown has led evidence in this trial suggesting that Mr Dawson was violent towards Lynette Dawson. That evidence is relied upon by the Crown to establish either or both that Mr Dawson had a tendency to act or think in a particular way or in support of an alleged motive to commit the crime of murder.
Mr Dawson does not, in response to the case against him, accept that the alleged behaviour occurred and disputes that the Crown has proved that it did. However, although the proposition was not advanced on Mr Dawson's behalf, perhaps understandably having regard to his position, there is on one view an available argument that Mr Dawson's violent behaviour, if established, and in the context of everything else that confronted Lynette Dawson at the time, may have contributed to her despair, loss of self-esteem and unhappiness and might have reinforced an already fomenting decision to break away from her life at the time. I have taken that argument into account in the present context.
[35]
Conclusion
Mr Dawson's response emphasises the evidence supporting the existence of a reasonable hypothesis that Lynette Dawson did in fact abandon her home. Her marriage was failing, to the point where counselling had been sought. Her husband was, and had for some time been, in a sexual relationship with a teenager who had lived for a period in the family home: they had gone away together, albeit only briefly. Lynette Dawson's relatives and friends, including Julie Andrew, Robyn Warren, Elva McBay and on one view Marilyn Dawson, had said in no uncertain terms that she should not put up with Mr Dawson's relationship with JC and should get her out of the home. Lynette Dawson herself confronted JC with the politely understated insinuation, if not a paradoxically genteel accusation, that she had been taking liberties with her husband. The relationship between Mr Dawson and JC had become public knowledge, a matter that was arguably weighing heavily upon her.
Although Mr Dawson neither acknowledges nor endorses the evidence suggesting any level of physical animosity or violence in the marriage, acceptance of that evidence would as well support a reason why, with everything else, Lynette Dawson might choose to leave. Nor should the notoriety of the relationship between Mr Dawson and JC, both within the family and among her friends, be discounted as a possible source of embarrassment and shame that could have led Lynette Dawson to the end of her emotional tether and to a decision to disappear forever.
Ms David also submitted that the fact that Lynette Dawson's clothes remained untouched is evidence that Mr Dawson did not plan to kill her or take steps that made it look like she had decided to leave. The remaining clothes are consistent with his innocence rather than destructive of an alternative hypothesis that she walked away.
However, having regard to all of the evidence, I do not accept as a reasonable possibility that Lynette Dawson voluntarily abandoned her home. All of the matters upon which the Crown relies in this context are strongly persuasive when considered together. Lynette Dawson was not mentally unstable. She adored her children. Despite the evidence to suggest that the marriage was under considerable strain, or that she might even have thought it was moribund, Lynette Dawson was still hopeful of a reconciliation even after Mr Dawson went away with JC. For example, Gregory Simms' evidence included the following:
"Q. What, if anything, did your sister Lynette say about her husband Chris?
A. She made a comment in relation to him leaving her and going to Queensland.
Q. Was there anything else that she said?
A. There was a note left.
Q. What did she say the note read?
A. 'Don't paint too bad a picture of me to the girls.'
Q. What was your verbal response to what your sister had said to you?
A. I asked her to come back to the Hunter Valley with me to have Christmas with my wife and my child.
Q. And what was her response to that?
A. She said, 'No, I want to be in the house in case my Chrissy', and she called him that, 'my Chrissy comes home'."
Even as late as a few days before Christmas, Lynette Dawson was still speaking in affectionate terms about her unfaithful husband. Nor did his uncharacteristic and undoubtedly hurtful behaviour upon his return, avoiding Christmas with her and spending the night with JC, as well as his absence with her on New Year's Eve, deter Lynette Dawson from seeking professional assistance from a marriage counsellor not long after. Although the evidence is silent about who between them arranged this consultation, it seems in the prevailing circumstances at the time that it is unlikely Mr Dawson did so. Be that as it may, Lynette Dawson attended the session and is clearly depicted in the evidence relating to the day before her disappearance as being both happy in the company of her husband and enthusiastically describing her hopes for the relationship that evening on the phone to Phillip Day and her mother. Sue Strath described Lynette Dawson on her return from counselling on the Friday:
"Q. And do you agree that you said that also that Mrs Dawson, Lynette Dawson, said to you, 'Chris was really positive about our future'?
A. Yes.
Q. That she told you that and she was really happy?
A. Yes."
Lynette Dawson's relationship with her daughters is a most compelling body of evidence in support of a rejection of the hypothesis that she might possibly have simply abandoned them. Mr Dawson relied upon the disappearance of the mother of Peter Dawson's first wife when she was only 10 years old, who walked out never to be seen alive by the family again, as supportive of the reasonableness of the possibility that Lynette Dawson did the same. However, the evidence relating to that incident only supports, if support were needed, that it is not beyond the realm of human experience that men and women may choose simply to disappear. That general and unexceptional fact must necessarily confront the precise and particular evidence in this case. On one view, Lynette Dawson had a reason to leave: her marriage was over. However, that simple fact, assuming for the sake of the argument that Lynette Dawson even accepted it to be so, must somehow accommodate the counterbalancing factors that in summary suggest that Lynette Dawson, a sane, intelligent and determined woman, would step from her husband's car on a Saturday morning with little but the clothes that she wore, somehow having rationally chosen to evaporate forever, seeping invisibly and unnoticed into an uncertain future with nothing and no one. It is trite to observe that it is possible she did so. It is not to my mind a reasonable possibility. To maintain that Lynette Dawson might possibly have abandoned everything that she knew is to substitute what is reasonably possible with frail speculation. To paraphrase the Crown's submission, the proposition is ludicrous.
Nor do I consider that some kind of incident with her younger daughter, even accepting it to have occurred, would or could somehow have transformed a woman, professionally experienced in the care and management of young children, who earlier that same evening was in a happy and positive frame of mind, into someone so distressed about her maternal or parental abilities that she enigmatically and silently determined to make, on this analysis, an apparently spontaneous decision to walk away from her life.
Lynette Dawson had a loving relationship with her family, especially her children. To the extent that it can reliably be extracted from the observations of others, Lynette Dawson appears clearly to have adored her husband, suggesting that a peremptory and unexpected decision to leave him was extremely unlikely. She disappeared having taken nothing with her. She was without the financial means to support herself for long or to finance her ability to ensure that she was never found. She never contacted her relatives or friends again. She had made several plans for the future that were inconsistent with an unheralded, unexpected and voluntary disappearance.
The Crown submission in this respect was as follows:
"During the time of considerable turbulence in her marriage in 1981 Lynette Dawson experienced five particular things. Firstly, she experienced the accused moving [JC] into her matrimonial home. Secondly, she encountered the accused trying to get her agreement to sell the home that she loved. Thirdly, she experienced the accused leaving her and her children just before Christmas with nothing more than a note. And fourthly, the accused left her alone on New Year's Eve supposedly so that he could go on a yacht party when in fact he spent the night with [JC]. And fifthly, she experienced the accused's anger at her prompting out of her concern for him to go and see a doctor.
It is therefore, the Crown contends, unbelievable that just as they were going to marriage counselling which she believed had gone well, she thought things were improving and she was hopeful for the future as she said to Sue Strath, Phillip Day and her mother, that she would, without warning, leave her marriage, her daughters, her children, her friends and never contact anyone else again but for the accused who was the very cause of the reason why, if that was so, she was leaving the marriage."
Having regard to the evidence to which I have referred, I consider that submission to be compelling and I accept it. Taking account of all of the evidence as a whole, I am satisfied beyond reasonable doubt that it is not reasonably possible that Lynette Dawson voluntarily abandoned her home. The hypothesis that she did so rises no higher than mere speculation, conjecture or supposition.
[36]
How did lynette dawson die?
The Crown alleges that Mr Dawson killed his wife. It is timely to recall the way in which the Crown framed its case.
At the heart of the Crown's circumstantial case is said to be Mr Dawson's very strong motive that flowed from what the Crown contends was his utter infatuation with JC and his determined desire to be with her. He had proposed marriage to her on several occasions whilst he was still married to Lynette Dawson. He had left his wife and children and sought to move to Queensland with JC only weeks before she disappeared. He left a note for Lynette Dawson asking her not to paint too black a picture of him to the children.
Associated with this is what the Crown contends is the obvious financial aspect to the motive. By getting rid of Lynette Dawson, as opposed to fleeing the matrimonial home to live with JC, Mr Dawson avoided any adverse financial consequence and the inconvenience and expense of a custody dispute.
There was also an associated plan to sell the house of which Lynette Dawson was very proud. A Sales Inspection Report and Selling Agency Agreement was discovered in the pocket of her dressing gown when bags containing her belongings were returned to her mother's home by Mr Dawson. That Sales Inspection Report was dated 21 December 1981. It was only signed by Mr Dawson.
JC gave evidence that Mr Dawson told her, when she was at South West Rocks, that Lynette Dawson had left and is "not coming back". The Crown contends that that is a piece of compelling evidence that incriminates Mr Dawson and should be accepted.
The Crown maintained that Mr Dawson's motives were his animosity towards his wife Lynette Dawson, his obsession with JC and his intention of avoiding the adverse financial and associated custody consequences of divorce.
Mr Dawson and Lynette Dawson met as teenagers and married in 1970, when they were 21 years old. By 1975, Lynette Dawson had not become pregnant and, consequently, Mr Dawson, unlike his twin brother Paul, had not fathered any children. If Robert Silkman is accepted, the inference is that by as early as 1975, Mr Dawson no longer wanted to be married to Lynette Dawson.
By 1980 at the latest, Mr Dawson had spotted JC. The Crown contends that the evidence shows that he picked her out in the schoolyard and started what would become the process of making her his own by arranging for her to be in his class.
Mr Dawson moved JC into the matrimonial home he shared with Lynette Dawson. He put a deposit down on an apartment to live with her but abandoned that plan when he was told he would lose a proportion of his assets if he left. He tried to convince his wife to sell their home. When that failed, he chose, above everything else, the one thing that meant the most to him in his life: JC.
Just before Christmas 1981, Mr Dawson left his wife, his children, his family, his home and his job to start a new life with JC in Queensland. When that failed, because JC wanted to come home and when it looked as if she was terminating the relationship with him, the Crown alleges Mr Dawson resolved that there was only one thing left for him to do and that was for him to murder his wife.
The Crown relies on pieces of evidence which, when assembled chronologically and looked at as a whole, are said to establish Mr Dawson's three coexistent motives. First, by the end of 1981, Mr Dawson held a deep animosity towards his wife. Secondly, by the end of 1981, Mr Dawson was obsessed with JC and wanted to be in a relationship with her, unfettered by the impediment that his wife Lynette Dawson represented. Thirdly, by the end of 1981, Mr Dawson had determined to avoid the adverse financial consequences of a dissolved marriage and the associated property settlement and child custody dispute.
The Crown maintained that the fact of these coexisting motives is made clear when what the Crown described as two timelines are placed side by side and compared: the marriage timeline, which is the timeline of the marriage of Mr Dawson to Lynette Dawson, and the JC timeline, during which Mr Dawson's infatuation and obsession with her intensifies. Mr Dawson's withdrawal from his marriage is said directly to correspond to his developing relationship with JC. The Crown maintains that this comparison gives rise to an irresistible inference.
Acceptance of the Crown's summary is, of course, dependent upon the existence of appropriate evidentiary support. Subject to consideration of one matter, it is to the evidence that I will shortly turn.
[37]
Robert Silkman
Although predating his interaction with JC by some few years, the Crown alleges that Mr Dawson was, for reasons possibly associated with Lynette Dawson's inability to conceive, interested to know where he could locate someone to kill her. To that end, so the Crown alleges, Mr Dawson approached a man called Robert Silkman on a plane flight returning from Surfers Paradise in late 1975. The evidence suggests that Mr Dawson had been to Queensland with other members of the Newtown Rugby League team for a post-season trip. Mr Silkman said he went as well. He gave evidence that on the flight back to Sydney, Mr Dawson approached him:
"Q. How did you get back to Sydney?
A. By plane.
Q. Who, if anyone, were you sitting with or near?
A. I was sitting next to Ray Lee.
Q. Were you closer to the aisle or to the window?
A. I was on the aisle.
Q. What, if any, interaction did you have with either Chris or Paul Dawson during that return flight to Sydney from the Gold Coast?
A. Sitting there, and it was Chris that come along and kneeled down to my level of where I was sitting and asked me did I know anyone that could get rid of his wife.
Q. What was your response to that question?
A. Well, I was taken back. I said, 'What do you mean?' I said, 'For good?' And he said, 'Yeah'. And I said, 'Oh look, I'll talk to you when I get back to Sydney'. And that was the end of the conversation.
Q. What, if anything, else, was said between you and he after that?
A. Nothing was said between me and him after that.
Q. Who, if anyone, did you tell about the words exchanged between you and Chris Dawson?
A. I spoke to Ray Lee.
Q. Tell the Court what you said to him, please?
A. I said to Ray Lee, I said …
Q. You can use the exact words, if you can recall them, that you used please.
A. I don't know about exact but they were around that … I said to Ray Lee, 'You wouldn't believe what Chris just said to me'. And he said … I was laughing, he said, 'Oh, he wanted to know if I knew someone to get rid of his wife'. And I think Ray's reaction was, 'What?' And I said, 'Yeah'. And I said, 'Yeah, he's fuckin … he's fuckin mad'. That's it. That's it. That's as far as the conversation went with Ray."
Although referred to later, the Crown also contends that this conversation is capable of lending support to the credibility of JC on the issue of whether Mr Dawson told her that he had contemplated recruiting a third party to kill Lynette Dawson.
Mr Silkman's credibility was put in issue by Mr Dawson. He had a significant criminal history as well as a history involving adverse findings in civil proceedings. Even though Mr Dawson told the police in his 1991 interview that JC's evidence about driving to a location in western Sydney to find a hit man was a "complete and utter fabrication", he was not asked by the police about Mr Silkman's allegation. This was for the obvious reason that Mr Silkman had not by then even gone to the police with his information. Mr Silkman's assertion that he immediately told Raymond Lee, who is said to have been seated next to Mr Silkman on the plane, what Mr Dawson is alleged to have said to him is also not corroborated by Mr Lee, who, significantly in my view, does not specifically remember that Mr Silkman mentioned the conversation while they were still on the plane and has a less than definite memory of when he was told:
"Q. Relative to that event, 1 October 1975, when was the first time that it came up in conversation?
A. It's really … that's a difficult question for me to answer because I don't really remember, but I do think it was on or around that time possibly or, I don't know, after that time he said something to me about what Chris had said to him or allegedly said to him.
Q. What did Robert Silkman tell you that Chris Dawson had said to him?
A. He said that he wanted to get rid of his wife.
Q. Did that come up in conversation again between you and Mr Silkman?
A. Not … not … not often, more of … when I say 'more recently', probably over the last, I don't know, since this podcast and whenever it sort of gained a bit of attention in the press he might mention it again to me, but, you know, he mentioned it to a few people I understand but it wasn't something we spoke about often, that's for sure.
…
Q. So using as a time dimension, 1 October 1975, and when you listened to the podcast, when in that timeline did Mr Silkman first mention what he told you Chris Dawson had said to him?
A. He'd definitely mentioned it before the podcast, you know, and to give you a time, I really can't give you a time, but it would have been when we were younger and possibly once or twice maybe between then and the podcast, but then more often after this podcast had been released.
Q. Are there any events that occurred in that time between 1975 and when you listened to the podcast that you could refer to as an occasion when Mr Silkman mentioned what Chris Dawson had said to him?
A. No, no, there's not. I can't recall.
…
Q. Where were you when that conversation happened with Mr Silkman?
HIS HONOUR: This is the first
CROWN PROSECUTOR: The first time?
A. The very first time, gees, I couldn't even tell you. We could have been at home, we could have been at a pub. I'm not sure. I don't know.
…
Q. Do you have any recollection of Chris Dawson on this flight walking down the aisle and approaching Robert Silkman?
A. No, I don't.
Q. Do you have any recollection of Mr Dawson saying in your presence, and Mr Silkman's presence, words about does he know about any man who could get rid of his wife?
A. No, I don't.
Q. I suggest to you that those words in those circumstances said by Mr Dawson would have been, if you were present, something you would never forget?
A. Yeah, you would think so, depending on what condition I was in, but yes, you would think so, yeah. By that I mean if we'd been drinking beer or booze or whatever."
In the course of the trial, I rejected Mr Silkman's evidence as evidence of any tendency on the part of Mr Dawson because it lacked significant probative value: see R v Dawson [2022] NSWSC 877 at [20] - [25] as follows:
"Tendency two: recruiting a third party to kill Lynette Dawson
[20] This tendency is said to derive from the evidence of Robert Silkman and [JC]. I do not accept that the evidence of Robert Silkman has significant probative value for the purposes of s 97(1)(b) of the Act.
[21] Mr Silkman played rugby league for the Newtown Jets along with Mr Dawson and his brother Paul Dawson. At the end of the 1975 season, the Newtown players travelled to Queensland for an end-of-season trip. The Crown case is that during the return flight, Mr Dawson approached Mr Silkman and said, 'Silky, do you know anyone who could get rid of my wife?' When Mr Silkman sought clarification, Mr Dawson is alleged to have replied, 'You know, get rid of her for good'. At that stage of his life, Mr Silkman socialised with certain criminal identities. The Crown contends that Mr Silkman's associations were notorious and that Mr Dawson knew of them.
[22] Mr Silkman made his statement to the police on 9 November 2018 after approaching a police officer known to him. He explains the delay in providing this information to police as the result of him being 'old school, in the sense that I don't like talking to the police about what other people do or say'. He said he saw news on television about a dig at Bayview, which occurred in September 2018. He did not listen to the podcast.
[23] Mr Dawson submits that Mr Silkman's evidence is so improbable that there exists a risk of concoction such that it would not be open to a jury rationally to accept it. The Crown's response is that, even if that were a proper basis to reject its tender, Mr Silkman's evidence needs to be considered together with aspects of the evidence of [JC] on a related topic.
[24] In my opinion, this evidence is bereft of probative value, let alone significant probative value. First, it is said to have occurred spontaneously in 1975, some 7 or so years prior to the events that give rise to these proceedings. Secondly, there is no evidence that Mr Dawson then had any animosity towards his wife that was likely to have generated the alleged inquiry made to Mr Silkman. Thirdly, to similar effect, the evidence suggests that they were in a happy relationship with plans to have a family. Part of an ABC Television Chequerboard programme from January 1975, which included footage of Lynette Dawson speaking to her sister-in-law in a domestic setting, supports that suggestion. Fourthly, Mr Dawson was not then in a relationship with [JC]. Although presumably on one view of the Crown case, the subsequent development of that relationship was not solely responsible for Mr Dawson's alleged motive to kill his wife, the absence of [JC] from Mr Dawson's life in late 1975 makes the curiously enigmatic and isolated approach to Mr Silkman entirely improbable.
[25] In accordance with the approach I acknowledge I am required to take, I put to one side the issue of Mr Silkman's credibility and reliability. It is sufficient for present purposes to say that any use to which the Crown might wish to put Mr Silkman's evidence will be subject to an understandable attack upon his credibility and reliability. I appreciate that Mr Dawson wishes to maintain even at this stage that Mr Silkman's evidence is of a type that it is 'so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury' and that I should discard it now for that reason. Whilst I acknowledge that there is considerable force in that suggestion I will, consistently with the approach I have adopted so far, not decide whether to accept or reject Mr Silkman's evidence now. It is in any event unnecessary to do so having regard to the view I have formed about the absence of significant probative value based on other considerations."
Now unconstrained by an inability to assess Mr Silkman's evidence by reference to my views about his credibility, I remain of the view that his evidence cannot be believed. However, with the added advantage of that assessment, I reaffirm my reasons for concluding that Mr Silkman's version of what happened is entirely improbable. Even though I do not accept that Mr Silkman's evidence is credible, I consider it to be of great significance that Mr Silkman conceded in the telling that he did not himself at the time think what he was asked was a serious request and confirmed that it was never followed up by Mr Dawson. Mr Silkman has a history of fraud. His version of what is said to have occurred does not reach the police until after the Teacher's Pet podcast becomes public. I consider that Mr Lee's recollection that he was told of the alleged conversation by Mr Silkman before the broadcast of the podcast to be mistaken. I consider that Mr Silkman's evidence of a conversation with Mr Dawson on the plane in 1975 is a fabrication.
I appreciate that it is the Crown's contention that Mr Silkman's evidence makes it more likely that JC's evidence about a hitman is both credible and reliable. That contention proceeds upon the basis that the origins of these separate versions are discrete. In the context of the extraordinary publicity that has attended the events that give rise to these proceedings, I consider that to be doubtful. I am not prepared to accept that Mr Silkman's references to a hitman were not inspired by a much later publication of JC's version of events in a similar vein.
Mr Dawson also attacked Mr Silkman upon the basis that Mr Dawson never went to Surfers Paradise on the football trip or that Mr Silkman was mistaken about both where it was they stayed and about where it was they watched a now famous boxing match televised from Manila. It seems unnecessary to resolve these minor details having regard to my conclusions about Mr Silkman's evidence of the critical conversation.
[38]
Mr Dawson and JC
It is instructive first to trace the development of the relationship between Mr Dawson and JC.
Before doing so, however, I should observe that the evidence in this trial concerning the beginning and development of the relationship between Mr Dawson and JC is far more detailed and extensive than my summary suggests. There is not and could not be any doubt that Mr Dawson and JC did meet at Cromer High School where he was a teacher and she was a student. The relationship became an intimate one and led eventually to a decision to go away together "to start a new life". A minute dissection of the intervening events, and of the areas of contest, such as where and when they first had sex, or whether Mr Dawson's attention was always or ever reciprocated with equivalent enthusiasm by JC, does not cause me to doubt that Mr Dawson clearly became extremely attracted to JC and that she ultimately displaced his wife as the focus of his desires. These uncontroversial findings, however, do not and cannot, standing alone, support a conclusion beyond reasonable doubt that Mr Dawson was so obsessed with JC that he was prepared to kill his wife in order to be free to have the so-called unfettered access to her. The Crown case certainly relies upon these matters, but only as part of a far more complex series of circumstances that it maintains, when considered as a whole, make out its circumstantial case.
[39]
Cromer High School
JC completed her Higher School Certificate at Cromer High School in 1981. It was there that she first met Mr Dawson. JC was at that time living in a less than happy home, her mother and father having divorced and her mother having then married a man with whom her mother was constantly arguing. There was excessive drinking in the home. The apartment they lived in was cramped. JC was understandably attracted to any relief she could obtain from her less than perfect domestic situation.
JC came to Mr Dawson's attention. Whether or not he organised it, she ended up in his physical education class in 1980. He appears thereafter to have taken a special interest in her. JC was receptive to his attention as a counterpoint to her own difficult situation with her stepfather's violent, aggressive and controlling behaviour:
"Q. Did you speak to anyone about the situation that you were in that you've just told the Court about?
A. I did speak to Chris Dawson.
Q. Was there anyone else that you confided in at that time about your home life?
A. I might have talked to my friends a little bit, but, you know, he was an adult and I felt I could trust him, as a teacher."
Although I will shortly refer to some of the details of the way in which the relationship between Mr Dawson and JC developed, I think it is important to make clear that the details are themselves of less critical significance than the fact that before JC had left high school, she and Mr Dawson were in a sexual relationship. Ms David on behalf of Mr Dawson was at pains to emphasise that, in her words, Mr Dawson's interest in JC was initially honourable: he was a teacher who was genuinely interested in giving her as much legitimate assistance as he could in the circumstances. JC was clearly amenable to confiding in Mr Dawson about problems in her home life and indeed ultimately about some distressing events from much earlier in her childhood.
However, the manner in which their relationship developed, or the precise identification or characterisation of the details of how that occurred, are, with the possible exception of what it says about Mr Dawson's character, to my mind of very little moment. Whether Mr Dawson became immediately attracted to JC as a prospective sexual partner, or whether that was a consequence or function of what developed from an initially platonic and benign interest, the undisputed fact is that the relationship at some point overstepped what was acceptable. Some theoretical moral assessment of Mr Dawson's behaviour, given that he was married and JC was his student, is not determinative of any finding I am required to make. I accept the Crown submission that Mr Dawson ultimately became infatuated with JC before she left school. It remains to be seen whether that infatuation was, or became, an obsession that led Mr Dawson to kill his wife.
At some time in the middle of 1980, JC commenced babysitting for the Dawsons. She was at that time in Year 11. The arrangement was that Mr Dawson would pick her up at her home on the day she was required and that she would stay overnight and be driven back home by him the following day.
JC obtained her learner's permit. She was still at school when Mr Dawson commenced giving her driving lessons:
"Q. How did you learn to drive?
A. Chris Dawson taught me.
Q. When did he teach you to drive?
A. From the time I got my learner's permit I was in … he offered to teach me to drive, as a means to spend time with me.
Q. Where did you drive when you were being taught to drive by Mr Dawson?
A. Around the area of Dee Why where I lived at the time. I didn't get my licence immediately after, took a long time, let's say."
As time went by, Mr Dawson left notes professing his feelings of love for JC:
"Q. When you went to school in that year 1980 did you have a bag, a school bag?
A. Yes.
Q. Were there ever times when you looked in that bag and found something that surprised you?
A. Yes.
Q. When was the first time you found something that surprised you?
A. In 1980 Chris Dawson had bought me a school bag that I asked for, it was the second school bag he bought, and he used to leave notes of love and affection in my bag whenever I went to biology and he knew where the classroom was.
Q. Was anything said by him to you about what should happen with those notes?
A. When I left the relationship he said, I should destroy all those notes.
Q. Is that what you did?
A. I destroyed most of them."
Some of these letters were tendered and became exhibits in these proceedings.
Exhibit N is a series of cards and letters that JC said were given to her by Mr Dawson for Christmas 1980 and Valentine's Day 1981 on which Mr Dawson had written the following:
"All my love forever xxx
All my love forever xxx
Happy birthday xxx
Valentine I love you xxx Forever
The happiest of birthdays with all my love xxx
Happy Valentine's Day xxx Always"
JC said that exhibit O was given to her at Christmas in 1980 with the following words in Mr Dawson's handwriting:
"Petal
Once or twice
Every minute
Love Always
God"
JC said that the reference to God was used as Mr Dawson wanted to disguise who he was then, because it was 1980 and she was 16, "and that's what he called himself".
Exhibit P is self-evidently written for delivery in February 1981:
"The most beautiful girl
in the world on her 17th B'day
To my lovely, beautiful Bub,
Hoping today is a very happy one + knowing we will share all the
birthdays to follow
All my love forever xxx"
Exhibit Q is in the handwriting of Mr Dawson in the following terms:
"To my lovely, beautiful [JC]
The happiness you have given me will be with me forever
Happy Valentine's Day '81"
Exhibit S was written by Mr Dawson as follows:
"J.M.D. xxx
To my darling [JC],
All my love on our first real Christmas together,
Knowing I'll love you more each day, wishing only for your happiness forever.
Chris xxx"
JC insisted that this card was given to her for Christmas in 1981. She rejected the suggestion that the reference to their "first real Christmas" must mean that the card was given to her after they were married. "J.M.D." was said by her to be a reference to Jxxx Mxxx Dawson, even though she was not using that surname in 1981. I accept that evidence as truthful.
On one occasion when Mr Dawson and JC were driving together, they stopped and parked at Dee Why beach. It was during the day, and they sat there with the car stopped. Mr Dawson said to her, "You know you make me feel like an older [RH]". That was a reference to a boy who attended Cromer High School with JC. Mr Dawson then kissed JC for the first time.
[Redacted]
They spent New Year's Eve there in 1980. After the first time they had sex, it became a regular occurrence. In 1981, Mr Dawson would typically pick up JC at a designated spot, drive to a remote location and they would have sex in his car. According to JC, Mr Dawson told Lynette Dawson that he was studying at the library. This relationship continued throughout 1981.
The increasing level of intensity in Mr Dawson's feelings for and about JC are said on the Crown case to be reflected contemporaneously in two separate incidents involving Mr Dawson and boys she knew who themselves were interested in her. One boy was PS. The other was RH.
[40]
PS
PS attended Manly Boys' High School. His final year was 1982. In his final years of school PS had a part-time job at Coles at Dee Why. Part of his duties was to collect shopping trolleys from the underground carpark. It was at Coles that he met JC who worked at the store as well. He knew she went to Cromer High School and they shared a common circle of friends. PS said:
"[JC] was a very attractive 16 year old girl and I was a 16 year old boy and, apart from general conversation, there would have been opportunities I suppose for me to ask her out or see if she wanted to go to the local disco we were going to. Everyone was going to the Collaroy Plateau disco in those days and that was a bit of a thing."
He said this:
"Q. What, if any, questions did you ask her more than once?
A. Well, I don't think other than general conversation. The only thing that I would have asked her more than once was, potentially, would she go out with me or go to the movies with me or some such. But it wasn't relentless."
PS played rugby when still at school. Paul Dawson became his coach in 1980 and 1981. PS recalled the only conversation he had with Mr Dawson outside of school:
"Q. Outside of school, was there ever a time when there was a conversation between you and Chris Dawson?
A. Just once.
Q. Where did that conversation occur?
A. In the car park of Coles while I was collecting trolleys.
Q. Are you able to tell the Court what year that was in in terms of your school years?
A. Look, I'd like to say as I recall it was either year 10 or very early year 11. I wasn't driving. So that's a bit of a point of reference for me, if you like.
Q. When the conversation occurred, what were you doing?
A. Collecting trolleys.
Q. And when you were collecting trolleys what happened?
A. So, again, being asked to go down by the manager to collect trolleys, it was a dimly lit carpark with cracks of light that came in from the outside. I was on my way. I'd collected my train of trolleys, if you like, and was heading toward the ramp and I heard a voice say, 'Hey you,' or something like that and I turned around and there was a very large man coming towards me. Do you want me to continue?
…
Q. Did you recognise the man?
A. Not at first.
Q. How close did he get to you?
A. Well, he got very close. He shoved me against the concrete ramp that went on an angle up to the store and he sort of backed me into that concrete structure and, you know, held me against the structure.
Q. Who was it that did that to you?
A. Chris Dawson.
Q. Were there any words exchanged between you and he before that happened?
A. Apart from him saying 'Hey you' or words to that effect, no.
Q. After he did what you described, were there any words exchanged between you and him?
A. Well, my memory is that Mr Dawson said words to the effect of, 'I just want you to stay away from her. Don't go near her or else,' or words to that effect.
Q. Was anything else said by him at about that time?
A. Well, I think probably the next thing that occurred was me saying, 'I don't know what you're talking about.' I was very scared. I was 16 years old and very small, and he was a very large man, and I can recall just being shocked by what was going on and I think I said something like, 'Who are you talking about? I don't know what you're talking about.'
Q. Was there a reply?
A. Yes, well, that's when he said, '[JC]. [JC]'."
PS did not thereafter ask JC out on a date again.
PS was adamant, in the face of cross-examination suggesting this incident was a fabrication, that it "absolutely happened". He was also certain that he had asked JC to go out.
As with a number of witnesses, PS was in contact with journalist Hedley Thomas many years after the events about which he gave evidence and a series of telephone conversations between them, unknowingly recorded by Mr Thomas, were played in court. PS was pressed about whether he had a preconceived view about Mr Dawson's guilt and it was put to him that he had a lot of ill-will towards him. PS ultimately said this:
"I found it, and I still do, offensive that a teacher was involved with a 16 year old student at the time. I have four children now and it's probably only become more amplified, yes. So yes, on that level, yes that's true."
PS's apparent enthusiasm for the journalistic pursuits being conducted by Hedley Thomas, which the recorded conversations appear clearly to convey, was relied upon by Mr Dawson as a basis for completely depreciating, indeed disregarding and rejecting, PS's evidence. Jocular references to famous actors and a mini-series may well have been a technique adopted by Hedley Thomas with a number of prospective witnesses in order to promote or secure their cooperation with his journalistic endeavours. PS was one such witness. Understandably, Mr Dawson maintains that the context offered by these apparently light-hearted references diminishes the worth of any evidence that a witness may later give in this trial. Mr Dawson maintains, in PS's case, that the tone and content of his conversations with Hedley Thomas reflect upon him so unfavourably that his evidence concerning the incident in the Coles carpark cannot be accepted.
Appreciating the force of that submission, I am nevertheless completely satisfied that PS's evidence of the carpark incident is true. PS worked with JC. I have no doubt that he was interested in her and that he asked her out. The incident he described would undoubtedly have left an indelible impression upon a 16 year old boy and is not something that in my experience is likely to have been fabricated. It was confined in space and time. It occurred, if not out of sight of the public, at least in a location, being an underground carpark, that was relatively obscured from general view. Apart from the contention that PS admittedly now disapproved of Mr Dawson's relationship with JC, he is otherwise an independent and disinterested participant in this trial. PS made his statement to the police on 20 March 2014, which was four years before Hedley Thomas' Teacher's Pet podcast was released.
In addition, exhibit 35 in this trial is a series of transcripts of legally intercepted telephone conversations between Mr Dawson and a number of people over a long period spanning March 1999 and November 2018, very shortly before Mr Dawson was arrested. Part of an intercepted conversation between Mr Dawson and his daughter ZD on 30 November 2018 is as follows:
"CD: It's a bit too hot out there. But, I'm sick of the bullshit. Absolutely sick of it.
ZD: Yeah. Well - - -
CD: …ones that I can't even remember that he's supposed to be slammed up against the wall or something.
ZD: Yeah. Yeah.
CD: Great.
ZD: Yeah. Well, he - that guy, Jeff Deegan, he doesn't - on the actual podcast though, 'cause I listened now, the one that just got released, he doesn't even remember it. So, he particularly didn't remember it himself.
CD: Yeah. It's another guy saying he was - - -
ZD: Yeah. Yeah. No, it did say in the article, didn't it? Yeah. Sorry.
CD: Yeah. … trying to remember the one involving his mother. I wouldn't' have - I've got a feeling some guy kept saying he'd like to fuck her or something - something like that. I think I spoke to him and said, 'No. Keep away from her'.
ZD: Yeah.
CD: Did I - I honestly can't - I would not have slammed someone up against a wall and threatened them. But, I'm pretty sure he was saying - something disgusting with your mum."
In her final submissions, Ms David referred to this conversation, and for presently relevant purposes, also PS, in these terms:
"Dealing with [PS] and some other witnesses, we say again that this is an area where the accused is considerably forensically disadvantaged by reason of delay.
Your Honour has heard in one of the telecommunication intercepts, that's at exhibit 35 at call 5949, Mr Dawson denies having committed the act as described by [PS], although he said 'I may have touched him on the' … he accepts he may have touched him on the chest in relation to … in response to what he perceived as the pestering of [JC]. But he doesn't have … he indicated he doesn't have a lot of recollection about it."
It is clear enough from the terms of the intercepted conversation that Mr Dawson and his daughter were discussing matters that had come to light in the podcast. Although Ms David's submission about what Mr Dawson accepted he may have done was inaccurate, I take her perfectly reasonable and understandable concession to be that Mr Dawson was speaking to his daughter about the incident described in evidence by PS. Even though Mr Dawson does not accept the complexion that the Crown wishes to place upon the carpark confrontation, there does not appear to be a reasonable doubt, and I find, that the incident described by PS actually occurred.
The Crown maintains that this incident is wholly consistent with Mr Dawson's controlling and possessive, if not obsessive, concern that no one should come between him and JC. The Crown maintains that this obsession was still operative on 8 and 9 January 1982 and also inspired Mr Dawson's journey to South West Rocks some days later.
[41]
RH
RH went to Cromer High School with JC. He was about four months younger than her. RH had a paper run in Dee Why in his later school years and he knew where JC lived. RH said he was "potentially interested" in JC at that time.
RH played rugby and rugby league. Mr Dawson was his physical education teacher and football coach. RH said he had a close relationship with Mr Dawson and confided in him for advice:
"Q. How did you regard your relationship with the teacher, Christopher Dawson?
A. At the time close.
Q. What topics would you discuss with him?
A. Personal guidance topics, sport, family, girlfriends.
Q. At that time when you were having those discussions with him what year was [JC] in compared with the year that you were in at school?
A. Same year, whatever that was, years 10 or 11.
Q. Did [JC's] name come up in conversation between you and Chris Dawson?
A. Yes, it did.
Q. What did you say to him about [JC]?
A. That I was … I had an interest in getting closer to her.
Q. What was his response?
A. I can't recall specifically, but the discussions were about how to engage in conversation, I guess, and build up to a point of asking her to go out."
RH and Mr Dawson, in effect, conceived of a plan for RH to ask JC out. He described it as follows:
"Q. What did you do, if anything, about building up to a point where you could ask her to go out with you?
A. Look, the detail's very sketchy, but the one I recall was the … working with Chris to get to a point of being able to ask [JC] out by arranging for her … for him to be at her place and where I could get to her inadvertently and ask her out.
Q. Did that remain merely a plan or is that something that actually happened?
A. It happened but then it was aborted, so it technically didn't happen, but effectively the plan was in place and the asking out didn't occur."
RH said that the plan was that he would go to JC's home. He had not been there before. As a result of a conversation he had with Mr Dawson, RH expected that when he arrived, Mr Dawson would be there but that Mr Dawson would then leave, giving RH an opportunity to ask her out. RH described what happened when he went to the house on his bike one Sunday:
"Q. What happened when you got to that point as close as you did to [JC's] home, what happened on that day at that time?
A. I just … I got there, I hopped off the bike, went in, went to the front door and the plan had changed and I was encouraged to leave.
Q. What was it that happened that prompts you to say that the plan had changed?
A. I was expecting, being [JC's] house, for [JC] to greet me at the front door, but instead Chris greeted me at the front door and said, you know, the plan … words to the effect of, you know, plan's aborted.
Q. What did you do?
A. I could see through his shoulder, over his shoulder that [JC] was there. I left in confusion, rode off."
This was not mentioned again:
"Q. Did this aborted plan come up in conversation after that between you and Chris Dawson?
A. I don't recall having a real conversation after this experience with Chris."
RH said that at Cromer High School he observed JC sitting on Mr Dawson's lap in his office. RH's relationship with Mr Dawson was scaled back after the plan was aborted.
The cross-examination of RH did not suggest that Mr Dawson was not at JC's home on the occasion when RH turned up. RH said he had no recollection of a later conversation with Mr Dawson put to him in cross-examination in which Mr Dawson explained that there had been an incident of violence at JC's house that day.
The Crown contends that these incidents are a manifestation of Mr Dawson's attitude that no one apart from him should have any interest in, or relationship with, JC.
[42]
The relationship develops
JC said that Mr Dawson asked her to marry him "over and over and over again" when she was 16 until she finally agreed to do so in 1981.
By October 1981, the situation in JC's home had become intolerable for her. The violence had escalated to the point where her father took her to the Chatswood Police Station to lodge a complaint. She moved into the Dawson home at 2 Gilwinga Drive, Bayview:
"Q. Who made the complaint?
A. My father took me up to Chatswood Police Station to lodge a complaint.
Q. And when you said that you had to move out, where did you move to?
A. Chris Dawson offered me a room at his house.
Q. Were there any other offers to move anywhere else?
A. Dad wanted to offer me a place at his place in Blakehurst but I was just about to sit my HSC and I didn't want to move away from my friends and so Chris Dawson offered for me to go and live with him and his wife.
Q. The topic of you moving into the house of Chris and Lynette Dawson, was that ever something discussed between you and Lynette Dawson with or without Chris Dawson present?
A. No.
Q. And did you move in?
A. Yes.
Q. What month did you move in?
A. About October."
The October timing would appear to be confirmed by an entry in Mrs Simms' diary for 7 October 1981:
"Woken up with 'Lazy Nanna will you wake up' sung to me by [XD]. Lyn to work. [JC] to school with Chris. [JC] has problems + is Chris's shadow! Lyn home very unhappy almost in tears about Chris. I weeded the garden etc. Home looks 'unloved'."
JC stayed with the Dawsons for several weeks. She said Lynette Dawson was very welcoming to her, but Mr Dawson used to sing cruel songs to his wife with double meanings. During the time that she stayed there, JC would regularly have sex with Mr Dawson when Lynette Dawson had gone to bed or when she was in the shower. She also said that Mr Dawson would serve alcoholic drinks to Lynette Dawson that would cause her to fall asleep.
At the Cromer High School end of year formal in 1981, JC went accompanied by Mr Dawson. She described him as her "date" for the night. JC sat with Mr Dawson and the other teachers and their partners. The Crown submitted that this demonstrated that Mr Dawson was behaving like a man who no longer cared what happened to his marriage and as one who was not concerned that his extramarital relationship with JC should remain secret. Mr Dawson referred to this relationship as an "affair" when speaking to police on 15 January 1991.
Things came to a head at about this time when Mr Dawson was admitted to hospital for minor surgery on his nose. On one occasion, probably 5 November 1981, JC visited him there and was seen by Helena Simms to wipe his nose which was dribbling. Mrs Simms appears to have informed Lynette Dawson that this had occurred. Mrs Simms' diary entry for that day refers to the incident in detail and to a long conversation with her daughter about it. JC described the incident as follows:
"Q. What interaction did you have, if any, with Chris Dawson after he had had the surgery?
A. I went to visit him at the hospital and I sat on the bed and wiped the end of his nose cause it was dribbling.
Q. What time of the day or night was that?
A. It was in the afternoon after school.
Q. After that visit to the hospital that you've just mentioned where did you go to?
A. I went to my part time job.
Q. And where did you sleep that night?
A. That night I slept at Paul Dawson's.
Q. When's the next time after you worked that shift at Coles after going to the hospital where Mr Dawson was there that you saw Lynette Dawson?
A. When I got home from work.
Q. Was there a conversation between the two of you?
A. Yes.
Q. Do you remember the exact words used by Lynette Dawson in that conversation?
A. Yes.
Q. What did she say to you?
A. She said, 'You've been taking liberties with my husband'."
JC explained that she understood those words to indicate that Lynette Dawson was by then aware that she was in a sexual relationship with her husband. JC had until that night been sleeping at the Dawson house, but she moved out that same night to stay with Paul and Marilyn Dawson. That night was the last time JC ever saw Lynette Dawson. JC remained living at Paul and Marilyn Dawson's home until 21 or 22 December 1981. On the following day, she and Mr Dawson packed up his car with garbage bags full of their possessions and drove north to Queensland "with the intention of not returning to Sydney". Mr Dawson told her that they were "going away to start a new life". However, JC became ill and homesick and "was really very, very unhappy" and "wanted to come home". She and Mr Dawson spent Christmas Day 1981 in Paul and Marilyn Dawson's bed, having driven all night returning from Queensland. They spent Christmas night at the gym at Forest High School:
"Q. The following day was Boxing Day; where did you spend that?
A. I was dropped off to my mother's because I told Chris Dawson that I didn't want to continue with the relationship and he dropped me at my mother's.
Q. How long did you stay at your mother's for?
A. Possibly an hour or so.
Q. What happened at the end of that hour?
A. Chris Dawson came and picked me up and took me to my sister Christine's place at Neutral Bay.
Q. And how long did you stay at Christine's place at Neutral Bay for?
A. Oh, about a week.
Q. At the end of that week where did you go?
A. South West Rocks."
JC said that she spent New Year's Eve with Mr Dawson at the headland at Manly.
[43]
SOW
SOW was an acquaintance of JC. She went to Forest High School where Paul Dawson was a teacher. She admired him greatly. She baby sat for Paul and Marilyn Dawson. From time to time, Mr Dawson and his brother and she and JC would all be together in a car. SOW gave this evidence:
"Q. Lynette was the wife of Chris Dawson. Had you ever met her?
A. Yes.
Q. When was the first time you met her?
A. I'm not exactly sure, but it would have been in those two years. We would sometimes drop off Chris or pick up Chris on the way, with their houses being so close, and I would meet her there at the home.
Q. When you were in the car with Chris Dawson and Paul Dawson, and [JC], did Lynette Dawson's name ever come up in conversation?
A. They wouldn't call her Lynette Dawson.
Q. Was she called anything else?
A. 'She', 'her', she came up in conversation but only … my memory is that she was never spoken about very kindly.
Q. If she wasn't spoken about kindly, how was she spoken about by specifically Chris Dawson?
A. I specifically remember in the car times when we would pick up [JC] from school and [JC] and Chris would be talking about her or how, 'if only she wasn't around' or 'if only she was gone'. My memory of … I don't remember when those conversations happened, but I remember even one time specifically going to Lindfield, being in the car, and [JC] was sitting in the back seat with me and I remember her being really upset and Chris turning around and saying something about, 'well', you know, 'she just has to go', or it was like that, like, something and I was just looking out the window and I didn't really want to have anything to do with it.
Q. A little bit earlier in that answer that you gave, you said that someone said, 'if only she was gone', who said that?
A. Chris.
…
Q. What word was used to refer to Lynette Dawson when you were in the car with Chris Dawson, Paul Dawson and [JC]?
A. My recall was whenever it was about her, it was about 'her', 'she' or 'her'. I don't remember them ever saying Lynette and I don't remember … they would say things like, you know, well, 'she needs', you know, 'she this' or 'she won't be there' or 'I'll wait until she goes' or that type of thing. I don't recall a specific word that they used for her."
SOW recalled hearing Mr Dawson refer to Lynette Dawson as a "bitch".
The Crown promoted this evidence in support of both the deteriorating relationship between Mr Dawson and Lynette Dawson as well as the consequential development of the relationship between Mr Dawson and JC.
SOW was cross-examined at length to suggest that her evidence was suspect for a number of reasons. Significant among these was the suggestion that her involvement with Hedley Thomas and his podcast meant that nothing she said could be accepted as truth. That forensic attack is referred to later in the context of the Teacher's Pet podcast.
[44]
Mr Dawson's "plans"
The Crown maintained that Mr Dawson had a series of four plans that would ensure that his relationship with JC continued and that his marriage could be brought to an end.
[45]
(1) The North Manly flat
While JC was still living with Paul and Marilyn Dawson, Mr Dawson had discussions with a woman about renting a flat in North Manly where they could live. He put down a deposit. However, according to JC, Mr Dawson took advice from his brother Peter about the possible financial consequences for him of doing so, and Mr Dawson decided thereafter not to proceed to leave his wife and move in with JC in the North Manly flat:
"Q. What things did you hear Peter Dawson say to Chris Dawson at around the time of the proposed moving into the flat in Manly?
A. I know he spoke on the phone to Chris Dawson with … Peter spoke to Chris Dawson on the phone in relation to what would happen … what would happen to the property at Gilwinga Drive if he chose to move out of it.
Q. And how do you know that? By that, did you hear Peter Dawson say it or did you learn it in some other way?
A. Well, I was there at the time, and Chris Dawson, when he got off the phone from Peter Dawson, said what his brother had told him.
Q. What did Chris Dawson tell you that his brother Peter had told him?
A. That if he moved out of the Gilwinga Drive property, that would jeopardise his rights to his property.
Q. On that topic, was anything else said by Chris Dawson?
A. Probably that, 'We're not doing it because I don't want to lose my property,' so another alternative to be thought of.
Q. When you were looking … when you went to that flat in North Manly, where were you living?
A. I think at Paul Dawson's."
Peter Dawson gave evidence in this trial denying that conversation. However, Peter Dawson spoke with Detectives Pendergast and Loone on 4 March 1999, about one week after they had spoken to Mr and Mrs Hutcheon, as part of Damian Loone's investigation. A note of the conversation with Peter Dawson records the following:
"Peter Dawson was unable to specifically recall giving Christopher advice on the consequences of leaving Lyn but does not deny that he may have done so. If it did occur then he may have told Chris that he would lose between 60 - 70 % of what he owned together with loss of custody of the two children."
The Crown submitted that common human experience would suggest that a person in Mr Dawson's position in 1981, wanting to leave his marriage but mindful of the effect that might have on his asset position, would be likely to seek legal advice from a family member about it. The Dawson house at Bayview represented a significant asset. The evidence also suggests that Mr Dawson loved his children.
[46]
(2) The "hitman" allegation
One of the most contentious issues in these proceedings relates to an account given by JC of an occasion when she was driven by Mr Dawson "out west" to somewhere "over the Harbour Bridge". She was still at school and she said on the occasion in question she was wearing her school uniform. JC described this incident in her evidence as follows:
"Q. The journey started you said at school. Where did he drive to?
A. We drove over the Harbour Bridge somewhere that I hadn't been before.
Q. How familiar were you with the suburbs of Sydney south of the Harbour Bridge?
A. I was familiar with the eastern suburbs but not where … wasn't where we went.
Q. Where did you go?
A. Well, I don't know. You know, I was in my school uniform. I was not supposed to be in the car. I don't … it was just somewhere out west as I recall it.
Q. When the car came to a stop at some stage, what could you see?
A. I could see a chain wire fence in front of the car where we'd stopped and then through the chain wire fence I could see a building quite far away with steps, a short number of steps up to it. It looked like a building site.
Q. What, if any, signage was there?
A. I didn't see any signage.
Q. When the car came to a stop, who was in it?
A. Chris Dawson and I.
Q. At some point the car started up again and went somewhere?
A. (Witness nodded.)
Q. What happened during that period from the time the car stopped to the time the car took off again with you in terms of your movement?
A. I waited in the car. I was told to wait in the car. He was going inside to this place. So I watched him go into this building and then I, you know, kept a low profile and …
Q. Why did you keep a low profile?
A. Because I was in my school uniform and I wasn't supposed to be there and I didn't know where I was. There was no one around. It was, you know, a bit …
Q. What, if anything, had been said about why the car was stopping at that location?
A. Well, when he came back, when Chris Dawson …
Q. No, no, before he got out of the car, what if anything was said about why the car stopped at that location?
A. I wasn't given a reason. He just said, 'I've just got to go in here for a minute. I won't be long.'
Q. How long was he gone for?
A. Oh, it's hard to say now but it didn't seem very long. It wasn't hours or anything. It could have been 15, 20 minutes.
Q. When Mr Dawson returned to the car, what, if anything, did he say to you?
A. He said … I think I asked him, 'What was that about because we're going and it doesn't seem like we've done anything.' He said, 'I went inside to get a hitman to kill Lyn, but then I decided I couldn't do it because innocent people would be killed, would be hurt'."
JC said that she related this incident to Gregory and Merilyn Simms when she spoke to them in 1990. Mr and Ms Simms did not mention this in their evidence-in-chief. Merilyn Simms said that JC had told her that Mr Dawson "wanted to end the marriage, he wanted to get rid of her". It was curiously not until she was cross-examined that Merilyn Simms made any reference to a hitman:
"Q. Just on that last point Miss Simms, do you recall the conversation with [JC] that you've just referred to, do you recall whether there was the subject of a hit man raised during the course of that conversation?
A. Yes, there was."
No further detail of that topic was drawn from Merilyn Simms.
Mr Dawson was asked about this issue in his 1991 interview with the police:
"Q125. It's been alleged by [JC] that on one occasion prior to ah, Lyn leaving ah, you. Sometime between October and December of 1981 that you and she travelled together by car somewhere on the southern side of the Sydney Harbour Bridge. She doesn't know, she's ah, not familiar with that area of Sydney. And that you went to a hotel and that ah, she remained in the car whilst you went inside and ah, you came out a short time later and ah, you drove back to ah, Bayview. And that some weeks later you said to her, 'Remember when we went out to that pub? I went to get a hit man to kill Lyn but I decided that I couldn't do it because innocent people would be killed.' What do you have to say about that allegation?
A. Complete and utter fabrication.
Q126. Do you recall driving ah, over to that area of Sydney with ah, [JC] at any stage?
A. No. If we did it would have been for one of our rendezvous parking session, not to ah, no. Other than sort of Friday nights where we needed to go parking…
Q127. So you deny that allegation?
A. Strongly."
KL was a friend of JC who was at South West Rocks with her in 1982. She did not see JC again until JC had left Mr Dawson. She recalled being in a car getting petrol with JC with others when they were all asking JC why she had left Mr Dawson and what had happened to Lynette Dawson. The substance of what JC said to them was that she believed Lynette Dawson had been murdered.
KL said, "She couldn't explain - she said all her rings were left, all her clothes were left, she felt that she had been murdered". She was then asked this:
"Q. … what if anything, did [JC] say on the topic of what happened to Lynette Dawson in response to anything that was said by those other people that were present, apart from you?
A. She said it was weird that all her rings were in a bowl on the dressing table, that all her clothes were there, and she felt that Lyn had been murdered, and she felt that Chris had, she said that Chris had taken her somewhere once. She didn't know where she was going. He told her to stay in the car, and he took something out of the glove box and she said she felt it was money to pay someone to kill Lyn, or who had killed Lyn."
When cross-examined on the terms of a statement that she had given to the police on 28 December 2018, KL agreed that it included the following recollection of what JC had said:
"I don't know, but he drove me somewhere, I don't know where, and he grabbed a brown paper bag from the glove box in front of me and left me in the car while he went somewhere…I think he must have got a hitman to kill her or something…She must be dead, because she didn't take any of her clothes or wedding rings or anything."
I have raised this issue in the context of tracing the development of the relationship between Mr Dawson and JC. In that sense, the present reference to it is out of context, having regard to the use that the Crown wishes to make of it. That is to say, the Crown advances this evidence to suggest that it is significantly probative that in 1981 Mr Dawson contemplated using a third party to kill his wife and that it has significant probative value on the issue of whether he killed her in fact, either alone or with the assistance of someone else, in January 1982.
Mr Dawson challenges this evidence on a number of bases. First, JC has given differing versions of what she said occurred. One version has Mr Dawson telling her why he went into the hotel when he returned to the car, whereas another version has him relating his purpose for doing so some weeks later. Secondly, JC does not ever refer to a brown paper parcel in the glovebox, even though her friend KL suggests that this was part of the version of the incident JC told her. Thirdly, even though JC has indicated that she told Gregory and Merilyn Simms about it, Gregory Simms does not refer to it in his evidence-in-chief although he did agree in cross-examination that at a coronial inquest he said that JC did tell him that Mr Dawson had said that he was going to hire a hit man but had changed his mind. Merilyn Simms similarly only mentions it when prompted to do so in cross-examination. Fourthly, by the time JC first told anyone about the incident, she was effectively in Family Court proceedings with Mr Dawson and facing a court ordered return to Queensland with her daughter if her custody rights were not going to be in jeopardy. In a related sense, it was not until after JC left Mr Dawson in early 1990 that she ever spoke to anyone at all about the possibility that Mr Dawson may have killed his wife. Fifthly, it seems improbable in the extreme that Mr Dawson, or more generally anyone who on the Crown case was contemplating killing his wife, would tell his young and impressionable and, on one view somewhat reluctant, lover that he was contemplating arranging for his then wife to be murdered. Properly understood, it is in my view improbable that Mr Dawson, who on JC's evidence had been regularly asking her to marry him, even while he was still married, would have thought that his chances of securing her agreement to, or indeed any kind of enthusiasm for, his proposal might somehow be enhanced by making it clear to her that he was prepared to murder his wife so that could happen. The Crown did not embrace a theory that I should find that Mr Dawson said these things to JC as part of a complex plan to raise the idea of killing his wife in advance of doing so in order that he might later rely upon his change of mind as evidence of his total rejection of the idea. Finally, and in isolation, the evidence taken literally supports the inference that Mr Dawson had a thought at one time about arranging for someone to kill his wife but that he discarded it. It seems to me to be difficult legitimately to reason to a conclusion that giving voice to a proposal that is simultaneously rejected can be probative of anything at all.
It follows that I am not satisfied that Mr Dawson ever said to JC that he had contemplated hiring a hitman to kill Lynette Dawson but that he changed his mind.
[47]
(3) Sale of 2 Gilwinga Drive
The Crown says that Mr Dawson determined to sell the family home. On about 21 December 1981, Mr Dawson executed a Sales Inspection Report and Selling Agency Agreement. This is an agreed fact. Lynette Dawson did not sign this document. As appears elsewhere, the document was discovered by Gregory Simms in the pocket of Lynette Dawson's dressing gown that was returned to Helena Simms' home by Mr Dawson. Gregory Simms said that Lynette Dawson told him that she did not want to sell the house and that is why she did not sign the document.
Clearly enough, if Mr Dawson's plan was to effect a sale of the matrimonial home and permanently entrench an equal distribution of the sale proceeds, his plan was inherently flawed.
[48]
(4) A new life in Queensland
Finally, as appears elsewhere in these reasons, Mr Dawson packed up all his belongings and left 2 Gilwinga Drive with JC on a journey to Queensland. The note that he left for Lynette Dawson is elsewhere described. JC became ill and the plan was discarded.
The Crown maintains that the failure of these plans ultimately led Mr Dawson to take a different course, being his decision to kill Lynette Dawson, so that he could be with JC, with whom he was obsessed and infatuated, unrestricted by Lynette Dawson's presence, and financially undiminished by having to divide his assets.
[49]
South West Rocks
JC spent New Year's Day back at her sister's home at Neutral Bay. She gave the following evidence about what happened next:
"Q. What at that point, New Year's Day of 1982, was your plan for the future as far as Chris Dawson was concerned?
A. Well, I knew that there was a lot of pressure to stay with him and I didn't ‑ I was just a child and I didn't want that. I knew my friends were at South West Rocks, I think. My sister and ‑ two of my sisters were at South West Rocks in a caravan that my father owned and I thought, 'Oh, that's a really good way to get away. I wonder whether I could go there.' I didn't know my friends were there as a matter of fact.
Q. How did you get to South West Rocks?
A. I contacted my sister [BC's] friend [VE] whose mother worked for an airline and [VE] was going up on a plane, so I got a ride up in the plane to Kempsey."
JC said that she stayed at South West Rocks in a caravan for about a week and a half. There was a public phone box quite near where the caravan was and she called Mr Dawson at his home every day on the phone. She did this because he asked her to do so. JC said this:
"Q. What did he say to you in those phone calls?
A. He said that he missed me and he had hives and he had gastric problems, the same as I had when I was so upset on the drive to move away, and he said he missed me terribly and couldn't live without me, that kind of thing. Wanted to know exactly what I was doing."
JC then gave this evidence:
"Q. What other people, if any, came up in the conversations between you and Chris Dawson during those phone calls?
A. I guess he would ask what I was doing with other people. He didn't talk about himself at all, his own family life.
Q. What, if anything, was said about Lyn Dawson?
A. There was only one time he brought up Lyn Dawson.
Q. What did he say?
A. He said, 'Lyn's gone. She's not coming back. Come back to Sydney and help me look after the children and be with me.'
Q. Eventually you did leave South West Rocks. How long before you left South West Rocks did the phone call you've just told us about occur?
A. A day before. He came up straight away.
Q. What time did you see him? What time of the day or night did you see him at South West Rocks?
A. Oh, dawn. I knew that he had slept the night in his car, and my sister [NC] and I walked along the beach and sort of met him.
Q. How did he get to South West Rocks?
A. He drove in his car.
Q. How did you leave South West Rocks?
A. We drove in his car."
I pause at this point to indicate that I accept as truthful JC's evidence about these things and her recollection of what Mr Dawson said to her. Despite the perhaps not unexpected attention that JC has received as a participant in this trial, her evidence is with some exceptions not always controversial. For example, her evidence about the development of her relationship with Mr Dawson from her days as a student at Cromer High School, putting aside the intimate details she has described, is significantly corroborated by others. JC's evidence that Mr Dawson told her that "Lyn's gone. She's not coming back" is not corroborated but I find it to be true. It was, in fact, entirely consistent with Mr Dawson's stated knowledge that Lynette Dawson had gone, in the sense that she had left him. Importantly, however, accepting JC's evidence that those words were spoken does not foreclose the existence of an innocent interpretation, in the sense that she had gone but was still alive. Any conclusion that the words were spoken by Mr Dawson with an understanding that Lynette Dawson was dead can only be formed by reference to the whole of the evidence in this trial.
MC went to Cromer High School with JC. She arrived in South West Rocks just after New Year's Eve. She left after 12 January 1982, which was her 18th birthday. MC gave this evidence:
"Q. When did you learn of your Higher School Certificate results?
A. I learnt of it that week, before my 18th birthday, earlier in that week in January.
Q. The 12th of January 1982 was a Tuesday. Which of the days before that did you learn of your Higher School Certificate results?
A. I would have thought … I don't know.
Q. On the day that you had your birthday, who else was at South West Rocks that you knew?
A. I had quite a few friends, and they're from Sydney. Would you like me to name them?
Q. Hopefully not. Was one of them [JC]?
A. No. Unfortunately.
Q. Do you have any recollection of seeing her at South West Rocks…
A. I do.
Q. …in January of 1982?
A. I do. She was there earlier in the week.
Q. When did she leave South West Rocks?
A. She left around the 10th or the 11th of January, and I was disappointed because she wasn't going to be there for my 18th birthday.
Q. How long had you known her for?
A. I had known [JC] since I was in kindergarten. We grew up together.
Q. How did she leave South West Rocks?
A. She left with our PE teacher, Mr Dawson." [Emphasis added]
MC recalled that Mr Dawson came to South West Rocks on either 10 or 11 January 1982. She was not with JC when Mr Dawson turned up. MC was in the campground and could see them in the distance. MC said that she did not want JC to leave and that she said to her, "don't go, stay". JC responded, "I have no choice, I have to go". MC's evidence corroborates JC's recollection that Mr Dawson arrived at South West Rocks on either 10 or 11 January 1982. MC's evidence is inherently believable when one has regard to her longstanding friendship with JC and the reasonable disappointment she expressed at JC not remaining in South West Rocks for MC's 18th birthday on 12 January 1982.
KL's evidence was that JC had left before 11 January 1982, the day of her father's birthday, when they received their Higher School Certificate results.
The evidence also establishes that VE, one of the girls in the group at South West Rocks, turned 18 on 15 January 1982. JC's evidence was that she was in South West Rocks for the release of their Higher School Certificate results but that she left South West Rocks before VE's birthday. JC recalled that VE had wanted to return to Sydney for her birthday with Mr Dawson and JC but that Mr Dawson refused to take her.
A significant point of contention in these proceedings relates to the date when Mr Dawson collected JC from South West Rocks. In her evidence, she said that she thought it was "on or about the 10th or 11th or 12th of January". Much of the cross-examination of the Crown witnesses, including JC, who gave evidence about this topic, was directed to eliciting agreement with the proposition that it was later than this, possibly 16 January or thereabouts. That cross-examination was born of the perception that on the Crown case, Mr Dawson was obsessed with JC and was not prepared to waste any time before installing her in his home. Mr Dawson submitted that his enthusiasm was much more muted and that he did not travel to South West Rocks to collect her until much later. As with much else in this case, the fact that Mr Dawson drove to South West Rocks to collect JC at some time between 10 January and 16 January 1982 is not in dispute.
I should indicate at this stage that it does not seem to me to be of critical significance to determine precisely when Mr Dawson went to South West Rocks to collect JC. However, the Crown case is that Mr Dawson collected JC on 11 January 1982, consistently with his obsessive desire to have her back with him as soon as possible. It is not in dispute that whenever it was, Lynette Dawson had already disappeared. There is at most a difference of only seven days or so between the competing possibilities. The Crown case is that Mr Dawson's decision to drive north to return JC to his home, whenever it occurred, is inconsistent with any understanding that Mr Dawson could have had that Lynette Dawson might return, and supports the inference that Mr Dawson knew that she would not do so. The precise timing of the trip, whenever it may have been, does not on the Crown's analysis derogate from either the strength or the rationality of that inference.
However, when account is taken of the independent evidence of MC, I am satisfied beyond reasonable doubt that Mr Dawson collected JC from South West Rocks before MC's 18th birthday on 12 January 1982.
[50]
2 Gilwinga Drive
Upon her return to Sydney, JC moved in to live with Mr Dawson at the Dawson home. Lynette Dawson had by this time disappeared. There is a dispute about precisely when JC moved in with Mr Dawson and what the nature of the relationship between JC and Mr Dawson was from then on. That dispute undoubtedly arises from the fact that Mr Dawson maintains, in response to the Crown case, that there is no merit in the proposition that he was obsessed with JC and accordingly that he did not feel the need to instal her in his house with unseemly haste.
It will be recalled that Paul and Marilyn Dawson travelled to Lake Munmorah in early January 1982 and remained there for about one week. Marilyn Dawson gave evidence, based upon the fact that Mr Dawson and JC had spent the day at her home on Christmas Day, that she did not think that the husband and wife relationship between Mr Dawson and Lynette Dawson seemed stable. In her view, that marriage was "very shaky". Upon their return from Lake Munmorah, Marilyn and Paul Dawson visited 2 Gilwinga Drive. Marilyn Dawson said that they walked up to Mr Dawson's house and had a conversation with "Chris and [JC]" at the door. Marilyn Dawson said that she thought "Chris said Lyn was missing".
I am satisfied that Mr Dawson and JC commenced cohabitation in a sexual relationship as soon as they returned from South West Rocks. I consider that Mr Dawson's affidavit evidence filed in the Family Court, in which he said that he commenced a de facto relationship with JC in April 1982, cannot be true. It is not reasonably possible to accept, and I do not accept, that Mr Dawson and JC did not immediately resume what had for some time beforehand been an energetic sexual relationship, even if JC's enthusiasm for it may not have been as unrestrained as Mr Dawson's. I have no reason to doubt the truthfulness of JC's evidence about that as follows:
"Q. When you went to sleep after arriving back there from South West Rocks, where did you sleep?
A. In Lyn's bed.
Q. The night that followed, where did you sleep?
A. In that same bed.
Q. How many more nights did you sleep in that bed?
A. Every night."
Part of the statement of Margot Newlands, JC's mother, dated 8 September 1998, said the same thing:
"14. As soon as Chris picked up [JC] from South West Rocks [JC] moved into 2 Gilwinga Drive with Chris. This was early January 1982. This was basically straight after Lyn had disappeared."
Indeed, at least by the end of January 1982, Marilyn Dawson would appear to have formed a consistent view:
"Q. As at that time, the beginning of the school year 1982 when your husband was teaching at The Forest High School, what was your understanding based upon what you saw and heard of the relationship between [JC] and Chris Dawson?
A. Well, I thought they were a couple."
JC turned 18 in February 1982. She was then living with Mr Dawson. He gave her a card for that birthday with the following notations in his handwriting:
"To the most beautiful girl in the world on her 18th birthday
To my beautiful [JC],
Hoping it is a Happy Day for you - you deserve every day full of happiness and love.
All my love always,
Chris xxx
Happy Birthday [JC],
Thank you for being our [JC]
Love the terrible two Sh's
[XD] x & [YD] x"
Although JC commenced and continued to sleep in the former matrimonial bed, the bedroom itself was not immediately cleared of Lynette Dawson's belongings:
"Q. Those clothing items that you mentioned as belonging to Lynette, what happened to them in the days and weeks that followed?
A. The clothes were all put in green garbage bags with the view to taking them to her mother's.
Q. And those other items that you mentioned that were in a basket, what happened to them?
A. They remained at Gilwinga Drive. I was allowed to go through Lyn's clothes and keep anything I wanted.
Q. And what, if anything, did you keep?
A. A couple of tops, some pants. I didn't give it a second thought. This was after, you know, some weeks."
JC remained living at 2 Gilwinga Drive from that point on until Mr Dawson's marriage to Lynette Dawson was dissolved, and until she and Mr Dawson married at the house in January 1984 and they moved to live in Queensland later that year.
[51]
Consideration
The Crown maintains that I should be satisfied beyond reasonable doubt that Mr Dawson's steadily and unambiguously intensifying interest in JC, and his behaviour from the time when his interest in her first became manifest up until the point where he returns with her from South West Rocks to Gilwinga Drive to commence their life together, establishes the rise of an uncontrollable obsession that caused him to kill his wife in order to be free to live with JC. On more than one occasion the Crown described this evolution in general terms as an apparent strategy of "out with the old and in with the new".
Subject to one matter that I will shortly mention, I consider that the Crown's analysis is accurate and compelling. Mr Dawson's relationship with JC did become more and more intense and involved over the period from their first encounter at Cromer High School until their return from South West Rocks, and obviously so. However, there is nothing arising from the nature and extent of that relationship taken in isolation that inculpates Mr Dawson on the charge that he faces. It cannot be the subject of doubt that this will not have been the first occasion in history when a man and a woman have done what Mr Dawson and JC did. In that sense, the Crown's portrayal of the relationship between them over time is not necessarily controversial. I hasten to acknowledge that Mr Dawson told the police, by way of example, in his Antecedent Report, that he left home before Christmas in 1981 to be by himself but returned on Boxing Day having missed his wife and daughters, hoping to resolve their differences. To the extent that Mr Dawson maintains, in response to the Crown case, that that was an accurate and truthful account of his feelings at the time, a proposition that, as appears below, I reject, it is clear that he disputes that the Crown has proved that this was an inevitable outcome for Mr Dawson and JC.
The Crown has established, to my satisfaction beyond reasonable doubt, that Mr Dawson determined that he would leave the relationship with his wife and commence a substituted relationship with JC. I accept the evidence of JC that he made enquiries about renting an apartment where they could live. I also accept her evidence that she overheard Mr Dawson speaking to his brother Peter about the possible Family Law implications and consequences for him if he did so. I also recognise the arguable insignificance of that particular evidence in any event having regard to Mr Dawson's decision to leave the marriage with JC and move to Queensland: that is to say, Mr Dawson's physical withdrawal from the marriage and cohabitation with JC in Queensland or North Manly could hardly have produced significantly different legal outcomes for him. The evidence that Mr Dawson was hopeful of selling 2 Gilwinga Drive also fits with this analysis, even though it bespeaks a fundamental ignorance or lack of appreciation of the need for Lynette Dawson's agreement to any such plan.
I am satisfied that Mr Dawson was obsessed with JC and with the prospect of losing her. One indication of that can be seen in his decision to pack up his belongings and drive with her to Queensland either without legal advice before doing so or despite it. Another indication can be seen in the speed with which he moved to retrieve her from her teenage holiday with her school friends. The circumstances point persuasively towards a conclusion that Mr Dawson decided that he would end his marriage and move on with JC. I am satisfied of that as an intermediate fact beyond reasonable doubt.
The one matter to which I referred as an exception is, at this stage of my deliberations, that proof of that obsession, and of Mr Dawson's associated plan to discard his wife in favour of his lover, does not standing alone prove that he also murdered her in order to achieve the outcome he desired. Plainly put, proof of Mr Dawson's obsession and associated desire to replace his wife is not by itself sufficient to establish the crime charged. Proof beyond reasonable doubt that Mr Dawson murdered his wife is not by itself established only by proof that he was obsessed with JC and/or that he wanted her as a so-called replacement for his wife.
[52]
Mr Dawson and Lynette Dawson
There is no evidence in this trial that I accept that there were any fundamental difficulties with the marriage between Mr Dawson and Lynette Dawson at any time prior to 1980. There is evidence that Lynette Dawson was unable to conceive without obstetric surgery, but from that point on, the marriage would appear to have been unexceptionable. If I have not already done so, I reject as fanciful the proposition that Mr Dawson's personal frustrations with not becoming a father around the same time as his twin brother would have led him to consider killing his wife. The ABC Chequerboard programme, even allowing for editorial discretion, certainly gives the impression that Mr Dawson and Lynette Dawson were, in 1975, in a loving relationship as husband and wife. The Chequerboard evidence was tendered by Mr Dawson.
The Crown alleges that the event that changed this was Mr Dawson's encounter and relationship with JC. The evidence that suggests any deterioration in the Dawson marriage clearly post-dates that encounter.
It is important to note that Mr Dawson has mounted a significant challenge to the Crown evidence that suggests that his formerly stable relationship with his wife changed or that he began to manifest previously absent signs of disaffection, frustration, anger and even violence. These challenges were often based upon the proposition that particular witnesses were irrevocably compromised by the influence upon them of the Teacher's Pet podcast, either because they have developed a predisposition against Mr Dawson as a result of listening to it or participating in it, or because their memories have otherwise been corrupted or supplanted by the publicity that it has generated. More fundamentally, most of the witnesses who speak of what they saw or heard Mr Dawson say or do to Lynette Dawson, or who relate what she told them, were her close friends, who might reasonably be supposed to have been most affected by her disappearance and presumed death. These are matters that I have kept in mind at all times when assessing the credibility and reliability of witnesses in this category.
[53]
Anna Grantham
Ms Grantham worked at the Warriewood Childcare Centre and met Lynette Dawson there in 1980 or 1981. They formed an instant friendship. Lynette Dawson became one of her best friends. Even so, Lynette Dawson did not like talking about her personal life and was secretive about it.
Ms Grantham recalled selling items at some markets with Lynette Dawson when she met Mr Dawson. She thought that Mr Dawson appeared agitated and aggressive. She later spoke to Lynette Dawson about this:
"Q. Did you talk about what had did you talk about the market?
A. Yes, when I got to work, you know, there was no children at the other centre yet because it was occasional care so children come and go and we brought on the market, talking about the market, Lyn and I, and I said to her I was very surprised the way Chris was towards her, cranky, and he was aggressive with words.
…
Q. Did she respond?
A. Yes, she did.
Q. What did she say?
A. She just looked very scared.
Q. When you say, 'she looked very scared', can you describe for us what you saw?
A. Well, her face was just changed. She appeared to be worried, hurt.
Q. Did she say anything?
A. I can't remember what she said.
Q. If you can't remember the specific words that she used, can you tell us the substance of what she said?
A. It was what I said to her that, you know, I thought Chris appeared to be aggressive towards her and was surprised. She said to me, 'Yes, he can be very aggressive towards me,' and I said … she said, 'One day we were having a fight and I'm at the pool and he actually grabbed me by the back of my hair'.
…
Q. Please continue?
A. She said he grabbed her by the back of her hair and he pressed it on the floor on the mud with her face.
Q. Did she say where that had happened?
A. Around the pool.
Q. Which pool?
A. Their own pool. There will be a day we were fixing it up or something at the time.
Q. Did she say when that had happened?
A. No. But I just reacted and I just … I could not help it and I said, 'Oh my God. He could have easily killed you.' They are the words.
Q. Did she respond to that?
A. Yes.
Q. What did she say?
A. She said, 'Yes, he could easily have killed me,' and of the way she looked..
Q. I will stop you there. Did she tell you why this had happened or what had happened before he did that?
A. She didn't say.
Q. Did she tell you how long he had held her or held her face that way?
A. She said, 'Yes, I could not breathe. I was gasping for breath'." [Emphasis added]
Ms Grantham agreed that the italicised words do not appear in the statement that she gave to the police.
Ms Grantham also said that Lynette Dawson told her she was being pressed by Mr Dawson to have JC move into their home. Ms Grantham said she cautioned against it, but Lynette Dawson said she felt sorry for her:
"Q. Do you remember what she said?
A. Yes. She said, 'I feel sorry for her and because she's having a lot of trouble at home and she's studying that I would love to help her.' And she also said, 'I trust Chris. Chris will never do anything wrong.' She adored him."
Ms Grantham was cross-examined at length. In particular, she was challenged on her recollection that Lynette Dawson had told her that she had been at the hospital on the occasion that JC was wiping Mr Dawson's nose. Ms Grantham insisted that Lynette Dawson told her she observed this directly:
"Q. You also agree that in your statement you told the police that Lyn had told you something else, and that she'd said this:
'Lyn also told me that Chris had an operation on his nose, and one night she was going to visit him but Chris wouldn't let her. And this upset Lyn as she wanted to visit Chris.'
Do you remember?
A. Yes, I remember that very clearly.
Q. And then you also went on to say:
'Lyn did go and visit Chris against his wishes. And when she got to the hospital, she told me that she caught this young girl [JC] sitting on the bed and stroking or nursing his nose.'
A. Yes.
Q. And you'd said that, 'Lyn told me later on that she was hurt when she saw this'?
A. Yes.
Q. So it's your evidence, isn't it, that …
A. Yes.
Q. … that she actually saw [JC] sitting on the bed?
A. Yes, she told me that.
Q. Suggest to you that Lyn didn't say that she ever saw [JC] sitting on the bed, would you accept that you were wrong?
A. No, because she did tell me that. And it only happened the night before that they went to the sorry, that she went to the hospital. She was still very hurt the next day when she came to work."
Ms Grantham did not suggest that Lynette Dawson should go to the police over the swimming pool incident. That does not seem unusual to me. However, it does seem entirely unusual that Lynette Dawson, a woman described by Ms Grantham as a person who did not confide about her personal life, would have related a story as dramatic as the incident appears to be. The evidence from Ms Grantham, and others, is that Lynette Dawson adored her husband. I have some doubt that Lynette Dawson would have related anything to Ms Grantham that was so explicitly critical of him. In my opinion, Ms Grantham has probably been influenced by the events that publicly exploded more than three decades after Lynette Dawson's disappearance. It is sufficient if I indicate that I do not consider Ms Grantham's evidence to be at all reliable.
[54]
Annette Leary
Ms Leary also worked at the Warriewood Childcare Centre with Lynette Dawson. She said that she never actually met Mr Dawson. However, she related an incident described to her by Lynette Dawson which she thought was in 1981:
"Q. Ms Leary, did Lynette Dawson ever talk to you about her husband?
A. Only she said that they were having a little trouble in the marriage and she had talked Chris into going to a marriage counsellor with her to see if they could resolve it.
Q. You just said there that 'she said that they were having a little trouble in the marriage', do you remember what she told you about the trouble in the marriage?
A. No, not really. But one day when I came into work she was already there and she had bruises on her throat and I just said, 'Oh, what happened to your throat?' and she told me that Chris was … they got in a lift to go up to marriage counselling and he had grabbed her by the throat and shook her and just said, 'I'm only doing this once and if it doesn't work I'm getting rid of you'.
Q. So you've just told us there that there was a day when you saw bruises on her throat?
A. Yes.
Q. Where were you when you saw the bruises on her throat?
A. She was changing nappies in the change room and she came out of there and I was standing at the door looking … supervising children outside from the doorway and when I looked at her I said, 'What happened to your throat?'
Q. And when you said, 'What happened to your throat?' What did she say?
A. She said that Chris was when they went to counselling, got in the lift and Chris had gripped her throat and shook her a little and said, you know, that 'if this doesn't work, I'm getting rid of you. I'm only doing it once.'
Q. Sorry, Ms Leary?
A. She even sort of not laughed, but seemed to, you know, make out it was only like pretending to. She didn't think he was serious."
It is not apparently disputed that the marriage counselling appointment was on Friday 8 January 1982.
Ms Leary said that she typically started work at 10am and finished at 2pm. However, she also said that, "one day when I came into work [Lynette Dawson] was already there and she had bruises on her throat". Ms Leary said that she thought she observed the bruises between 10am and lunchtime:
"Q. … On the day that you say this incident occurred with Lynette saying, or the incident with the bruising, what time of the day do you say that this occurred?
A. It was I think before lunch; between coming to work and before lunch. "
The marriage guidance counselling session was in Lynette Dawson's lunch hour. The bruising that Ms Leary says she observed would therefore have had to develop somewhere in the space of not more than two hours at most. I consider this to be unlikely. Moreover, the fact that Lynette Dawson, as described by Ms Leary, did not appear to think Mr Dawson was serious, accords with the perception of other witnesses that Lynette Dawson returned from the session looking happy and holding hands with her husband. That attitude was also consistent, as elsewhere discussed, with the observations and recollections of Phillip Day and Mrs Simms, following their respective conversations with Lynette Dawson that same night.
Ms Leary was indeed challenged about whether it was even she who asked Lynette Dawson about the bruising, having regard to the contents of her 9 December 2000 statement:
"Q. Do you remember telling or preparing a statement in this matter, Mrs Leary, for the police?
A. Yes.
Q. In that statement do you remember saying that another worker, Anna Grantham, asked Lyn as to how she got the bruising?
A. Well, we worked together at the time, we were working together, so Anna might have said something about it as well."
Ms Leary agreed that paragraph 7 of her statement said this:
"I saw Lyn at the centre and I noticed that she had faint bruising on one side of her neck. Another worker, Anna Grantham, asked Lyn as to how she got the bruising and she told us that when she went to marriage counselling they had to go up in a lift."
Ms Leary also gave evidence of a chance meeting with Mr Dawson at the Warriewood shops some months after Lynette Dawson disappeared:
"Q. I'll stop you there, Mrs Leary. So you said there was a time in the shopping centre where you saw Chris with the young girl and the two daughters?
A. Yes. I was walking through the shopping centre with Anna Grantham at that time and we stopped and said 'hello' to them, and he said he'd had a letter from Lyn and she was in Queensland and he didn't know when she was coming back.
Q. Did he say anything else about the letter?
A. No.
Q. Did Mr Dawson ever ask you whether you knew anything about where Lyn was?
A. No.
Q. This time you saw him in the shopping centre and he talked about the letter, how long after Lyn's disappearance was that?
A. Oh, I think it was a couple of months."
Ms Leary appears in this evidence to describe a meeting with a group that included JC. She said this:
"Q. You told us about an occasion where you say that he was with this young schoolgirl, or he was with a school girl, I think that's what you said this morning, isn't it, when you saw them in the shopping centre?
A. Yes, yes.
Q. You characterised her as a schoolgirl. Now, when did you learn that he was in a relationship with a former student?
A. When I saw them in the shopping centre she was in a schoolgirl uniform.
Q. Are you sure about that, Mrs Leary?
A. Well, I couldn't describe it to you, but I thought it was a uniform."
If this meeting occurred some three months after Lynette Dawson's disappearance, it is obvious that the "schoolgirl" Ms Leary speaks of would not have been JC, she having left school the previous year.
Ms Leary spoke to Hedley Thomas. She agreed that she told him that she was "actually the last person to see Lynette Dawson alive".
Ms Leary agreed in cross-examination that she was "influenced about what had been said by others in this matter":
"Q. What did you mean when you agreed that you had been influenced by others in this matter?
A. Well, people who knew Lyn well and knew myself and Anna, we discussed it between us at times. Not, you know, talk about it all the time."
The Crown has emphasised that there is a reference to the incident in the lift described by Ms Leary that appears in the interview with Mr Dawson on 15 January 1991:
"Q121. Do you recall ah, prior to you meeting with the guidance counsellor um, apparently the building that you that you went to see him in, that you travelled up to his floor in a lift. Is that correct? Do you recall that?
A. Yeah
Q122. Do you recall, when you and Lyn were in the lift together that you grabbed her around the neck and ah, said, 'If this doesn't work I'll get rid of you?
A. No, Not at all.
Q123. These, Chris, these are questions that I have to put to you and I'm not saying that they're right. I'm asking you for your, your reaction.
A. I strongly dispute that because that, that sort of visit, that particular day was starting with the hope of saving something which after thirteen years was very much floundering."
The Crown refers to this as demonstrating that Ms Leary must have made the same allegation to the police in the course of the 1990 investigation. That appears to be an available inference.
However, I am unable to accept that the version given by Ms Leary of the incident in the lift is reliable. First, the timing of the visit to the marriage counsellor does not fit with Ms Leary's recollection that the incident was somewhere between 10am and lunchtime. Secondly, but in a related sense, even if the incident could notionally be placed at 2pm, the likelihood that bruising would have developed in such a short space of time is small. Thirdly, Ms Leary agrees that she has been influenced by the accounts given by others. Fourthly, Ms Leary was also spoken to by Hedley Thomas, a fact that carries a risk that she has been influenced by her dealings with him. Fifthly, the happy demeanour described by others of Lynette Dawson returning from marriage counselling holding her husband's hand is fundamentally inconsistent with her having been physically assaulted in a violent way and verbally threatened as well. Finally, and hypothetically having regard to my view about Ms Leary's evidence, if Lynette Dawson did not herself appear to consider what is said to have occurred as serious, it is a dangerous step to move to a conclusion that the incident, if it occurred, tells me anything useful about Mr Dawson in any event.
In the circumstances, I am unable to have any confidence in the suggestion that the incident as described by Ms Leary ever occurred.
[55]
Julie Andrew
Ms Andrew was a neighbour of the Dawsons in Bayview. She moved there in 1979. Her property adjoined 2 Gilwinga Drive. Ms Andrew became friends with Lynette Dawson and would catch up with her for a cup of tea once or twice a week.
Although some evidence suggests that the actual date was October 1981, Ms Andrew gave evidence of an incident she recalled from December that year that occurred in the vicinity of a trampoline situated on the Dawsons' property:
"Q. What did you hear?
A. I heard wailing. A loud crying. Wailing.
Q. What year was that? So 1979 you built the house, when did you last see Lynette Dawson?
A. That Day. That was December 81.
Q. You heard the wailing and what did you do when you heard the wailing?
A. I picked Erin up and started walking towards the direction of the crying. I knew it was Lyn. I kept walking until I got to the bottom of my pool area where I could see Lyn …
Q. And …
A. … and Chris.
Q. I didn't mean to cut you off. I'm sorry. You saw Lyn?
A. And Chris.
Q. And Chris. What was Lyn doing?
A. Lyn was backed up against the trampoline by Chris.
Q. What was he doing?
A. He was towering over her and he had at least one hand on her shoulder. It was only later when [YD] toddled out and Lyn picked her up, and Chris was over her with his hands on her shoulders and he was a huge man towering over her and screaming at her and she was crying.
Q. Could you hear anything that Chris Dawson was saying at that time?
A. Most of what he was screaming I couldn't, I couldn't work out what he was saying. It was only odd words that I could make out.
Q. Can I ask you to focus then on Lynette Dawson. Was there anything that you could hear her say apart from wailing, I'm talking about words?
A. I began to move a little closer. I was really frightened for her. She said something like, 'What are you doing to us Chris' or 'What is this you're doing to us Chris', something like that. And then I mean the whole thing was literally only a number of minutes and then he was roaring at her but again I couldn't hear. I couldn't work out what he was yelling.
Q. When you said that the whole thing only lasted a couple of minutes, what was it that brought that which you've just described to an end?
A. I think he got to the end of his rant, his screaming match and he's shaking her and she was bending over backwards and he's over the top of her, and then he sort of just let go and walked back into the house.
Q. When he walked back into the house was there anything else that you heard either of them say?
A. Yeah.
Q. Who did you hear speak?
A. Lyn.
Q. What did she say?
A. She said either 'god' or 'gosh, what's daddy doing to us'."
Shortly thereafter, Ms Andrew visited Lynette Dawson at her house. She related what occurred:
"Q. When you got there what did you see?
A. She was putting on a brave front. She put the kettle on and made a cup of tea.
Q. Were there any questions asked by you or her?
A. Yeah. I just said, 'I saw you crying. I heard you. What's going on?'
Q. Did she answer that question?
A. She said yes, she was upset because [JC's] moved into the house. It was permanent.
Q. Can I just stop you there. That name '[JC]', did you know who she was referring to?
A. I did.
Q. Who was that?
A. She was their babysitter.
Q. When did you first see that babysitter [JC]?
A. Probably late in, in 1980 maybe. I'd heard her name. I knew that she was somebody that they were sort of bringing into their family to babysit as well as to help her out. She seemed like a vulnerable teenager.
Q. That statement by Lynette Dawson about '[JC] coming to live with us', I may not have restated your words exactly, did you reply?
A. Yes.
Q. What did you say?
A. I said, 'You can't. You can't let her live here. This is your house. You can't have her move in'."
Ms Andrew continued:
"Q. On that topic do you remember, firstly, the exact words that were used by Lynette Dawson?
A. No.
Q. Then are you able to tell the Court the substance or gist of what it is she said about [JC]?
A. Just that she was, she was moving in permanently and, and Chris was infatuated with her and she, she was … Lyn was worried about her moving in.
Q. What did you say to Lynette?
A. I said, 'You can't, you can't have her in here. You've got to get rid of her'.
Q. What else did you say, if anything?
A. Well, when I started to bring that up Lyn became defensive and sort of tried to shut it down and I just, I had to shake her up. I was not a woman prone to swearing but I, I said, 'Lyn, you can't have her move in here. He's fucking the babysitter'. They were my exact words.
Q. What was your basis for making that allegation or assertion?
A. It was from a build-up of things that was happening that Lyn had told me about of, of coming home from work early with a migraine and finding them in her bed and then him talking his way out of it. She told me that and I kept thinking, I said, 'What, what, how can you talk your way out of that?' And she said, 'Well, no, I'm sure everything is okay. She just didn't feel well and he was looking after her'."
Ms Andrew did not see Lynette Dawson after this. Nor did she have any contact with Mr Dawson, whether asking whether she knew where Lynette Dawson may be or otherwise.
Ms Andrew said that during the conversation after the trampoline incident, Lynette Dawson said words to the effect that she had come home and found Mr Dawson in bed with JC.
Ms Andrew acknowledged that it was her belief that Mr Dawson had murdered his wife. The cross-examination of Ms Andrew made it plain that she had a very close involvement with Hedley Thomas and participated in some events associated with the podcast. She agreed that she was an advocate for Lynette Dawson. She did not agree that it was important to be careful about what she said about Mr Dawson. She said, "I don't think he's owed it or deserves it". I then asked her about that:
"Q. Just on that, while Ms David is organising things. From that answer do I understand that you do not accept the existence of the possibility that Mr Dawson might have had nothing to do with the disappearance of Lynette Dawson?
A. I don't accept that he didn't have anything to do …
Q. You don't accept that as a possibility?
A. No."
The cross-examination of Ms Andrew, by reference to her audio-recorded conversations with Hedley Thomas, led me to ask more questions, to which Ms David predictably did not object:
"Q. What would you say to the proposition that your answer to a question I asked you earlier, whether or not you were prepared to accept the existence of the possibility that Mr Dawson had nothing to do with the disappearance of Lynette Dawson, as [sic, is] a response that suggests that you do hold a prejudice against him?
A. I think the fact that I can put prejudice aside in most instances, if not all … not all instances. I think in this case I've lived with such horrific thoughts and memories and regrets and guilt for so long, and after being part of the podcast and hearing such a wide range of views and having so much more to contend with and reflect on that they are almost mutually exclusive. While I see myself as a person who indeed gives people the benefit of the doubt and believes in the rule of law, I do believe Chris Dawson murdered his wife, so I'd be lying to you if I said otherwise."
Ms Andrew was asked why, having formed the view all those years ago that something bad had happened, she did not report it to the police:
"A. Look, 40 years ago it was a very different time for, for, for women. I was lacking in experience, in confidence. You know, women were disenfranchised. I didn't have any experience with family breakdown or domestic violence or the police for that matter. I, I, I simply waited. I waited for someone to knock at my door. I waited for someone to say, well she's gone, where is she? Why, why didn't someone come and ask me? No one asked me and I, as I say to my great regret and shame I, I didn't do anything about it."
In one sense, it is difficult to imagine a response from Ms Andrew more favourable to Mr Dawson than Ms Andrew's concession that she thought Mr Dawson killed his wife. That admission, together with the evidence establishing that Ms Andrew was quite heavily and regularly involved with Hedley Thomas in his promotion of the podcast, is relied upon by Mr Dawson to suggest that none of Ms Andrew's evidence should be accepted as either credible or reliable. Conversely, the unselfconscious admission of prejudgment is so significant that it arguably assists Ms Andrew's truthfulness. In that respect, having observed Ms Andrew give evidence, I am in no doubt that she well understood and appreciated the forensic significance of the proposition that her evidence was suspect because she had an agenda to fulfil and had already made up her mind about the outcome of a trial in which she was a witness.
In my opinion, Ms Andrew's evidence about the trampoline incident and her subsequent conversation with Lynette Dawson about it is entirely believable. It remains to be seen what role that incident plays in a circumstantial case in which the Crown relies in part upon Mr Dawson's behaviour towards, and the treatment of, his wife, particularly in the weeks preceding her disappearance. However, despite Ms David's thorough and comprehensive attack upon her, I believe that Ms Andrew's evidence concerning what she saw and heard of the trampoline incident is true. I reject Mr Dawson's challenge to her evidence upon the basis that it is either untruthful or unreliable.
[56]
Patricia Jenkins
Ms Jenkins is Lynette Dawson's eldest sibling. She was asked about a conversation she had with Lynette Dawson just before Christmas 1981:
"Q. Could you slow down, please, Mrs Jenkins, just so it can be taken down, what you're saying. Continue.
A. She went outside for an hour for Chris to pick her up as arranged and by 6 o'clock when he hadn't come Lyn said she rang Chris' brother Paul to see if Paul knew where Chris was and Paul said … Lyn said that Paul said that he didn't know, so Lyn said she caught a taxi home and when she got home she found a note on the bed.
Q. Do you remember what she told you the note said?
A. She only told me that it said, 'Don't paint too dark a picture of me to the girls.' But all his clothes were gone. Even his pillow had gone.
Q. Could you just wait for the next question, please?
A. Yes.
Q. What else did your sister say to you … what did she say after she told you what was in the note?
A. She said from the note she didn't know whether Chris was coming home again or not.
Q. What else did she say about the fact that Chris had left?
A. Oh, well, she said she was very upset about it. She had the two little girls to look after. I think it was a question of not having very much money, not being able to drive, not having a car, and she thought … she was thinking long term 'if I can look after the children, how am I going to manage.'
Q. What if anything did she say to you about Chris' possessions that had been in the house the last time she was there?
A. She only said that all his clothes had gone and his pillow had gone.
Q. What else can you tell the Court about that conversation the words said by your sister to you and what you said to your sister Lynette?
A. She said to me that when she put the girls … her children to bed that night, she told them that their father had to go on a short holiday and she gave them both a kiss and said it was from him."
Ms Jenkins said that her sister declined an offer to stay with her over Christmas, saying that she wanted to be there "in case Chrissy came home".
Ms Jenkins next spoke to her sister on New Year's Day:
"Q. Mrs Jenkins, do you remember any of the exact words or phrases that your sister Lynette used when you and she spoke on New Year's Day 1982?
A. Yes. My apologies for rambling. She said that Chris had gone on a yachting party and she said that she had asked him if she and the girls could go with him and he said 'no'. And then she said, well, they had such a sad Christmas, could he drive them down to the park and they could sit and watch the boats and he said 'no'.
Q. Based on what your sister Lynette had said to you in that conversation on New Year's Day, where did you understand that Chris Dawson was living?
A. I think he was living back at their home in 2 Gilwinga Drive.
Q. Was anything said by your sister about who Chris was going on the yachting party with?
A. No, nothing was said about that."
Ms Jenkins was asked about what she thought might have happened to her sister:
"Q. Do you agree that the pressure or that you agree you have told the police that the pressure that Lynette was under may have caused her to leave?
A. It was a possibility because we didn't know what had happened to her.
Q. Did you also agree that you told police that you considered another possibility was that she may have suffered some kind of a mental breakdown?
A. Without knowing what had happened to her anything is a possibility.
Q. Do you agree, though, that you said that to the police when they interviewed you?
A. Yes, I said it was a possibility. The distress she'd been under and the way she'd been treated that we had heard and with Chris leaving, had no money, of course it was a possibility, but we had no idea.
Q. Do you also agree that you considered … that you told the police that you considered she may have left voluntarily because Christopher Dawson drove her away?
A. That was a possibility and I think I said something after that didn't I? Can I say what I think I said?
HIS HONOUR: Yes.
WITNESS: I believe I said, 'or something more sinister could have happened'. That's my recollection of what I said. With all due respect, you have no idea what it's like when somebody you love has dropped out of your life."
Ms Jenkins related part of her last conversation with her sister:
"Q. Your sister, do you agree, that Lynette really enjoyed shopping?
A. She enjoyed shopping. Not expensive shopping. Little nick knacks for the house. Something for the children. And in my last conversation when she was over at mum and dad's, one of the last things she said was that she'd been shopping with mum the day before and she'd seen this really nice yellow shirt and she said, 'Oh, wouldn't that look nice on Chrissy'. And then she said, 'No, I mustn't'."
When asked about whether Mr Dawson ever criticised his wife, Ms Jenkins said that Lynette Dawson told her that either Mr Dawson or his brother Paul would constantly criticise her about the size of her legs "and that sort of thing".
[57]
Gregory Simms
Mr Simms is Lynette Dawson's brother.
Although the Crown maintains that the actual date is 6 December 1981, Mr Simms recalled a family gathering at his parents' home in Clovelly in September or October that year. He recalled Mr Dawson referring to his daughters, saying "Look at my two darling little girls". Mrs Simms immediately asked Mr Dawson, "What about your darling big girl out on the veranda?" Mr Simms said Mr Dawson replied, "She can get in the bloody kitchen where she belongs". Mr Simms was aware that at that time, JC was living at 2 Gilwinga Drive. Mr Simms later said that he thought the comment was made "with venom". Mr Dawson challenged that recollection as a misinterpretation.
Mr Simms also referred to Christmas 1981. He confirmed that Lynette Dawson told him that Mr Dawson had gone away and had left her a note saying, "Don't paint too bad a picture of me to the girls". This was the occasion when Lynette Dawson was invited to stay with her brother at Aberdeen but declined the offer, preferring to remain in her home in case Mr Dawson returned. Mr Simms never saw his sister again after that.
Mr Simms recalled an occasion when he was at his parents' house at Clovelly. Mr Dawson arrived in his car. He delivered Lynette Dawson's belongings to the house in plastic garbage bags. Mr Simms' mother opened the door and Mr Dawson said, "I have some of Lyn's stuff". Mr Simms looked in the bags at a later date. He found a Sales Inspection Report and Selling Agency Agreement relating to 2 Gilwinga Drive inside the pocket of Lynette Dawson's dressing gown. It had been signed by Mr Dawson but not by his sister.
Mr Simms said that when he and his wife met with JC in 1990, the topic of Lynette Dawson's disappearance did not come up in conversation.
Mr Simms agreed that he observed his sister Lynette Dawson to be under a lot of pressure at the end of 1981. He agreed that he was aware that Lynette Dawson was very stressed about the state of her relationship. He considered Lynette Dawson to have been very much in love with her husband and that she loved him with "all her heart and soul".
Mr Simms agreed that he participated in what was described as a subscriber event, organised by Hedley Thomas in relation to his podcast. He agreed that it was an open forum in which general matters relating to the disappearance of his sister were discussed. Mr Simms agreed with the suggestion that it was his view that Mr Dawson was guilty of killing his wife. However, Mr Simms denied that his views had been, or were, tainted or influenced by anything arising out of the podcast. Mr Simms agreed that he considered Mr Dawson to be the answer to his sister's disappearance, but he denied he would lie to achieve the outcome he hoped should occur.
I observed Mr Simms very closely in the witness box as he gave his evidence. Mr Simms presented as a quiet and gentle man. He was not easily ruffled. In the final analysis, his evidence of significance is limited to his recollections of Mr Dawson's venomous comments about Lynette Dawson and the occasion when Lynette Dawson's belongings were returned to her family home in Clovelly. Despite his involvement with Hedley Thomas and his podcast, Mr Simms' measured responses to all questions asked of him convince me that his evidence is truthful.
[58]
Merilyn Simms
Ms Simms is Gregory Simms' wife.
Ms Simms gave evidence that Lynette Dawson told her that Mr Dawson might become angry with her if she spent money using her bankcard: "he didn't like her using the bankcard and spending the money because then he would have to pay the bills".
Ms Simms gave evidence of her final conversation with Lynette Dawson:
"Q. When's the last time you saw Lynette Dawson?
A. The last time I recall seeing Lyn was at that birthday party in July.
Q. What was the last time you had any contact with her either by telephone or writing or some other means?
A. I phoned Lyn at the beginning of October 1981 to ask her if she would like her baby clothes back that she lent us for Craig and I said, 'We're packing up the house, I can pack them and get them back to you in case you're wanting to have more family'. And she said to me, 'I doubt that we'll be having anymore family'.
Q. What else did she say to you in that phone call?
A. She was upset. She said that Chris was very angry all the time. She said that he was evasive. She said that he wouldn't settle to a conversation. She said that their sexual relations had ceased and she couldn't understand that because they had always been very regular and active. She asked him if there was anybody else and he said no. She was just a very, very upset.
She also told me that communications had broken down, that she was very concerned that Chris wanted to move [JC] into the family home while she was doing her HSC because [JC] was undergoing or having some domestic problems in her own home life and that Chris wanted to provide a calmer environment for [JC] so she could complete her HSC. Lyn was not happy about this because she felt that they had problems they needed to sort out between them before they brought anyone else into the home."
I observe that Ms David took objection to further material of this nature being led from Ms Simms. In that context, the Crown made clear that it was to be relied upon as evidence of both the deteriorating relationship between Mr Dawson and his wife and the corresponding development of his obsession to be with JC.
Ms Simms gave evidence of a telephone conversation she recalled Mr Dawson having with her mother-in-law on about 1 September 1982. Ms Simms said that Mr Dawson was very agitated. Ms Simms was able to overhear him say to Mrs Simms, "You've taken the girls away, you've kept them away, you're taking them to see Lyn secretly, you know where she is". The phone was then handed to her:
"Q. And when the phone was handed to you, are you able to tell the Court the exact words he used? If not tell the Court the substance of what was said by him please?
A. He was very angry and agitated and he said that he wanted Lyn to come back he wanted to see her walk in the door and that he missed her."
Ms Simms has not spoken to Mr Dawson since then. However, she and others met with JC on the Central Coast in 1990. She gave evidence about that meeting:
"Q. What, if anything, was said by [JC] that you did not already know?
A. We were told about the way Chris used to taunt Lyn with singing songs and tease her and put her down. There was … it is a long time ago I'm having to recall. We were told that there was a lot of unhappiness in the marriage. We were told that Chris would mix Lyn a drink at night in the hope that she would go to sleep so that he could be with [JC]. She told us about that she was with Chris when he left Sydney before Christmas in 1981. I'm sorry, my mind's gone for the moment.
Q. What, if anything, did [JC] say to you or others in your earshot about anything that Chris Dawson had said regarding Lyn and what his plans may have been?
A. His plans. Could you explain what you mean by his plans?
Q. Not without putting the answer in your mouth I'm afraid?
A. Okay.
Q. So what, if anything, did she say about things that Chris Dawson had said about Lynette?
A. Well, he wanted to end the marriage, he wanted to get rid of her.
Q. Beyond that?
A. He wanted to move to Queensland, wanted to sell the house and move to Queensland.
Q. What, if anything, was said about how he was going to get rid of her?
A. No."
Alike with her husband, Ms Simms was quiet and measured. She was not cross-examined to the point where, in my view, any of her evidence became doubtful. I consider that Ms Simms' evidence can be accepted without qualification, especially her evidence that informed the nature of the relationship between Mr Dawson and his wife.
[59]
Coral Clarke
The evidence of Ms Clarke was limited to one paragraph of a statement made by her for the police in December 2011. She did not give evidence in person. The single paragraph is in these terms:
"7. Chris and Lyn had two daughters. Before Lyn went missing, she came around this particular day and was upset and crying because Chris was calling her 'fat and ugly bitch', simply because she couldn't lose the baby weight she was carrying from her youngest child. Lyn would idolise her daughters. She worked in a pre-school. There would be no way that she would have ever left her children. Lyn had a lovely personality; she was an ordinary sort of girl, just nice. Lyn would get lift from Chris or Paul to be taken to work, because she never had a driver's license. Chris and Paul would share the driving to go to work."
The events to which Ms Clarke refers post-date the birth of the Dawsons' second daughter in July 1979. No other indication of the time when Mr Dawson is said to have made the comment about Lynette Dawson is given. The evidence is also silent about who Coral Clarke is.
The only part of this paragraph upon which the Crown relied are the words "fat and ugly bitch". Ms Clarke's opinion that Lynette Dawson would never have left her children is inadmissible.
[60]
KF
KF went to Cromer High School. She left there part way through Year 10 in 1980. Sometime in that year she saw Lynette Dawson sitting in what she recognised to be Mr Dawson's car, parked at the school. Two little girls were in the back. She approached the car and said hello. KF's evidence continued:
"Q. And when you said that, what were you looking at?
A. Her face.
Q. And what did you see when you were looking at her face?
A. She was rubbing her eyes.
Q. And when you looked at her eyes, what did you notice, if anything?
A. A black eye.
Q. Which one?
A. I can't be sure which one now, I don't know, maybe the one closest to the window (indicated).
Q. Could you see her hands?
A. On her face, yeah, rubbing her eye, yeah.
Q. After you said 'hello' to her, what did she do?
A. Said 'hello' back, commented that it was a hot day.
Q. And when she did that and she made that comment, what could you see on her face, if anything?
A. She put glasses on, but I could still see the black eye."
KF rejected suggestions put to her in cross-examination that she never saw Lynette Dawson with a black eye. KF did not suggest that Lynette Dawson told her how she came to have a black eye.
[61]
BM
BM was a student at Cromer High School and became a babysitter for the Dawsons when she was still at school. She did her Higher School Certificate in 1980. She babysat for the Dawsons starting in 1978. JC replaced her as the Dawsons' babysitter. She was asked about her observations of Mr Dawson and Lynette Dawson:
"Q. What observations did you make of the interaction between Chris Dawson and Lynette Dawson?
A. I believed at the beginning when I first met them that they had a very good relationship and that was assured to me by Chris Dawson because of my family relationships, but over time and seeing more things happen in the house, I became very disillusioned with what he had been telling me."
BM gave evidence of a series of incidents that she observed while working for the Dawsons. For example, she spoke of one incident that could have been in 1980:
"Q. And what happened in the kitchen between Chris and Lynette Dawson that you saw and/or heard?
A. Okay. I was off in one of the bedrooms either with the girls or studying and Chris went into the kitchen to get a drink and I had decided I think that I wanted one too or something. I can't remember exactly why I was going into the kitchen. But I went to go into the kitchen and Chris was there. Lynette was standing at the sink doing some washing up. Chris reached behind her to get a cup out of … a glass out of the cupboard and he looked at it and it was … he said something about it was dirty … and he basically got a tea towel and I thought was he just going to clean the glass but he actually flicked it across Lynette's back.
Q. What reaction did she make to that?
A. She just made a sound. Like a pain. Like a gasping of pain. Other than that she didn't move. She just kept washing up but I could see her flinch.
Q. When she flinched where was she standing?
A. At the sink.
Q. What did you do?
A. Well, Chris stormed off so I actually walked into the kitchen and, and picked up the glass because it was left on the side and went to hand it to Lyn and I kind of put my arm over her shoulder and realised that she was crying, so. I didn't know as a 16, 17 year old how to comfort her."
BM was then asked about Mr Dawson's shirts:
"Q. Was the state of the ironed shirts a topic that ever came up within your earshot between Chris Dawson and Lynette Dawson?
A. There was one time when I was in the house and they were getting ready to go out somewhere, and he went to pick up a piece of clothing and something wasn't perfectly ironed and he basically just grabbed a whole heap of clothes and threw them on the bed and told her to do them again. It was … that that was … and she didn't flinch. It was just like par for the course.
Q. When did that happen?
A. That was when I was in year 12. That was after the kitchen incident I believe, from memory."
BM gave the following evidence about a third incident she said she saw:
"Q. Whereabouts were they?
A. They were near the girls' bedroom door walking towards their door.
Q. In the moments that followed that, what did you see?
A. I saw Chris Dawson grabbing Lynette by her … the top of her arm and basically swinging her into the bedroom in an angry, forceful act.
Q. What, if any, reaction was there by Lynette Dawson to that?
A. Okay. Lynette … Lynette was almost like a rag doll because he was a lot bigger. And as … as he grabbed her and swung her, she actually collected the door frame with her shoulder and possibly her head, I'm not sure, and then she kind of (indicated) slumped forward. But he still had hold of her arm."
BM was challenged as to her recollection of all of these incidents. That challenge included a suggestion that she had been very closely aligned with Hedley Thomas and that her evidence was to be treated with circumspection for that reason alone. For example, concerning the last incident:
"Q. Just let me go back. You are suggesting that Mr Dawson has engaged in violent behaviour towards Lynette Dawson, haven't you?
A. Yes.
Q. That is a very serious matter, isn't it?
A. Yes, and it was to me emotionally as well.
…
Q. I'm suggesting to you that you have conjured this incident up in your own mind and it is not true?
A. That's incorrect. I know what I saw.
…
Q. You share with Mr Hedley Thomas, don't you, the belief that justice will be served by Mr Dawson being prosecuted?
A. I believe … I have my own beliefs about what may or may not have occurred. But I do believe we do need to know what happened to Lyn.
Q. Your version of needing to know means get Christopher Dawson charged, isn't it?
A. No. Finding the truth is what I would like.
Q. Your version of the truth is that Christopher Dawson has killed his wife, isn't it?
A. I believe Lyn would never have left those children of her own volition."
BM disagreed with the suggestion that what she saw on this occasion was either encouraging or affectionate.
BM was cross-examined by reference to a series of recorded interactions with Hedley Thomas. It is apparent that she became closely involved in his examination of the subject matter of the podcast. References in the course of her conversations with Hedley Thomas, albeit apparently facetious and light-hearted, to actors who may play the roles of relevant individuals in a cinematic adaptation or dramatization of his podcast, and hence in these proceedings, did not serve to fill me with an overwhelming impression of objectivity or confidence in BM's evidence.
That is not to say that I do not accept that she saw incidents basically in the nature of those described by her. My impression, however, is that the incidents as related by BM in 2022 may have acquired a degree of malevolent or sinister significance that they did not convey to her when first observed. To the extent that the Crown wishes to rely upon BM's recollection and current description of the things she said she saw, some allowance needs to be made for this. It is important not to let what on one view may have been unremarkable domestic events achieve an assumed and possibly unwarranted importance that is arguably generated by matters that have come to light only more recently.
Having said as much, the Crown concedes that none of these three incidents is significant in itself. The Crown does not suggest that if Mr Dawson flicked his wife with a tea towel in anger or pushed her into a door frame or dumped his clothes for re-ironing, it makes it any more likely that he murdered his wife. The Crown contends that these incidents demonstrate Mr Dawson's obvious animosity towards Lynette Dawson. The cogency of the evidence is also said to be enhanced by reference to other evidence, such as the evidence of Julie Andrew.
[62]
Judith Solomon
Judith Solomon met Lynette Simms (as she then was) while working for the Bank of New South Wales at Charing Cross in about 1965. Some years later, Ms Solomon bumped into Lynette Dawson at Warringah Mall. She was with Mr Dawson. Lynette Dawson introduced him as her "husband". Ms Solomon gave evidence of the meeting as follows:
"Q. How did you come to meet her at Warringah Mall on that occasion?
A. I was just walking … I was down there shopping and I was walking towards her and I didn't even recognise her. She stopped and she recognised me.
Q. When you looked at her what did you notice about her facial appearance?
A. I didn't know who it was at first. She had sunglasses on and she'd changed. Her hair was cut. I used to know her with long hair.
Q. Who spoke first?
A. She did.
Q. What did she say?
A. 'Hello Judy'.
Q. And what did you reply, if anything?
A. I said, 'I can't remember. Who are you?'
Q. What happened then?
A. She took her sunglasses off. She showed me who she was.
Q. What did she say?
A. She said … I said, 'Oh, now I remember you' but I got a shock what I saw.
Q. Did she say anything about who she was?
A. Yes, Lyn Simms.
Q. What did she say?
A. 'I'm Lyn Simms. Do you remember me?' because I didn't know her married name.
Q. When she said that was she in the company of anyone else?
A. Yes.
Q. What did she say about other person, if anything?
A. She introduced me to him as 'my husband'.
Q. Can you do your best to tell us either the exact words she used or the substance of what she said?
A. No. Just that she introduced me.
Q. And those sunglasses that you mentioned, what happened to them?
A. She took them off.
Q. And when she took them off what could you see?
A. I could see a huge horrible black eye.
Q. As she was removing the sunglasses did you see anything else happen?
A. Yes.
Q. What did you see?
A. I saw her husband pull her arm and look at her.
Q. And was anything said by either the husband or …
A. No.
Q. … or the woman you knew as Lynette Simms?
A. No.
Q. Was there anything said by you about what you had seen on her around her eye?
A. Yes, I did. I said, because I tried to make it not so horrible to her, that I had a black eye once too and I told her about my black eye and we just laughed about it.
Q. What did you tell her?
A. I said that I ran into a door knob.
Q. And what did she tell you, if anything, about her black eye?
A. She ran into a doorway.
Q. How long did this encounter at Warringah Mall last for?
A. Oh, 5 minutes if that, but we talked, we changed phone numbers cause she wanted me to catch up.
Q. How did you exchange phone numbers?
A. She wrote it on a piece of paper for me.
Q. And how did you exchange your number with her?
A. I didn't. She got in touch with me.
Q. And what else, if anything, happened in your interaction with Lynette Simms before the two of you parted company?
A. We cuddled.
Q. Was anything said by either of you?
A. She did whisper something in my ear but I did not know what it was.
Q. And as you and she were parting was there anything that you heard anyone say?
A. He … I looked around. I was feeling pretty scared at that time. I felt uneasy. And I looked around and I saw him pull her arm and say, 'What did you do that for?' That was all."
Some weeks later, Ms Solomon visited Lynette Dawson at her Bayview home. Ms Solomon was not there for very long. She said that Lynette Dawson said to her, "I'd like you to go soon because my husband won't like it if you … if he comes home and there's someone here. He wouldn't be very happy".
Ms Solomon said she gave a statement to the police on 10 October 2018, after she heard that Lynette Dawson was missing. She had listened to the whole of the Teacher's Pet podcast and had found it to be disturbing. She agreed that Mr Dawson was painted in a very dark light. She agreed that people on the podcast were speaking unfavourably about him. She agreed that had an effect upon her but said that it still had to be proved that he did it. Having listened to the podcast, and casting her mind back to the encounter at Warringah Mall, Ms Solomon agreed that it caused her to think about Mr Dawson with a new suspicion.
Ms Solomon was cross-examined about her recollection in light of the podcast:
"Q. See, isn't it the case that your memory, Ms Solomon, has been so affected by the horrific portrayal of Christopher Dawson in the podcast that you are incapable of now remembering these incidents in a fair minded manner?
A. No, that is not true. I'll never forget that.
Q. I suggest that you have interpreted everything through the lens that everything Mr Dawson has done is sinister?
A. What I saw and what I remember, it was not good."
Ms Solomon said that she had a spiritual connection with Lynette Dawson. They went astral flying together over Waverley. Her evidence about that is worth recording:
"Q. Yes. Sorry, I didn't mean to interrupt you.
A. Okay. And she brought the subject up, I don't know how, but the subject came up and she said she used to do astral flying at night and I said, 'Well, I did too'. And she said … I said to her, 'I did this at Waverley, over Waverley at the beach'. And she said, 'So did I'. And she said, 'There was someone always below me'. And she said, 'I was up high'. And we just could not believe that this had happened because it's something quite different and a lot of people don't even know about it but this was a connection we had and so we can spoke about that a lot."
I have no personal experience of astral flying. No expert evidence about it was led in this trial. The precise relationship, if any, between Ms Solomon's avowal of her spiritual experiences and the acceptability or reliability of her evidence was not explored.
However, as with some others whose evidence was tendered in this trial, Ms Solomon did not say that Lynette Dawson told her that the black eye that she observed was caused by Mr Dawson. That is so notwithstanding their later meeting when Mr Dawson was not there. In the circumstances, I am unable to conclude that anything said by Ms Solomon provides a reliable foundation upon which to base any conclusions about the nature of the relationship between Mr Dawson and his wife.
[63]
Roslyn McLoughlin
Ms McLoughlin lived in Bayview in 1978 and knew the Dawsons. She played tennis with Lynette Dawson at a local tennis group. She gave evidence of what she saw and heard on the last day that she saw Lynette Dawson at tennis shortly before Christmas in 1981:
"Q. Could you do your best to tell the Court the exact words that she used, if not if you can't do that, then the substance of what she said to you?
A. She was … I was surprised. She was really wanting me to go back to her place for a coffee after tennis and was quite I guess I don't remember the exact words and she certainly asked me more than once and she was quite distressed but, being tennis week, I ended up saying, 'No, I can't do that because it's Christmas and I've got' you know, I had two young kids and I had things I had to do. But she was very adamant that she needed someone with her, and distressed.
Q. I beg your pardon?
A. And distressed, yeah, she was … she wasn't crying but she was begging me to go back.
Q. On that day when you spoke with her and during the tennis match or matches, what was Lynette Dawson wearing?
A. She certainly … I don't know what she had on the top but she had shorts on the bottom and that showed some bruising.
Q. Where?
A. She had a large probably grapefruit sized bruise on her thigh, and I don't know whether it was both upper arms or one, she had some bruises on her arms.
Q. Was anything said by either you or her about those bruises?
A. No. I certainly didn't ask her about them. Back in the '70s and '80s you didn't I mean, if she'd been a really close friend I might have asked her, but in those days you didn't discuss necessarily private family matters with people. It wasn't until I'd done Lifeline and a community welfare course in the later '80s and '90s that I then, when I saw the item, to come forward."
In cross-examination, Ms McLoughlin agreed that she did not know how Lynette Dawson acquired her bruises:
"Q. You don't know how Lynette Dawson sustained any of the bruising, do you?
A. No.
Q. You didn't ask her?
A. No.
Q. She didn't tell you?
A. No.
Q. And you have absolutely no idea whether it was caused through domestic violence or otherwise, do you?
A. Okay, no."
[64]
Robyn Warren
Ms Warren met Lynette Dawson in about 1975. Lynette Dawson was then living in Cromer. There came a time in about 1978 or 1979 when Ms Warren used to drive Lynette Dawson to play tennis at Roseville.
Ms Warren last spoke to Lynette Dawson sometime in December 1981. She next spoke to Mr Dawson about six weeks after that:
"Q. Where did you see him?
A. He called into our home to pick up a dinner that I had prepared for him. And he pulled up and I just put the dinner I had prepared for him on the floor of the passenger seat of his car.
Q. When you did that, could you see if there was anyone else in the car?
A. Yes, there was someone else in the car.
Q. Who was that?
A. I can't say a hundred per cent, it was his partner at the time. I didn't look into the face of … do I say JC? I didn't look into her face, I just saw the legs.
Q. You said that it was his partner. I'm asking you about what your understanding was back then.
A. Back then, I had received a phone call early in the teens of January, 12 January, something like that, and it was Christopher Dawson who said to me is Lynette at my house and I said, 'No, no, I haven't seen Lynette'. This was during Christmas holidays, we didn't see much of each other in the holidays because Christmas was coming up, it's a busy time so I hadn't seen Lynette. And I said, 'No I haven't seen Lynette. She's not here. I haven't seen her for weeks.'
Q. Come back to the person that you saw the legs of in the car. You said in your evidence a little while ago that it was his partner. What was the basis of saying that?
A. Because Lyn … Lyn had already gone, disappeared from my life, and there was just another young lady in the car. I … sorry, I presumed, and I should not presume, I presumed it was JC.
Q. You don't need to worry about using letters. What, if any, name was given to that woman by anyone …
A. Yes, [JC]."
Ms Warren said she first heard the name JC in late 1981. She heard it from Lynette Dawson:
"Q. Could you tell the Court, if you are able to, the exact words that Lynette Dawson used. If you can't tell the Court, the substance of what she said.
A. Lynette Dawson had said to me that she was concerned because Chris wanted to move the babysitter, [JC], into the house. And I had said … she was quite concerned. And I had said to her, 'You can't. You can't do that, Lyn. You and Chris need to talk. You need to talk.'
Q. When you said just then that she, Lynette, was concerned, what is it that she said that led you to the conclusion that she was concerned?
A. She was upset, and she said to me, 'What can I do? Christopher wants to move [JC] into the house.' Somewhere to stay … because I believe … Lyn believed that she didn't have a good family life at home.
Q. What is it that you heard that led you to the opinion that Lynette was upset?
A. I could see she was upset.
Q. I thought you said you were talking on the phone to her?
A. We always talked on the phone or in person. I saw her a lot.
Q. Yes.
A. In that instance.
Q. In that phone call, what was it that you heard that led you to the conclusion or opinion that she was upset?
A. It was face to face in my house when she said that.
Q. What is it that you saw that led you to the opinion that she was upset?
A. I could see it in her face that she was very upset.
Q. That name, [JC], the babysitter, was that the first time you'd heard that name mentioned or had it been mentioned before?
A. It had been mentioned before.
Q. How many times before?
A. Many, many. At least up to 10 times before.
Q. What was the substance of what Lynette said to you about [JC], the babysitter, on those earlier occasions?
A. Just that she was the babysitter for [XD] and [YD] and she was always available to babysit for them. They used to go out a lot and [JC] would come to the house and mind the children."
Ms Warren said that she received a telephone call from Mr Dawson in January 1982. She thought that this was around 12 or 14 January but agreed it could have been 9 January:
"Q. You mentioned before that you received a telephone call from Chris Dawson asking you about Lynette?
A. I did.
Q. What did he say to you?
A. He said … he got straight to the point. He said is Lyn at my house, is she with you? And I replied 'No, she's not with me. I haven't seen her for a number of weeks.' And he said she left the home this morning with a couple of bags, she was going to be returning some clothes to a shop at Chatswood, and I believe that was quite like Lyn to do that. And then he was going to be a lifeguard at the Northbridge Baths and then she was going to be catching a bus through from Chatswood to connect at the Northbridge Baths later on. And she never turned up." [Emphasis added]
It will be apparent from the last answer, which was not challenged, that if Ms Warren's reference to Mr Dawson saying "she left home this morning with a couple of bags" was a reference to the day he made the call, that call must have been made the same day that Lynette Dawson disappeared. However, it should be noted in this context that according to Mr Dawson, he had been phoned by Lynette Dawson at the Northbridge Baths only that afternoon, from outside Sydney, giving an explanation for her failure to attend the baths. This would make it unlikely that Mr Dawson would have been phoning Ms Warren on the same day to inquire if she had heard from his wife if she had explained that she might be away for a few days. Having said as much, I have rejected the proposition that Mr Dawson did receive a call from his wife at the Northbridge Baths as he has told the police.
Ms Warren agreed that Lynette Dawson had never said anything to her about Mr Dawson being violent to her. She never witnessed anything of that sort. Mr Dawson was to her observation always respectful and affectionate to his wife. Ms Warren never heard Mr Dawson insult his wife. In terms of her impression of Lynette Dawson's life with Mr Dawson, she agreed she would describe it as being a very happy life. Mr Dawson was an attentive father and husband. From what she could see, Mr Dawson loved his wife and she loved him.
Ms Warren agreed that on the day that Mr Dawson telephoned her about where his wife could be, he appeared really distressed. Despite considering herself to be one of Lynette Dawson's closest friends, Lynette Dawson did not mention to Robyn Warren that Mr Dawson had left the home just before Christmas.
[65]
Tendency evidence: a brief diversion
One of the strands in the cable that is the Crown's circumstantial case is that Mr Dawson bore significant animosity towards Lynette Dawson, a matter of which it contended I could be satisfied beyond reasonable doubt. The Crown gave notice of a considerable amount of evidence upon which it proposed to rely to establish that Mr Dawson had a tendency to have three overlapping states of mind, being an animosity towards his wife, contemplation of retaining a third party to kill her and a desire that JC be his wife and the mother of [sic, to] his children.
It is a matter of record that throughout the trial, Mr Dawson's legal representatives objected to the Crown leading large amounts of evidence upon the basis that it did not satisfy the test for admissibility as tendency evidence and that its probative value did not outweigh the danger of unfair prejudice to Mr Dawson. I dealt with the first of those matters during the course of the trial: see R v Dawson [2022] NSWSC 877. In the course of considering the application of s 101 of the Evidence Act 1995, I said this at [32]:
"[32] In a trial by judge alone, the danger of unfair prejudice of the type to which this section is directed falls away. The question of what use, if any, to which the admitted tendency evidence should be put, or the weight, if any, that it should be given, remain matters to be considered by me in due course. The reliability and credibility of the tendency evidence, or whether it suffers from the possibility of contamination, concoction or collusion are all matters that I will in due course be required to consider. This is made plain in the remarks of Johnson J in R v Droudis (No 13) [2016] NSWSC 1350 at [83]-[95]. The obligation imposed upon me as a judge sitting without a jury, to give reasons, serves a number of purposes, including 'a practical demonstration as to how the Court has guarded against "prejudicial effect" or "unfair prejudice"' which might have a stronger foundation in a trial by jury."
Another regular but related topic of discussion in the course of this trial was whether debate about the reception of evidence that might never qualify as tendency evidence was to some extent slightly sterile if the evidence could in any event relevantly inform some other issue in the proceedings. The most frequently considered issue in that respect was whether the putative tendency evidence might be relevant to whether Mr Dawson had a motive to kill his wife, particularly having regard to the deteriorating state of the marriage and Mr Dawson's corresponding enthusiasm for his relationship with JC.
It will be apparent that the evidence of witnesses deposing to their observations of the deteriorating relationship between Mr Dawson and Lynette Dawson is principally relied upon by the Crown to underscore the way in which it coincided with Mr Dawson's blossoming relationship with JC. That evidence arguably supports the Crown's contention that Mr Dawson was showing increasing animosity towards his wife and a corresponding desire that JC should replace her in that capacity. It also arguably supports a contention that Mr Dawson had a motive to kill her. However, it is important that I indicate clearly that I am not particularly attracted to the proposition that this undoubted state of affairs can legitimately or even helpfully be characterised in terms suggesting that it shows Mr Dawson had a tendency to have a particular state of mind. I should explain what I mean.
Tendency evidence is tendered to prove by inference that, because on a particular occasion a person acted in a particular way or had a particular state of mind, that person, on an occasion relevant to the proceeding, acted in that particular way or had that particular state of mind. In this case, the evidence that the Crown contends can be used for a tendency purpose includes direct evidence of the way Mr Dawson treated Lynette Dawson as well as evidence of observations of Lynette Dawson that possibly infer Mr Dawson treated her in a particular way.
In my view, the probative value of this evidence as tendency evidence, such as the evidence of Ms Grantham, Ms Leary, Ms Andrew, Ms Jenkins, Mr Simms, Ms Simms, BM, Ms Solomon, KF, Ms McLoughlin and Ms Warren, and putting aside for the purposes of argument my findings as to the reliability of some of it, is extremely limited. Its weight is so small that it does not satisfy me that Mr Dawson had the tendencies for which the Crown contends. It would also in my view be unfair to Mr Dawson to utilise evidence that suggests he told his mother-in-law that Lynette Dawson should get back into the bloody kitchen where she belongs, or that he flicked her with a tea towel or criticised her for the state of the glassware or her ironing, or that he sang hurtful and sarcastic songs about her, or even that he aggressively argued with her by the trampoline, somehow to reason that this conduct proves that he had a tendency that supports or enhances the strength of a conclusion that he killed his wife.
A lot of the evidence in this category related to observations of Lynette Dawson with bruises. The Crown argued that even though Lynette Dawson never revealed that Mr Dawson caused them, the fact that several witnesses in unrelated settings made similar observations was something that could, when taken together and not in a piecemeal fashion, support an inference to the criminal standard that Mr Dawson, in the circumstances of this case, must have been responsible for causing them. The Crown agreed in final submissions with my characterisation of the argument as follows:
"Anyway, I'll take your submission to be that an inference can arise satisfying the tribunal of fact beyond reasonable doubt that Mr Dawson had a particular tendency related to the bruising, to use a neutral expression, that can arise out of a series of witnesses whose evidence, taken alone, does not directly inculpate him, but when taken together as a series of circumstances in that domestic/marriage setting could give rise to an inference that he caused them, and that satisfaction achieves acceptance on the criminal standard."
I am unable to accept that contention. The evidence does not satisfy me that Mr Dawson caused any of the bruising said by various witnesses to have been observed on Lynette Dawson. In my view, speculation that Mr Dawson may have done so on a particular occasion remains speculation which is therefore easy to reject. Combining several similarly speculative propositions does not change that.
I am therefore of the view that none of the evidence tendered by the Crown to prove the existence of a tendency on the part of Mr Dawson to have a particular state of mind can be used for that purpose. It is hardly a secret that the Crown contends that the relationship between Mr Dawson and his wife was failing. Mr Dawson has said as much on several occasions in various settings. The evidence on which the Crown relies in this respect satisfies me that the marriage was in trouble. But the suggestion that the evidence that supports this also establishes that Mr Dawson had a tendency to have a particular state of mind that I might legitimately marshal in my deliberations is less than helpful.
[66]
Consideration
Having regard to this evidence, I am satisfied beyond reasonable doubt that by some time towards the end of 1981, if not in fact before this, Mr Dawson considered that his marriage to Lynette Dawson was in a state of incipient failure. I am similarly satisfied that the deterioration of the marriage was the direct and inevitable consequence of Mr Dawson's extramarital relationship with JC. To the extent that any other factors may have contributed to this, they are of no particular importance. Mr Dawson's treatment of his wife, to which the evidence of the witnesses most recently considered attests, was a function of that deteriorating state of affairs. I am, however, satisfied that Lynette Dawson did not share that view and remained hopeful until as late as 8 January 1982 that the marriage could be resurrected. Her demeanour upon return from marriage guidance counselling, and her conversations with her mother and with Phillip Day that evening, all bear witness to that fact.
I am also satisfied beyond reasonable doubt that some of the consequences flowing from the fact that Mr Dawson was in a developing sexual relationship with JC whilst still married to his wife are that his formerly stable relationship with his wife changed: Mr Dawson began to manifest previously absent or unusual signs of disaffection, frustration and anger. I am, however, not satisfied that Mr Dawson was also physically violent towards her.
I put to one side the fact that I consider the evidence of Anna Grantham and Annette Leary to be unreliable and that I cannot be satisfied that the events that they described occurred in fact. I also reiterate my concern that the incidents recalled by BM do not represent troublesome acts of violence committed by Mr Dawson against his wife. I have previously explained my reasons for this.
The most compelling basis for concluding that Mr Dawson had not during the course of the marriage been physically violent to his wife is that there is no evidence either of contemporaneous complaints of such violence by Lynette Dawson to her family, especially to her mother, but also her sister and brother, or of contemporaneous observations by the same members of her family of any signs of such physical violence. Furthermore, and perhaps most significantly, only Judith Solomon, KF and Roslyn McLoughlin give evidence of having observed Lynette Dawson with a black eye or other bruising. The evidence is otherwise somewhat curiously silent about recollections or descriptions of Lynette Dawson as the apparent victim of physical domestic abuse. That includes the graphic evidence of Julie Andrew of what she saw and heard occur between Mr Dawson and Lynette Dawson by the trampoline: even if the incident amounted to domestic violence, there was no suggestion that Lynette Dawson was physically injured. It would also in my view be extremely unlikely that Robyn Warren, Lynette Dawson's very close friend with whom she regularly played tennis and who agreed she had never heard Lynette Dawson complain that Mr Dawson had been physically violent to his wife, would not have seen the results, or discussed the fact, of Mr Dawson's violence if it had occurred.
My opinion about whether the Crown has proved beyond reasonable doubt that Mr Dawson murdered his wife is not therefore assisted by the evidence upon which the Crown relies to suggest that Mr Dawson had a particular tendency or tendencies or that he had at times been physically violent to Lynette Dawson. The evidence does not also enable me to make any findings or draw any conclusions about whether Mr Dawson engaged in non-physical domestic violence and I put it aside completely for present purposes.
[67]
Good character
Mr Dawson has relied upon evidence to establish that he is a person of good character. Subject to one matter, that evidence has not been challenged by the Crown.
I take the law to be that I am entitled to take evidence of Mr Dawson's good character into account in his favour on the question of whether the Crown has proved his guilt beyond reasonable doubt. The fact that Mr Dawson is a person of good character is relevant to the likelihood of his having committed the offence alleged. I may take Mr Dawson's good character into account by reasoning that it suggests that he is unlikely to have committed the offence charged.
In this trial, the issue of Mr Dawson's credibility has arisen in the limited sense that he has made exculpatory statements in his police interview in January 1991. I am able to use the fact that Mr Dawson is a person of good character to support his credibility in the sense that a person of good character is less likely to lie or give a false account of the events in answer to questions asked by the police. This does not mean that good character provides Mr Dawson with some kind of defence. It is only one of the many factors which I can take into account in determining whether I am satisfied beyond reasonable doubt of his guilt.
Mr Dawson has no criminal convictions. The only suggestion raised by the Crown that Mr Dawson may not be a person of good character is that he had a sexual involvement with a teenage student when he was her teacher. I am unable to accept that submission. In particular, the submission involves possibly two related assumptions. First, that Mr Dawson's relationship with JC was itself actually or potentially criminal in nature. That is not an issue that I have been asked to decide and it would be entirely unfair to Mr Dawson if I were to suggest that I had a view about it: I am not entitled to do so and I do not have a view about it. Secondly, that Mr Dawson's relationship with JC crossed the boundary of what might have been morally acceptable in 1980 or 1981. However, that is clearly a matter about which minds may differ. More fundamentally, I am unable to agree that moral transgressions, even accepting them to have occurred, can reliably, if ever, assist me in a consideration or understanding of Mr Dawson's liability on the charge that he faces.
Ms Warren's evidence, among other evidence, supported the proposition that Mr Dawson was a gentle, supportive and attentive husband and father. I should also note that Mr Dawson tendered a series of letters written by him to JC in February and March 1990. They had separated at that time and Family Court proceedings were looming. These letters were relied upon to support the fact that Mr Dawson is a person of good character. Submissions in aid of that contention based upon these letters were as follows:
"In his letters at exhibit 9 of the defence exhibits, the defence say that they are very important in understanding Christopher Dawson, and I would ask your Honour to consider those both for character but also from this perspective, because they speak of many things. There is an acrimonious break up. Christopher Dawson writes to [JC] a series of love letters, but also not just imploring her back against her will; talking about the good times that they had. Acknowledging his own wrongdoings, trying to encourage her with mostly in relation to the older girls, and then when he realises that she … when he forms the view after approximately … of about a month's worth of writing letters, when he forms the view that she does not want to participate, he writes to her and says:
'Well, look, I'm just going to let it go. I'll let you go. But if you ever want my support or help, you know where I am. There is a house full of love for you here and for you and [ZD], and if you need it or want it. Goodbye. I love you.'
But he also says in those letters, he refers to wanting to be friends. So notwithstanding … 'I thought we would remain friends,' he stated in one of the letters on 14 February 1990. So it's not a man who is your, you know, there is very much a middle path, we say, and a very measured approach by Christopher Dawson in, if I could say, the affairs of the heart. So notwithstanding, he is in a position where he bears some responsibility and obviously cares for [JC]. There's no doubt. I'm not standing here suggesting that he did not care, and ultimately they married, and I think that's something that's obviously … it cuts both ways in this trial. But we say, your Honour, that her coming back, there are a number of practical features, and that it was clearly not a decision that was made easily and as quickly as the Crown would contend for and that this is very particularly so when one considers some of the evidence surrounding that."
Accordingly, I accept the fact that Mr Dawson is a person of prior good character.
[68]
Inconsistent representations and actions
It is trite to observe that Mr Dawson did not give evidence in these proceedings. No inference of any sort adverse to him or otherwise arises from that fact. Mr Dawson is not required to prove or to disprove anything and he is entitled to remain silent.
However, there is a wealth of evidence from a wealth of sources about things that Mr Dawson has said or done in the four or more decades concerned with the events in this case. Mr Dawson has spoken to people who have given evidence of what he said. Mr Dawson has done things that people have seen and later described in evidence. Indeed, Mr Dawson participated in a lengthy interview with the police in January 1991 in which he gave a detailed response to questions concerning Lynette Dawson's disappearance.
Although it is critical at all times to bear in mind that Mr Dawson is not required to provide his version of what occurred, and that anything he has said over the years is not to be treated as a version favourably or unfavourably to be compared with the evidence in the Crown case, it is clear from what he has told the police and others, and by his plea, that Mr Dawson denies that he killed Lynette Dawson. Associated with that denial are a series of representations made, and things done, by Mr Dawson referable both to his assertion that she voluntarily left the family home on 9 January 1982 and to his avowed expectation or anticipation that she might possibly return. The Crown contends that a number of the things said and done by Mr Dawson over the years since Lynette Dawson disappeared are inconsistent with his asserted belief that she was alive or might possibly soon return. Put another way, the Crown contends that the only reasonable explanation for some of Mr Dawson's words and actions after 8 January 1982 is that he knew she was dead. The following matters are examples of this proposition.
Mr Dawson told several people that Lynette Dawson had telephoned him on a number of occasions and spoken in terms that left open the possibility that she may return. For instance, Mr Dawson told Phillip Day that his wife had gone but that she would be back in a few days. By no later than 11 January 1982, however, Mr Dawson had driven to South West Rocks to collect JC and immediately returned with her to instal her in the family home. It is, of course, not beyond the realms of common understanding and experience that Mr Dawson was so jealously intent on ensuring that he retrieved JC from her holiday with her classmates that the prospect of an unpleasant confrontation with his wife when she returned to discover that she had been supplanted by his teenage lover was the least of his worries: Lynette Dawson already well knew he was sleeping with JC. I take Mr Dawson to emphasise in this context that the Crown has plainly approbated his obsession and infatuation for JC and can hardly reprobate its possible influence upon his ability to assess all risks with a clear head or to be particularly troubled that his wife may be annoyed.
To similar effect is the asserted tension between an expectation that Lynette Dawson might return "at some time", as opposed to "in a few days" and the fact that JC was living in his home and sleeping in the former matrimonial bed. The Crown submits that such behaviour is wholly inconsistent with any understanding or belief that Lynette Dawson might possibly return to the home, particularly in a matter of days but also at any time thereafter.
JC gave evidence that Mr Dawson told her that she could, in effect, have her pick of Lynette Dawson's clothes. JC has identified herself in at least one photograph wearing clothing from Lynette Dawson's wardrobe, not long after she commenced to live at 2 Gilwinga Drive. The Crown made the same submission in this respect: by letting JC wear Lynette Dawson's clothes in Lynette Dawson's house, Mr Dawson was demonstrating by his actions that his wife was never going to return. Such actions were inconsistent with a belief or understanding that she was still alive.
Submissions on behalf of Mr Dawson about this emphasised that Mr Dawson may have played no active role in permitting JC to wear his wife's clothes. It was also suggested that he may have had no idea of whether clothes JC was wearing were hers or those of his wife. For example:
"HIS HONOUR: All I need is your response to the Crown proposition that Mr Dawson must have been certain Lynette Dawson wasn't coming back if he was prepared to permit [JC] to start wearing his wife's clothing.
DAVID: The defence response to that would be that there is nothing to suggest that it was necessarily done with his permission or, if I could say, control over the situation, or even an appreciation as to whose clothes they were. There's no evidence to suggest that.
HIS HONOUR: So if [JC] was wearing Lynette Dawson's clothes in February 1982, your proposition is that it's meaningless because one couldn't safely assume that Mr Dawson would have known they were Lynette Dawson's clothes?
DAVID: That's correct, your Honour, or he'd given permission or in what circumstances she came to be wearing the clothes. And we know that Lynette Dawson had a lot of clothes; whether the accused was familiar with everything that Lynette Dawson had in her wardrobe.
HIS HONOUR: I think the proposition though is that Lynette Dawson would be very familiar with what she had.
DAVID: Oh yes.
HIS HONOUR: And I may not be full of life's experiences, but it strikes me as a pretty risky thing to do if it occurred to have your new girlfriend, my words, nobody else's, wearing your departed wife's clothes if there was some prospect she might walk in the door and see that. That's the Crown proposition and I just wondered if there was a response to it, that's all.
DAVID: I think the response, perhaps in summary, is that there's no evidence that he permitted, in the sense of encouraged, permitted, instigated her wearing the clothes. There's no evidence that he appreciated that she was in fact wearing Lynette's clothes, because there's nothing to suggest that he knew whether the particular items that she had on that day were Lynette's clothes."
The matter was also discussed as follows:
"HIS HONOUR: Should I accept [JC's] evidence that she was wearing Lynette Dawson's clothes on her 18th birthday?
DAVID: The defence say that your Honour should reject it.
HIS HONOUR: Why?
DAVID: Because the accused has given an account in a telecommunications intercept that appears to be … there's nothing to corroborate it but we haven't given direct evidence on it, so I appreciate that.
HIS HONOUR: You're not obliged to.
DAVID: No, we're not. But the point that we would say about it is that the wearing of the clothes, even if she did, she has said it, but your Honour would not accept that that was something for which the accused could be held responsible for, or that it could reflect on the accused in any way because of the factors that I have pointed to in terms of there's nothing to say how that came to be, if it did come to be. And he may not have had the appreciation of whose clothes, what combination of clothes, et cetera, that she had."
It would be surprising to me if Mr Dawson did not know that JC came to wear Lynette Dawson's clothes at some time after she moved into the former matrimonial home. Mr Dawson actually said this to the police in 1991:
"Lyn had an excess of…clothes. She had you know, fifteen, she would have had probably about twenty pairs of pants in the cupboard and obviously five or so which had never been worn. That's why [JC] took great delight in going through her wardrobe and the reason why I packed up Lyn's and returned it to, to her mother was because of [JC's] horror of having anything to do with Lyn in the house."
Clearly enough, any alleged inconsistency between Mr Dawson's expectation that Lynette Dawson might soon return and the fact that JC was now wearing her clothes would be dependent upon a finding that Mr Dawson was aware that this was happening. My surprise is not sufficient to establish that Mr Dawson did know of it. However, on 12 September 2018, Mr Dawson spoke to his brother Gary in one of the legally intercepted telephone conversations about this. The conversation is obviously conducted in the light of the topic of JC wearing Lynette Dawson's clothes having been raised in the podcast:
"Gary: …[JC] was wearing, you know, Lyn's clothes and jewellery. And, I was saying like, 'We wouldn't even know what jewellery our wives have had.'
Dawson: Well - I mean, I doubt we had much of it. But, Gary, another point too, [JC] was probably about four sizes different to Lyn. So, for - for her to be wearing her clothes is a pretty bloody good effort."
Mr Dawson did not in that conversation say that he did not know that JC had been wearing Lynette Dawson's clothes, although the effect of what he said suggests that he did not. I should note, however, that I accept as truthful the evidence of JC that she was told by Mr Dawson, in effect, that she could wear her choice of Lynette Dawson's clothes. It follows from that finding that Mr Dawson knew that JC was wearing Lynette Dawson's clothes shortly after she came to live with him at Gilwinga Drive.
Somewhat later, on 31 October 1982, Mr Dawson took all of Lynette Dawson's possessions and personal effects in ten garbage bags to her mother's house. Gregory Simms was present at this time. Acknowledging that it was by then almost ten months since Lynette Dawson's disappearance, the delivery of these possessions is no longer relevantly inconsistent with an expectation that Lynette Dawson might return but is a tacit acceptance by Mr Dawson that she would not. Whereas Mr Dawson's earlier conduct was arguably inconsistent with him genuinely believing, and proclaiming the hope, that Lynette Dawson was alive and might suddenly return, her absence by the end of October 1982 was something to which even her family had by then almost become resigned.
I raise these apparent inconsistencies by way of reminding myself that an unambiguous conclusion does not always or necessarily follow from something that is allegedly otherwise inexplicable or difficult to explain. As I have already observed, circumstances sometimes, indeed often, point in different directions. For example, the Crown relies upon the fact that Lynette Dawson disappeared without taking her clothes or anything else to suggest she could not have left voluntarily. Mr Dawson embraces precisely the same facts to support a contention that it shows he did not plan her death by making it appear as though she packed her own bags. I remind myself of the need to be alert at all times to the availability of competing conclusions from the one set of facts.
[69]
LIES AS CONSCIOUSNESS OF GUILT
The Crown contends that Mr Dawson has told a series of lies that demonstrate or evince a consciousness of guilt on his part. Two things about that general submission must be noted. First, before a tribunal of fact can permissibly reason towards an inference of guilt said to arise from a lie by an accused person, the particular guilt of which the alleged lie is said to demonstrate a consciousness must be guilt of the offence charged. A non-specific or generalised assertion that a person who lies, or who appears to have a guilty conscience by reason of telling lies, is insufficient: see, for example, Meakin v R [2018] NSWCCA 288. In that case, the accused who fled from the scene of a fatal motor vehicle collision could not be said to have evinced by his flight a consciousness of guilt for the charge of murder if his flight were equally explicable by reference to some lesser charge such as manslaughter. As Macfarlan JA said at [111]:
"[111] Tenthly, the Crown relied upon the appellant's post-collision conduct. This conduct clearly revealed the appellant's consciousness that he had done something seriously wrong. However, in my view, the appellant's conduct was equally consistent with a concern about having struck a pedestrian with a vehicle that he was driving whilst heavily intoxicated, as with a consciousness of guilt of murder. As between those two possibilities, the conduct was neutral…".
In the present case, no legitimate inference can be drawn from anything found to be a lie told by Mr Dawson unless it demonstrates a consciousness on his part of guilt for the crime with which he has been charged.
Secondly, lies for relevant purposes may be constituted by an omission to mention something if a failure to refer to it gives a false or misleading impression of the true position: see, for example, R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455 at 709. A "representation" for the purposes of the Evidence Act 1995 can arise from a person's silence or a failure to respond. Whether it does arise on any particular occasion will depend upon the circumstances. In the present case, the Crown relies upon things said by Mr Dawson as well as things that he did not say as evincing a consciousness of guilt on his part for the crime of murder.
[70]
Consciousness of guilt: direction
It goes without saying that extreme care must be exercised before arriving at a finding that a lie told by an accused person bespeaks a relevant consciousness of guilt of the charged offence. Juries are regularly warned about this and directed to be circumspect about the use that can be made of anything that they legitimately consider to have been a lie by the accused. The same circumspection must also guide me sitting as a judge alone.
First, I must be satisfied that the so-called lies that are considered by me below are in fact lies told by Mr Dawson. It is insufficient that they are or may be inadvertent or mistaken references to matters that could possibly have been true or which Mr Dawson genuinely believed to be true.
Secondly, I acknowledge that I may only take a lie into account as evidence of Mr Dawson's guilt in the sense that it must be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. Proof of a lie does not of itself prove Mr Dawson's guilt.
Before I can utilise a lie I must also find that what Mr Dawson said, or omitted to say, amounts to a lie that relates to an issue that is relevant to the offence with which he is charged, being some significant circumstance or event connected with that alleged offence. I must also find that the reason Mr Dawson told the lie is because he feared that telling the truth might reveal his guilt in respect of the charge he faces or implicate him in the commission of the offence for which he is now on trial.
I also note that people do not always act rationally and that a lie may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his or her guilt. For example, a lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence unrelated to the offence. A lie told for an unrelated reason must be disregarded.
I have taken these principles into account as a mandatory guide in considering the matters that the Crown contends were lies told by Mr Dawson.
[71]
Mr Dawson contacted Lynette Dawson's girlfriends
In the Antecedent Report, provided to the police by Mr Dawson on or about 16 August 1982, under the heading "Possible Contacts", Mr Dawson wrote:
"All girlfriends have been contacted - no success.
Work colleagues - Warriewood Sq Child Minding Centre - no success."
In his 15 January 1991 police interview, Mr Dawson was asked about that as follows:
"Q67. Ah hmm. On the um, the following day, ah after Lyn left um, did you make any phone calls on her behalf?
A. On whose behalf?
Q68. On Lyn's behalf?
A. No.
Q69. Did you phone her employer?
A. Oh sorry um, yes. I would have phoned her employer to say she wouldn't be at work for a few days.
Q70. All right. And did you give a reason why she wouldn't be in for a few days?
A. Um, I would have given some reason like I probably would have said she was not well for a few days and she needs some time off.
Q71. All right. And you um, state in um, the report that you gave to um, the police at the time um, that you had contacted all of her girlfriends without success.
A. I was ringing to find out if any of them knew where she was.
Q72. Right. Do you know who those girlfriends were? Could you give me their names?
A. One of them would have been Robyn Warren um, there was another two that I can remember, I can't remember, who were acquaintances, friends from Lyn's work at the childcare centre.
Q73. Which you contacted them individually, did you?
A. Yes.
Q74. Do you recall their names?
A. No. Sorry.
Q75. Um, and what was the basis of your telephone calls or conversations with them?
A. To see if Lyn was with them, to start with and then to see if they had heard from Lyn or had any knowledge of where she may be.
Q76. Well people who worked at the ah, child minding centre at the time were um, I think three women by the name of ah, Barbara Goodway or Barbara Cruise as she was…
A. I think, I think Barbara would have been the one I would have phoned to say Lyn wasn't coming to work. I would have asked her where Lyn was.
Q77. Now apparently you told her that um, Lyn had phoned you on that morning, the Sunday morning and asked you to ring. Is that correct? Did Lyn phone you on the Sunday morning?
A. I remember she did but obviously to, to appease or to play down the, the embarrassment of what was taking place obviously so Lyn could return to work without any…
Q78. Ah hmm.
A. …sort of major explanations.
Q79. Yeah.
A. I, I presumed Lyn would be back in a couple of days' time so I really, I remember at the time it was easier to just sort of say that she was sick or she wasn't well for a couple of days."
Apart from Robyn Warren, none of Lynette Dawson's girlfriends or work colleagues said that Mr Dawson had contacted them asking whether they had heard from Lynette Dawson or whether they might know where she was. That includes Barbara Cruise who Mr Dawson contacted for the purpose of telling her something, rather than asking her something, as her evidence reveals:
"Q. On 11 January 1982, did you receive any information about Mrs Dawson's whereabouts?
A. I received a phone call from Chris Dawson saying that Lyn had gone away and needed some time out and he didn't know when she would be back.
Q. Where were you when you received that phone call?
A. To be honest, I can't remember. But I don't imagine Chris had my home number so I imagine he rang me at work on that Monday.
Q. Before that Monday, had you spoken with him before?
A. Only in her … when she last worked, on her last day of employment, or when she last worked for me.
Q. Do you remember specifically what Chris told you in that call?
A. Not specifically but I … my recollection is that Lyn he had a phone call from Lyn, she has gone away, she needed some time out, and at that stage he didn't know when she would be coming back.
Q. Did he tell you where she had gone?
A. No.
Q. Did he tell you when she'd gone away?
A. I think it was … well, I know it was the Saturday. Whether he told me that it was a Saturday, I don't recollect.
Q. Did he tell you where he'd been on the Saturday?
A. I don't … I don't recall that. I don't recall that.
Q. From that point was that the only time you spoke with Chris Dawson?
A. No, I spoke with him on other occasions about where, whether Lyn had returned or what was happening with Lyn, yeah. I had spoken to him on other occasions.
Q. On how many other occasions did you speak with him?
A. Once again, I couldn't quantify it. But I'm looking at some of my statements, I've rung a few times or he's rung me. I think it was a bit of both.
Q. So you've just said, 'I've rung a few times, he's rung me', were they …
A. I believe that's how it went; that I would … if I was … I would ring him and say, 'have you heard from Lyn?' And I think Chris did ring me another couple of times after the first time to say that Lyn still needed more time out, is my memory, but no indication of when she would be returning. Or he had no indication.
…
Q. So you agree, so if he indicated that in fact she didn't turn up to the pool that might have been something that he said that you couldn't remember?
A. I don't honestly remember that. I do remember … all I remember clearly in my head Chris saying that Lyn had gone away and that she needed some time out and he didn't know when she'd be back. That's the only thing I can remember for certain."
In the course of this trial, six of Lynette Dawson's girlfriends and five of her work colleagues gave evidence. With the possible exceptions of Robyn Warren and Barbara Cruise, Mr Dawson does not appear to have been in contact with any of them seeking information about her whereabouts. The Crown's contention, that Mr Dawson lied about having inquired of them, is supported only to the extent that these other women might have been expected to give statements or evidence that included a reference to having had contact with Mr Dawson after Lynette Dawson's disappearance and that none has done so.
A stronger argument may be that Mr Dawson said he contacted "all" of Lynette Dawson's girlfriends. That is clearly not true. In particular, Julie Andrew, one of Lynette Dawson's close friends and a neighbour, never received any contact from Mr Dawson of any kind, despite living next door.
Many of Mr Dawson's answers to the police in 1991 in this regard are also subjunctive references: "I would have phoned her employer", "I would have given some reason", "one of them would have been Robyn Warren", "I think Barbara would have been the one I would have phoned" and "I would have asked her where Lyn was". I take the Crown submission to be that these expressions of hopeful uncertainty are consistent with and demonstrative of untruthfulness.
The Crown maintains that I can be satisfied that Mr Dawson did not contact all of Lynette Dawson's girlfriends or work colleagues and that any statement by him that he did is a lie. The Crown submitted that this lie was evidence of a consciousness of guilt because it painted him as a person with no knowledge of Lynette Dawson's whereabouts, as opposed to someone who might have been responsible for it.
[72]
Mr Dawson travelled north by himself
Also in the Antecedent Report, Mr Dawson said this:
"History - Lyn + I had been having marital problems for approx 2 years, mainly over her Bankcard spending and financial matters in general. I left home for 3 days over Christmas + travelled north to be by myself. I returned home on Boxing Day, having missed my wife and daughters and hoping to resolve our differences."
It is true that Mr Dawson and Lynette Dawson had been having marital problems for approximately two years, although it is doubtful that these were "mainly" related to Lynette Dawson's spending. The marital problems were, however, significantly related to the fact that Mr Dawson was in a sexual relationship with JC, to which he made no reference. That omission is a lie. To the same effect, Mr Dawson falsely reported that he travelled north to be by himself: he travelled north to be with JC. Moreover, he did not return on Boxing Day but the day before. It is also extremely doubtful that Mr Dawson missed his wife, choosing to spend Christmas Day away from her and the family and instead with JC at his brother's house. It is also clear that he held no hope of resolving his differences with Lynette Dawson. Indeed, it is difficult to reconcile Mr Dawson's so-called hope of resolving the differences he had with his wife with the terms of his 1981 Christmas card to JC proclaiming, "all my love on our first real Christmas together, knowing I'll love you more each day" and "wishing only for your happiness forever".
The Crown submitted that the omission of any reference to JC as the reason for his marital problems or that she accompanied him on his trip north and that he was then in a relationship with her was an attempt by Mr Dawson to present himself as a deserted husband who was not worthy of suspicion or as the subject of a police investigation. Mr Dawson would have appreciated that the police response to his report of the disappearance of his wife would have focussed attention on Mr Dawson's possible criminal involvement in that disappearance if he had told them the truth about his extramarital sexual relationship with a 17 year old girl both before and after the day he claimed that his wife had vanished without ever contacting her parents, her children, her siblings, her work colleagues or any of her friends.
The Crown promoted these lies as lies that relevantly bespeak a consciousness of guilt. They are all unambiguously framed in terms that deflect attention from the fact that Mr Dawson was having an affair, to adopt his own words in his 1991 interview and his Family Court affidavit, with a woman who had long replaced his wife as the sole object of his affection, a situation that was patent at the date of Lynette Dawson's disappearance. The Crown submitted that a statement that appears to dilute the existence of Mr Dawson's motive to kill his wife is a lie that evidences his consciousness of guilt for her murder.
Mr Dawson's answer to a police question in 1991 should also be noted in this context:
"Q19. And ah, did you stay at your brother, at Paul's place when you returned to Sydney?
A. Um, my children were there with him. They were, I got back by memory I went to my place. My place is just up the road from his, but it's one of those instances where we were with each other all the time anyway, but."
Mr Dawson did return to his own home on Boxing Day, having taken JC first to her mother's apartment and then very shortly after that to her sister's home in Neutral Bay. It was a lie to say that he immediately resumed cohabitation with Lynette Dawson upon his return from his trip with JC.
The Crown contended that Mr Dawson's reference to travelling north by himself is a lie, intended to deflect attention from the fact that he was, at or close to the time of Lynette Dawson's disappearance, in a sexual relationship with JC who moved into the home she left shortly thereafter.
[73]
Missing Person's Report
Mr Dawson made no reference in the 18 February 1982 Missing Person's Report, completed on his instructions, to the fact that at the time Lynette Dawson disappeared, he was in a sexual relationship with JC or that his marriage was in tatters as a result. Mr Dawson told the police on 29 April 1982 that he had not heard from his wife "since STD call" and referred to their marriage problems for 18 months. Mr Dawson made no mention of the fact or the possibility that those problems may have been caused by his relationship with JC.
The Crown contended that Mr Dawson's failure to include any reference to the failing state of his marriage when originally reporting Lynette Dawson as a missing person, or to the possible connection between the state of his marriage and JC when he later did mention marriage problems, were omissions intended to disguise, or to deflect attention away from, the fact that the problems in his marriage could have been related to his relationship with her, and are capable of supporting the existence of a relevant consciousness of guilt.
In a slightly related context, the Crown draws attention to exhibit CE, a statement of former Detective Ian Young dated 29 December 2010. Mr Young knew Mr Dawson from the 1970s when they played touch football together. Paragraph 7 of that statement is as follows:
"7. Since reading the article about Christopher DAWSON, I recall one morning in summer 1982 I was working in the Detectives Office at Mona Vale when a person I believe to be was Christopher DAWSON walked into the office. I know it was a weekend either Saturday or Sunday because I was working alone. At the time my partner was Doreen CRUICKSHANK (now Superintendent of Police at Northern Beaches) who was not in the Detectives Office when Christopher DAWSON walked into the office that day. He walked into the office yelling, 'She's gone, she's gone.' I stood up and looked around the corner and saw a male person that looked like Christopher DAWSON or his identical twin brother Paul DAWSON. He was extremely agitated and looked very distressed. I said, 'Excuse me what are you talking about?' He said, 'My missus is fucking gone.' I said, 'Sorry I haven't seen you for years. Is it Paul or Chris? I'm Ian YOUNG.' He said, 'Who.' I said, 'Youngie we played touch footy years ago. What's up mate?' He said, 'Oh fucking hell, it's you Youngie. I'm Chris. Oh my wife she's gone.' He started too [sic] hesitate and then said, 'I think she's fucked off with another bloke. I've gotta go.' He quickly turned around and walked out of the office. He ran out the front door onto the Detectives driveway and into the street that leads down to Pittwater Road, Mona Vale. I believe at first Christopher DAWSON didn't recognise me because we hadn't seen each other since 1977, five years previously."
The Crown relied upon this incident to emphasise the dissimilarity between the Missing Person's Report made at or about the same time. The Crown emphasised that although Mr Dawson told different people different things about where Lynette Dawson was or might be, everything that he said about those destinations was vague, unverifiable and unlikely to attract suspicion in his direction. The Crown submitted Mr Dawson was, in effect, "remembering something that is false".
[74]
Family Law affidavit
In his affidavit sworn in the Family Court on 29 April 1983, Mr Dawson said that he commenced a de facto relationship with JC in April 1982. Having regard to my conclusions elsewhere in these reasons, that was a lie. I have already concluded that Mr Dawson commenced cohabitation on a bona fide domestic basis with JC on or about 12 January 1982.
I am not satisfied that this lie is unambiguously related to Mr Dawson's concern about possibly being implicated in the murder of his wife. The statement could very well have been an attempt merely to paint himself in the best light possible as part of the proceedings in that court.
[75]
Lynette Dawson seen in New Zealand
Mr Dawson told the police in 1991 that he had been told that Lynette Dawson had been located in New Zealand:
"Q11. Have you um ah, ever had any further contact with her or have you located her?
A. I haven't had any further contact with her although Ian Kennedy disclosed to me several years ago at ah, old school reunion that um, he had heard a whisper that she was in New Zealand.
Q12. I've spoken to Ian Kennedy about that and ah Ian, whilst I'm not saying it didn't take place but ah, Ian has no knowledge of it. Could you be more specific as to when that took place?
A. Well, it was at a school reunion um, '65 in 1985 at Sydney Boys High School but he probably was slightly intoxicated. But um, he told me then, the two of us were together having, he was drinking, I'm a non-drinker. We were sitting having a conversation and he said to me he'd heard that she was um, in New Zealand. I spoke to Ian probably twelve months, oh sorry earlier in the year and he said, once again, he said he couldn't, he said to me what he obviously said to you, he said he couldn't exactly remember the conversation but the conversation took place in 1985 at Sydney Boys High School."
Former Detective Ian Kennedy was asked about this in evidence:
"Q. In your work as a police officer have before been to New Zealand?
A. Yes.
Q. Did that have anything to do with the disappearance of Lynette Dawson?
A. Not at all.
Q. What would you have been required to do if you had been making inquiries or receiving information concerning the disappearance of Lynette Dawson?
A. Well, I would make sure there was a record of it, put it on paper. I would contact whoever was in charge of the investigation, speak to them and also send them the written documentation. We would have called it a running sheet in those days and a running sheet was just, I put the information down and then forward it to the relevant section or the officer-in-charge of the investigation.
Q. What do you say to the suggestion that at that 1985 Sydney Boys' High reunion you told Chris Dawson that you'd heard his wife Lynette was in New Zealand?
A. That's incorrect. I had no information at all about Lyn Dawson's appearance in New Zealand or anywhere.
…
Q. But the fact is that you did go to New Zealand at some stage, didn't you?
A. I did at some stage but it had nothing to do with Lynette Dawson's disappearance.
…
Q. And is it a possibility that what occurred was that you knowing … this question is premised on the basis that you had the knowledge that Lyn had disappeared at the time of the reunion … told Chris words to the effect, "Look mate, she's okay, she's in New Zealand"?
A. No. I had no part in any investigation into Lynette's disappearance at all and I had … if I had received any information it would have been documented and filed.
Q. See, what I suggest to you is it's a possibility that you were just trying to help an old mate when you knew his wife had disappeared?
A. I would like to have helped an old mate but I had nothing to do with it whatsoever."
I accept without reservation the evidence given by Mr Kennedy. It follows that what Mr Dawson told the police in 1991 is a lie. The Crown submitted that that lie was clearly told in an attempt by Mr Dawson to breathe life into the possibility that Lynette Dawson was not dead and is a lie that evinces a consciousness of guilt relating to Lynette Dawson's murder.
[76]
Hope of her return
It will be recalled that Mr Dawson told the police in 1991 that there were "nights that [he] lay awake crying [his] heart out hoping for some contact from Lyn". That sentiment is to some extent redolent of what Mr Dawson wrote in an advertisement (so called) placed by Mr Dawson in The Daily Telegraph on 27 March 1982 which said, "Lyn I love you, we all miss you. Please ring. We want you home. Chris".
By this date in March 1982, JC was living with Mr Dawson in the former matrimonial home, sleeping in Lynette Dawson's former matrimonial bed and wearing some of Lynette Dawson's clothes. If Lynette Dawson had been alive and seen this advertisement and returned to 2 Gilwinga Drive, she would have encountered all these things. She would have found that JC had displaced her as Mr Dawson's spouse and as the effective, albeit reluctant, mother to her children.
The Crown submitted that this advertisement was part of Mr Dawson's ongoing deceptive attempts to portray himself as a deserted husband who was longing to find his wife and welcome her back. His representation to the police in 1991, in this same period presumably, that he lay awake hoping for her return, is in this category. These sentiments have also to be compared with Mr Dawson's expressions of love for JC in his card written as recently as her 18th birthday in February 1982.
The Crown submitted that Mr Dawson lied in the advertisement in 1982 and that he lied to the police in 1991. The Crown contended that these lies also bespeak an effort to deflect attention from any suggestion that Lynette Dawson could then have been dead or that he might have murdered her. The Crown maintains that these lies demonstrate the existence of a relevant consciousness of guilt.
[77]
$500
As earlier discussed in the context of whether it is reasonably possible that Lynette Dawson abandoned her home, the Missing Person's File records Mr Dawson as having told the police that his wife was in possession of $500 when last seen. The Crown submitted that this was a lie intended to remove any doubt that Lynette Dawson might have left to start a new life on her own that could be raised if it were thought she did so with no funds to sustain her. Such a lie would be evidence of a consciousness of guilt to the extent that it would reinforce an innocent explanation for Lynette Dawson's disappearance and deflect attention away from Mr Dawson as a possible suspect.
[78]
Phone calls
In his 1991 interview, Mr Dawson said to the police that "the last phone call I had I think was within say two weeks or so of Lyn leaving". Later in the same interview, Mr Dawson was reminded that he told the police in August 1982 that the last contact he had with his wife was on 16 January 1982, which is a week after she disappeared. He was also informed that JC told police that Mr Dawson told her that he had received a call from Lynette Dawson in the middle of February. In response to all of that, Mr Dawson said, "I will stand by what I said in August or whatever to the police that the last phone call was on the 16th, then that's when it was".
However, the extract of an intercepted phone conversation between Mr Dawson and his brother Gary on 12 September 2018, which became exhibit CH, contains the following representation by Mr Dawson:
"You couldn't, but you couldn't report a person missing while you had contact with them. And I still had contact with Lyn for like 6 or 8 weeks. When I decided you know that there mightn't be any more contact, that's when I, following the police advice, reported her missing. But if someone's talking to you on the phone and that like every couple of weeks or whatever and that you don't report them missing…".
These words said by Mr Dawson in the preceding extract are redacted from the longer version of the same conversation in exhibit 35. I have concluded elsewhere, by reference to exhibit 35, that at the time this conversation took place, Mr Dawson was aware that his phone was being, or might have been, tapped. Mr Dawson's statement to the police in 1991 that he last spoke to Lynette Dawson on 16 January 1982 and his statement to his brother on 12 September 2018 that he had contact with his wife for six to eight weeks after she disappeared cannot both be true. I have already indicated my view that Mr Dawson never received a phone call from his wife after 8 January 1982, so that comparison is not in itself of significance: both versions are lies. The statement made to Gary Dawson is in my view just another, albeit different, version of the same lie, that is to say, that Lynette Dawson contacted Mr Dawson by phone after she disappeared. Whatever version of the lie is considered, the Crown contends it is a lie told to give the impression that Lynette Dawson was alive after 8 January 1982, thereby supporting Mr Dawson's exculpation for her death.
[79]
Exhibit AA
As will be seen from the preceding analysis, many of the representations that the Crown relies upon as lies demonstrating a consciousness of guilt derive from answers given by Mr Dawson to the police in his interview on 15 January 1991. Apart from those specific references, I also raised with the Crown the general question of what use I could make in these proceedings of Mr Dawson's answers in that interview taken as a whole. That discussion was in the following terms:
"HIS HONOUR: This may not be a contextually appropriate time to ask you. Mr Dawson gave the interview to the police in Queensland that's electronically recorded. That was not an interview given when he was bound by an oath to tell the truth. He hasn't given evidence in these proceedings and adopted it or rejected it and that's simply a fact that we all we understand the significance of that or its lack of significance. My question is, representations by him about particular facts made to the police at that time, what am I entitled on your submission to make of them bearing in mind that some of them were complete denials of anything that might have been said against him and others were representations which you point to by way of comparison with other representations about phone calls, for example, that you want to draw attention to. What's the status of what he said in those questions and answers?
CROWN PROSECUTOR: They're lies. There was a smoke screen to divert attention away from him and to promote the proposition that she had simply disappeared.
HIS HONOUR: I understand that you say that.
CROWN PROSECUTOR: Yes.
HIS HONOUR: As a matter of natural justice or fairness, am I entitled to form a view that the things he said, or some of the things, were lies when he hasn't been tested on them, when they weren't sworn. I'm not being argumentative.
CROWN PROSECUTOR: No, I understand I think the point your Honour's making.
HIS HONOUR: Yes.
CROWN PROSECUTOR: The Crown accepts that it has to disprove reasonable possibilities that she was alive, and to the extent that there are suggestions of that in representations made by the accused outside of court, they need to be rejected with the certainty that flows from the requirement that the Crown proves the case beyond reasonable doubt. Could I just touch on a tricky part of all of this, which is, even in the Bench Book on circumstantial evidence, whenever Baden-Clay gets mentioned knowing that it came from Queensland, there's a reference in there to Weissensteiner and the matters that are there. At this moment I can't usefully make a submission as to whether that is accurate and I'm loath to say that it's wrong but I think it is when it comes to the law in New South Wales.
HIS HONOUR: If an interview voluntarily given to the police contains representations by an accused person, not given under oath, that can be shown to be wrong and, on your account, lies, or if it contains representations to police that from other information that's available are shown to be completely truthful, what's the measure by which I judge whether anything said by Mr Dawson in that interview should be accepted as the truth or not? I haven't had any opportunity of seeing him speak except, relevantly, except in that record of interview. It's important that it not be misused, and I know you're not asking me to misuse it, but I want to know where it falls in the Crown case as an available … there's a document from which available inferences can be drawn against the accused on the Crown case.
CROWN PROSECUTOR: The correct approach when looking at this proposition that there was a reasonable possibility that she was alive after 9 January, at the moment I'm taking the Court to an examination of those individual categories, but the answer doesn't rest, doesn't stop there. It's about coming back to look at the essential, in this case, the denials and the assertions in effect of innocence in light of all the evidence in the case. So, your Honour's assessment of what was said in any particular part of exhibit AA, that record of interview, can only meaningfully be done in light of all of the evidence in the case.
HIS HONOUR: So, in brief, the answer is Mr Dawson has made a series of representations in various circumstances over a long period of time, including that record of interview. They are representations which in a circumstantial case can be taken together for comparison, one with the other, or others, with a view to forming a conclusion if possible about where those representations fit in the scheme of things. Is that a proper approach?
CROWN PROSECUTOR: Yes."
Mr Dawson was legally represented at the 1991 interview. He was not cautioned until question 124. In addition to the Crown's contention that specific answers given by Mr Dawson were lies, I take its further contention to be that the interview taken as a whole can be treated as a situation amounting to a relevant circumstance that shows, when considered in the light of all the evidence in the trial, that Mr Dawson was painting a general exculpatory picture of himself by giving answers in support of the suggestion that Lynette Dawson was alive after 8 January 1982 which other evidence in the trial indicates could not be correct.
At the risk of some repetition, that submission needs to be considered by reference to Mr Dawson's answers.
In answer to question 10, Mr Dawson told the police that he travelled north for a few days for "time away from home" but failed to mention that he did so in the company of JC. However, that omission is corrected in his answer to question 17. He told the police that "after marriage guidance for a few days Lyn seemed… disturbed by the results of that". The reference to "a few days" is not correct as Lynette Dawson disappeared the day following marriage guidance counselling. The evidence of her work colleagues and Mrs Simms and Mr Day did not support the suggestion that Lynette Dawson was disturbed in any way at all. I have already found that Mr Dawson did not receive a phone call from Lynette Dawson at the Northbridge Baths or at any time thereafter, contrary to his representations to the police. Mr Dawson was also not "for the remaining period after twelve months…constantly in touch with … people…to try and find and locate where Lyn was".
In answer to questions 11 and 12, Mr Dawson said that Ian Kennedy disclosed to him "several years ago" that "he had heard a whisper that [Lynette Dawson] was in New Zealand". I have already found that former Detective Ian Kennedy did not suggest that Lynette Dawson may have been located in New Zealand.
Mr Dawson said in answer to question 14 that he received a phone call from his wife "several days after the first phone calls". I have found that Mr Dawson did not receive such calls.
In answer to question 19, Mr Dawson said that on his return from Queensland with JC, he did not go to his brother Paul's place but "went to [his] place". That is not correct.
In answer to question 21, Mr Dawson said that JC telephoned him from South West Rocks "and asked [him] if she, would she like to come back, more or less I think she wanted to get away from South West Rocks and all". Question and answer 196 was to a similar effect:
"Q196. And ah tell me this, whose instigation was it for you to give [sic] up to South West Rocks and pick [JC] up?
A. [JC's] instigation. There was no way I could have contacted. She, she contacted me and asked if I could come, and, I, I drove up through the night and met her the following morning."
I consider those answers to be untruthful. JC's evidence was that by the time she went to South West Rocks she wanted the relationship with Mr Dawson to end:
"Q. The following day was Boxing Day; where did you spend that?
A. I was dropped off to my mother's because I told Chris Dawson that I didn't want to continue with the relationship and he dropped me at my mother's."
JC gave evidence which I accept, indirectly supported by KL and MC, that she felt obligated to come back to Sydney from her stay at South West Rocks and that she did not feel like she had a choice. As noted earlier, JC said, "I knew that there was a lot of pressure to stay with him and I didn't - I was just a child and I didn't want that".
Mr Dawson said in answer to question 23 that he drove to South West Rocks to collect JC "probably about a week or so after". In answer to question 24, Mr Dawson curiously gives the unsolicited answer that "I doubt very much it wasn't the day after". In answer to question 28, Mr Dawson said that it "would probably be correct" to say that he drove up on Saturday 16 January 1982. I have found that that is not correct.
Mr Dawson's answer to question 31 was as follows:
"Um, the first phone call. And then after that I was in contact with [Mrs Simms], telling her…well I, I rang her to see if she had heard from Lyn and we were in contact for a while. Then when [JC] moved in to live with me, obviously her mother for family reasons um, obviously she stopped contacting me for further information and was um, naturally feeling antagonistic towards me…marriage breakdown."
To the extent that Mr Dawson's answer indicates, as I consider it does, that JC did not immediately move in to live with him at Gilwinga Drive upon their return from South West Rocks, it is incorrect. I also consider that his answer to question 43, saying that JC did not move in with him straight away but only "several days later" is not correct.
Mr Dawson said, in answer to question 36, that he "was very anxious for Lyn to come back to us to work things out". That answer should be considered together with his answer to question 37:
"Um, I, at the time I thought I was being reasonably patient each phone call when, when Lyn rang me to say she needed time away I was there with, looking after two girls, I was saying take time because I had time away myself. Um, [JC] rang me and said that she was um, wanting to come back to Sydney. She needed to come back and get home. I brought [JC] back. Part of it was I thought she was going to return to her family home, not to my home. She ended up coming and living with me because she wasn't wanted anywhere else."
In answer to question 38, Mr Dawson said, "I didn't ask [JC] to come and live with me". His answer to question 42 should also be noted:
"I didn't ask her to come and live with me, she asked if she could come back, if I could sort of come and get her and bring her back to Sydney. But because she was saying that she missed me obviously but that at that stage I was still under the understanding that she was going to come back and live somewhere else in Sydney, not with me."
The Crown contends that these answers were all intended to create the false impression that Mr Dawson was not the driving force behind retrieving JC from South West Rocks and installing her in his home. They are in contrast with the evidence of JC, which I accept, as follows:
"Q. I suggest to you over the course of that period of time you were having difficulties about where you would live?
A. I moved straight back into that house after South West Rocks. There was no discussion around anything like that. We never had discussions like that.
Q. Suggest to you that you moved in shortly before the girls or the elder daughter started school?
A. No.
Q. And that it was … in the discussion, it was agreed that you would help with the girls?
A. I object to the whole thing you're saying. It didn't happen.
Q. I want to suggest to you that it was also agreed because it was a matter of convenience for you to have somewhere to live?
A. I didn't feel as if I had anywhere else to go at the time.
Q. So do you agree then that it was a matter of convenience because it was somewhere for you to live?
A. No.
Q. I want to suggest that when you moved back into the house that you initially went and stayed in the study for a number of weeks up to approximately one month?
A. No.
Q. Or around one month that you slept and stayed in the study area?
A. No I did not.
Q. And that during that period of time, Mr Dawson made it clear to you that if Lynette Dawson had come back home you would have to leave?
A. Absolutely did not.
Q. You've told us how Mr Dawson was pressuring you, as I understand your words, correct me if I'm wrong, if I've misquoted you, that … withdraw that. You've stated in this court yesterday in particular that Mr Dawson put a lot of pressure on you, as I understand it, to stay with him, to be with him?
A. Yes.
…
Q. I want to suggest that at that time when you moved into the Bayview home you did not want Lynette Dawson to come back?
A. I didn't want the responsibility of cooking, cleaning, looking after Lyn's children, who she loved. I wondered where she was. I wanted her to come back so I could go and live my life as a 17 year old.
Q. I want to suggest to you, [JC], that that is what you think now, it was not what you thought then?
A. What I thought then was that … oh my God, what is going on here? Why … where … what's going on? What am I going to do? Why am I here? "
Questions 54 and 55 are reproduced above at [255]. In part, Mr Dawson refers to "an incident at home where [Lynette Dawson] had thrown our little, our second daughter, our daughter, our second daughter onto the bed and sort of had ah, a bit of an emotional breakdown at the time". Mr Dawson said in the same answer that this occurred on "the day prior to Lyn leaving". He also said that his wife "started being negative in the night time" and "was starting to question the…outcome of our marriage guidance". That answer would appear to be in complete contrast to the impression given by Lynette Dawson to her mother and Mr Day in phone conversations with them that same evening. The Crown submitted in this respect that Mr Dawson added that detail when spoken to by the police in 1991 for the obvious reason that he was being interviewed by homicide detectives and he knew his version that Lynette Dawson withdrew from her life on the morning of 9 January 1982 made more sense if she was unsettled or not happy the night before.
The Crown contends that Mr Dawson's answer was an untruthful attempt by him to suggest that Lynette Dawson's mental state had deteriorated or changed in a way that was consistent with her making a spontaneous decision to walk away from her marriage the next day.
In answer to question 88, Mr Dawson said that he had received "several phone calls" from Lynette Dawson. I have already rejected that evidence as a lie.
In the course of his answer to question 164, Mr Dawson intimated that he had been "yearning for contact from [his] ex-partner or from [his] partner". It is the Crown case that that answer can be seen as an attempt by Mr Dawson to indicate that he was not happy that he had not heard from his wife, in order to counter the suggestion that he was in fact of completely the opposite view.
Finally, the following questions should also be noted:
"Q197. How um, at that time how often ah, were you in phone contact with her?
A. With [JC]?
Q198. Ah hmm.
A. Um, that was probably the first phone call from South West Rocks…so, probably I hadn't heard from [JC] for a week or so.
Q199. So what, you didn't have daily contact?
A. Not by memory, no.
Q200. [JC] alleges that at the time that you were speaking together on the phone every single day.
A. Was I ringing her?
Q201. Well, she says that you were phoning. But ah, regardless of who was doing the phoning, did you have phone contact?
A. Not by memory, no. As I said, I might have had one phone call four or five days prior to her starting her holiday but I think the only phone call prior to that was the fact that I obviously, [JC] was going to have time up with her sister and father and I assume she was coming, whenever she did return she was going back to the family home and as far as we were both concerned, our relationship had finished. And at the next phone call I had was when she asked me if I could come and bring her back down because she wanted to come back sooner."
I do not accept that Mr Dawson considered that the relationship "had finished". The Crown submitted that this was a lie told to the police at the time to deflect attention from the suggestion that Mr Dawson had, or may have had, a motive to get rid of his wife. It is entirely inconsistent with the "J.M.D." card he gave JC professing his love for her roughly two weeks beforehand.
[80]
Note
However, the extent to which the Crown can rely upon, and to which I can legitimately utilise, anything said to be a lie demonstrating the existence of a consciousness of guilt, must be understood having regard to the following very important constraint. In De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, the High Court said this at [12]:
"[12] In Johnson v Western Australia, Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a 'reasonable doubt' on that issue. For that reason, it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?"
In accordance with this accepted wisdom, a rejection of Mr Dawson's account to the police in 1991 does not mean that he is guilty. A rejection of Mr Dawson's account, or any part of it, does not otherwise relieve the Crown from the obligation to prove its case beyond reasonable doubt. Any lies told by Mr Dawson do not establish his guilt.
There is no doubt that, sitting as a judge alone, I should give myself a direction to the same effect. The Crown remains obliged throughout this trial to prove its case beyond reasonable doubt upon the basis of evidence that I do accept. There is on one view a possible tension between the requirement that I must put aside any account given by Mr Dawson that I do not accept to be true on the one hand and the ability of the Crown to draw attention to portions of that account that the Crown says are lies demonstrating the existence of a consciousness of guilt on the other hand.
However, this potential conundrum, if it exists at all, can be explained in the following way. Before anything said by Mr Dawson can be treated as or understood or accepted to be a lie, the Crown must prove it to be so. Accordingly, by way of example, if a hypothetical accused told the police that he was in Queensland on the day it is alleged he committed a crime in New South Wales, the Crown would be required to prove that he was in New South Wales as part of its obligation to prove its case beyond reasonable doubt. Anything upon which the Crown proposed to rely as a lie told by an accused would have to be established otherwise than by reference to anything said or not said to the police by the accused in the course of giving a version of events to the police that the tribunal of fact was minded to reject. However, once the Crown has positively proved a state of facts, independently of anything said or not said by the accused, that show that what the accused told the police was a lie, the Crown can marshal that lie as possible evidence of consciousness of guilt if it is otherwise able to do so. The Crown in such circumstances is not subverting the principle that the tribunal of fact must discard an accused's evidence if it is not believed to be true. The Crown is simply characterising the accused's representation that it has otherwise positively proved to be untrue as conduct that gives rise to an inference adverse to the accused.
[81]
Conclusions
These are all matters that must be taken into account, as separate circumstances but considered having regard to all of the evidence as a whole, on the question of whether the Crown has satisfied me beyond reasonable doubt of the guilt of Mr Dawson on the charge of murder.
[82]
delay in prosecution
Section 165B of the Evidence Act 1995 is in the following terms:
165B Delay in prosecution
(1) This section applies in a criminal proceeding in which there is a jury.
(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.
(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.
(6) For the purposes of this section--
(a) delay includes delay between the alleged offence and its being reported, and
(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.
(7) For the purposes of this section, the factors that may be regarded as establishing a "significant forensic disadvantage" include, but are not limited to, the following--
(a) the fact that any potential witnesses have died or are not able to be located,
(b) the fact that any potential evidence has been lost or is otherwise unavailable.
A dominant and understandable theme of Mr Dawson's response to the Crown case is that he labours under a significant forensic disadvantage and has been denied the chance of a fair trial by reason of the extraordinary delay between 8 January 1982 when the Crown alleges he killed his wife and 9 May 2022 when his trial commenced. Mr Dawson claims general presumptive prejudice having regard to the passage of 40 years, if not more, as well as particular prejudice by reference to the death of potential witnesses and the unavailability of documents.
Some witnesses have died. These include Phillip Day, Elva McBay, Sue Butlin, Ross Hutcheon, Helena Simms, Michael O'Brien, Leslie Bush, Col Stubbing, Brian Gardiner, Margot Newlands, Kevin Roberts and Ian Young. In addition, some evidence has been lost or is otherwise unavailable. Possibly most significantly in this category are bankcard statements said to support transactions effected by Lynette Dawson after 8 January 1982, the Rockcastle Private Hospital records, especially the employee information, telephone call records from the Northbridge Baths on 9 January 1982 and Mr Dawson's home phone in January and February that year, and potentially clinical notes taken by the marriage guidance counsellor during the consultation with the Dawsons on 8 January 1982. There may be other evidence in this category, although none was specifically emphasised or brought to my attention. It is convenient to deal with the particular before moving to the general.
Many of the witnesses who have died were long ago identified as potential contributors to the resolution of the mystery surrounding the disappearance of Lynette Dawson. Without being exhaustive, Phillip Day, Elva McBay and Sue Butlin provided statements before their death. Phillip Day gave evidence at the 2003 coronial inquest. Elva McBay gave evidence at the committal hearing. The coronial inquest transcripts are available and have in some cases been tendered in this trial. Mr Dawson was represented by his brother Peter Dawson at that time. Ross Hutcheon is dead but was thoroughly interviewed by police in Western Australia before that and a video recording of his interview was tendered in this trial. Sue Butlin's husband is still alive and gave evidence of the representations made by her to him concerning her sighting of a woman she believed to be Lynette Dawson. Col Stubbing was never interviewed before he died and so his evidence has been lost forever. Helena Simms was also never interviewed but her contribution has been somewhat extraordinarily documented in her prolific dairies and letters that give what might be characterised as a real-time commentary on events as she perceived them at the time. These have been received as evidence in this trial as well.
It cannot be doubted as a matter of principle that it would have been preferable if this trial had commenced before now-dead witnesses became unavailable. However, closer examination of the dead witnesses' evidence suggests that Mr Dawson's specific complaints about disadvantage caused by their absence may be less significant than at first sight appears. For example, Phillip Day, to the extent that he was able, effectively corroborated what Mr Dawson said occurred at the Northbridge Baths on 9 January 1982. I do not understand there to be controversy attending his evidence about how he described Lynette Dawson's mood in his telephone conversation with her the previous evening. I am prepared to assume that Mr Dawson's interests were thoughtfully analysed and protected by his brother at the coronial inquest. I acknowledge in that respect that Mr Dawson was not then on trial for murder, but in the nature of things would undoubtedly have been seen as a person of interest. Having regard to Mr Day's statements and evidence at the coronial inquest, it is difficult to discern any particular disadvantage that his current unavailability may have occasioned. None was identified to me by Ms David during the course of her extensive closing submissions.
Elva McBay's evidence at the committal hearing was video recorded. That recording was tendered in this trial. Having seen and heard Mrs McBay give her version of what she said she saw, I would be doubtful that she would have resiled from anything she said at that time if cross-examined again before me. She was cross-examined at the committal hearing by very experienced senior counsel for Mr Dawson. It is difficult to detect the existence of any disadvantage occasioned by her unavailability now. In any event, her evidence was not unfavourable to Mr Dawson.
Ross Hutcheon's police interview was entirely favourable to Mr Dawson. He gave evidence on 13 February 2020 at the committal hearing as well. He remained adamant that he saw Lynette Dawson in Gladesville. That evidence is unlikely to have been the subject of challenge by Mr Dawson in these proceedings. Ms David did not suggest in terms that Mr Hutcheon's absence was prejudicial to Mr Dawson in this trial.
Despite her absence, Sue Butlin's evidence was effectively received through her husband. Her representations to him supported Mr Dawson's response to the Crown case by the identification of a woman she thought was Lynette Dawson at the Kulnurra Fruit Barn well after 8 January 1982. Ms Butlin's unavailability meant that her evidence was not subject to challenge.
Col Stubbing could well have been a critical witness in this trial. Mr Dawson presumably wishes to argue that he would have been able to clarify the question of whether or not he was present at the time Mr Dawson received an STD phone call from a woman at the Northbridge Baths on 9 January 1982. As presently understood, there is no way of knowing whether any evidence that Mr Stubbing could have given would have been favourable or unfavourable to Mr Dawson. That is, of course, a question that attends assessment of the existence of prejudice in all cases in which it is not known what a particular witness would say or what a particular document might reveal.
In Binns v R [2017] NSWCCA 280, an appeal involving delay in a case of sexual assault, Basten JA said this:
"[23]…In the course of the reasoning, however, Adams J stated [Groundstroem [2013] NSWCCA 237]:
'The fundamental question is whether there has been a significant forensic disadvantage, which will depend on the nature of the complaint and the extent of the delay in the circumstances of the particular case. The extent of delay is not the test. Rather, it is the consequence of delay which is decisive. The focus on the length of delay has, I think, arisen because of the notion of presumptive prejudice, especially as to reliability of recollection, which was earlier regarded as giving rise to the need for a warning.'
[24] It is true that s 165B is not engaged on the basis of 'presumptive prejudice', if by that it is meant that a significant forensic disadvantage must be demonstrated, rather than assumed by reference to the lapse of time. As explained by the Victorian Supreme Court in PT v The Queen:
'The section recognises that delay in the reporting and/or charging of an offence can create significant forensic difficulties for an accused, and that it may be necessary that these difficulties be drawn to the attention of the jury. By contrast with Longman, a court is prohibited from suggesting in any way that it would be dangerous or unsafe to convict the accused solely because of the delay or forensic disadvantage suffered.
The phrase 'significant forensic disadvantage' requires examination of the consequences of the delay for the accused in relation to the particular case. Such disadvantage arises not because of delay itself, but because of the consequences of delay. For example, it may be that potential witnesses have died, or are not now able to be located. Alternatively, potential evidence may have been lost or is otherwise unavailable.'
The Court also noted that delay may be of such a magnitude that significant forensic disadvantage 'is a matter of necessary inference.'
[25] Three observations may be made about the passage set out above from Groundstroem. …Thirdly, as the discussion of Longman and subsequent cases referred to above indicates, the concern has always been that a long passage of time may make it difficult to have a fair trial, in ways which may not be immediately apparent to jurors. Thus, contrary to the applicant's arguments, Groundstroem does not assist in resolving the issues of construction noted above. The logic of the applicant's argument was that any lapse of time which resulted in the loss of a possible source of relevant evidence engaged the obligation to warn in s 165B. That submission should not be accepted."
Ms David did not seek to draw to my attention any particular way or ways in which the absence of witnesses may have caused a significant forensic disadvantage. One point that I take from Basten JA's analysis in Binns is that it cannot automatically be assumed that delay per se only disadvantages Mr Dawson or that it necessarily does so at all. For example, it cannot be assumed, favourably to Mr Dawson, that Mr Stubbing would have supported the fact that he was present on 9 January 1982: evidence that may have been given by him to the contrary would mean that his availability at this trial would have been disadvantageous to Mr Dawson.
The same may be said with respect to the unavailable documents. It will never be known what the employment records at the Rockcastle Private Hospital could have revealed about who worked there in 1984. Forensic disadvantage cannot automatically be assumed. Similarly with Lynette Dawson's bankcard statements. Whether they existed at all or what they would have shown if they were produced is not, and cannot, be known. No assumptions that are exclusively favourable to Mr Dawson can be made in their absence. Section 165B(6)(b) effectively says as much.
One matter that does not require elaboration is the reality that people's recollections of events four decades on are likely to be less accurate than for more recent events. That truth is to some extent mollified in this case by the fact that many witnesses gave statements as early as the 1990s and gave evidence in coronial proceedings in 2003. There are exceptions to that general review: Mr Cooper, for example, did not materialise until much later, in December 2018.
Despite the fact that this is a trial by judge alone, it was not in contest that there have been significant delays in this case and that I should take that fact into account in the course of my deliberations. This is not, however, a case in which Mr Dawson has been able to identify the fact, as opposed to the possibility, that he has thereby suffered a significant forensic disadvantage. Section 165B(2) speaks of "the nature of [the] disadvantage and the need to take [the] disadvantage into account when considering the evidence". That is a reference to a significant forensic disadvantage of which a trial judge must be satisfied for the provision to operate. As I have tried to make clear, Mr Dawson's concern is that he has been presumptively disadvantaged. In the absence of the identification of some specified disadvantage, I am unable to warn myself in a way that the section contemplates. However, I remind myself that in deciding this case I must remain constantly vigilant to identify and make allowance for the possibility that Mr Dawson's ability adequately to respond to the Crown case may have been unfairly compromised by the fact that he faces a trial for murder in 2022 and not 1982.
[83]
The police investigation
In a not entirely unrelated sense, Mr Dawson has emphasised what he maintains are deficiencies in the way in which the police investigation into the disappearance of Lynette Dawson has been handled over the years. The most extreme manifestation of that complaint is that the police at some stage formed the view that Mr Dawson was guilty of the murder of Lynette Dawson and would not permit the possibility that he was uninvolved in her death to divert them from the single-minded pursuit of evidence to support it. For example, the following exchange occurred between Ms David and me:
"DAVID: Well, it just again tells your Honour of the prejudice, the delay, and the focus … well, I think, your Honour, it tells your Honour, it speaks to your Honour in relation to how some of the other inquiries that I will come to … that is in relation to the Hutcheons … how your Honour might interpret or consider the evidence of Mr Hutcheon, given the Crown has asked you to consider that he is deliberately lying about that.
It is the defence position that your Honour would consider the evidence of Detective Loone and the way he approached the investigation and his failure to follow up sightings to be a factor that your Honour would take into account to in fact reject what the Crown is asking you to do in relation to Mr Hutcheon.
HIS HONOUR: When you say failed to follow up sightings, can we move to the Hutcheons now?
DAVID: Yes, we can.
HIS HONOUR: Was it not Detectives Pendergast and Gill who first contacted the Hutcheons?
DAVID: Yes, but not for the purpose of following up a sighting.
HIS HONOUR: No, no, but the note relating to the Pendergast/Gill meeting with Mr and Mrs Hutcheon, the Crown suggests, demonstrates that Mr Hutcheon did not tell them then about a sighting he had previously had. I am just concentrating on your point. Where does Detective Loone's inaction or carelessness, or whatever you want to call it, intersect with that, because he doesn't come in until some years later?
DAVID: Well, no, he does. Pendergast is working with Detective Loone at the time.
HIS HONOUR: Right.
DAVID: That is, on the investigation.
HIS HONOUR: Pendergast and Gill say nothing is mentioned.
DAVID: Yes.
HIS HONOUR: That is communicated to Loone presumably, or it is available to him. What did he fail to do or what do you say he ought to have done in the circumstances?
DAVID: The defence say that you could not have any confidence in the reliability of the record keeping of either Detectives Loone, as they then were, or Pendergast. And you could not have any confidence in the note in relation to the Hutcheons because there had been demonstrable examples … there have been a number of examples in this trial that demonstrate that if a witness gave evidence which corroborated the accused in any way, Detective Loone … and we say by association and by the manner in which the investigation was conducted … that they deliberately omitted to either take a statement or record it.
That is the first example of that because I think it is important to go back to those examples, we say, that are proven examples of Detective Loone having misled the investigation, firstly by his failure on two occasions to take a statement from [CB], when she had told him positively, and her evidence in my submission to your Honour is that you would accept her evidence, that she took a phone call either from Paul or Chris, and Paul said he never received a phone call. So there is that part.
He failed to do that and then went to the … we say it is extreme what Detective Loone did. He then went to an inquest and challenged the representative of Christopher Dawson when he was examined at that coroner's inquest in 2003 and said that he did not know the names of the girls who were at the time at the kiosk at the Northbridge Baths.
That, we say, is a lie, because he did know the names, and he challenged the legal representative at the time, essentially throwing the onus back onto the accused and saying, 'well your client hasn't told us any names'.
The second point is he interviewed Phillip Day and, at the inquest, informed the inquest, under oath, that he did not know anything about Phillip Day until a later point. He gave evidence in the inquest to say that he did not know anything about Phillip Day having been there. That was a lie. He had interviewed Phillip Day in March 99, not for the purposes … well, and he had taken a statement and he had information that he was present and confirmed the existence of a phone call.
But Detective Loone deliberately, the defence say, misled the inquest about that, or lied to the inquest, and that it was deliberate. Because Detective Loone had formed a very firm view about the guilt of the accused, so if it didn't accord with that theory, he was not disposed of or was not going to inform any authority about that statement.
HIS HONOUR: I understand you are critical of Detective Loone but could we revert for a moment to the note of which either Pendergast or Gill was apparently the author. Do you suggest that Pendergast and Gill corruptly declined to include a reference to the fact that Mr Hutcheon had advised them of the Gladesville sighting?
DAVID: I say that I suppose the short answer is yes, your Honour. In the sense that …
HIS HONOUR: Was that put to Detective Pendergast?
DAVID: Yes, it was.
HIS HONOUR: In terms of corruption.
DAVID: I don't know that I used the word 'corruption', but I certainly put to him that he had omitted from …
HIS HONOUR: What was his response?
DAVID: That he had omitted it. His response was that …
HIS HONOUR: But could we go to it? You have got that at your fingertips.
DAVID: Yes.
HIS HONOUR: You can take me to that?"
The relevant evidence given by Detective Pendergast was as follows:
"Q. I want to suggest to you that you deliberately ignored what Lynette and Ross Hutcheon had said about their sighting of Lynette Dawson because it did not suit your case theory?
A. They didn't give me any information of any sighting of Lynette Dawson because if they had, I would have included it in the running sheet and I would have taken a statement off them because that would have been firsthand information and I would have welcomed that information, not rejected it.
Q. Is it the case also that Lynette Hutcheon also told you during that meeting with her and Ross Hutcheon, that her mother's friends or acquaintances had also seen Lynette Dawson?
A. No, I don't recollect that at all. If they had I would have included it in the running sheet or my notes.
Q. Did Detective Loone ever tell you that he had formed a view that or tell you that he had decided not to concern himself with anything that might suggest that Lynette Dawson was alive?
A. He never said anything along those lines at all."
The discussion continued:
"HIS HONOUR: [Detective Pendergast] says that if the Hutcheons had told him anything about a sighting, he would have included it in the running sheet and taken a statement from them, because that would have been firsthand information and he would have welcomed it, not rejected it. He says a similar thing in the following question and answer. Certainly that answer conforms to the note that he did make.
Why do you say I should disbelieve him?
DAVID: I do say your Honour should disbelieve him.
HIS HONOUR: All right, why?
DAVID: Because the manner in which … Detective Loone was in charge of the investigation and Detective Loone, together … well, there is a persistent and consistent theme throughout their investigation of failing to record information that assists the accused and Detective Loone … I come back to … also agreed in relation to the notes that he took with Helena Simms, that the only thing that he recorded in that was the name of Phillip Day. That is, on his one interview with Helena Simms, which didn't lead to the taking of a statement or a recorded interview.
HIS HONOUR: But in relation to Detective Pendergast, he certainly interviewed Mr and Mrs Hutcheon, did he not?
DAVID: We say that the objective was not to interview them; it was to go and take a statement from them. It was to generate conversation within the family for the purposes of telecommunication, you know, hopefully to find some evidence of them.
HIS HONOUR: Did it generate a conversation?
DAVID: It did generate conversation.
HIS HONOUR: And did that conversation that it generated make reference to the sightings?
DAVID: No, it didn't make reference to the sighting, from Lynette Hutcheon, no.
HIS HONOUR: Or from Mr Hutcheon?
DAVID: There was no conversations with Mr Hutcheon generated.
HIS HONOUR: Well, Mrs Hutcheon confirms later that it was mentioned. The Crown says well, a sighting would have been, if I can say so, dynamite, would it not? The Crown says the failure of Lynette to mention the sighting in the conversation is consistent with Detective Pendergast's note that doesn't record a reference to it.
Now, that may or may not be true but it is the Crown case that you are responding to. What is your analysis of that that helps me to reject the Crown's proposition?
DAVID: My analysis is that they rejected any information that was consistent with the innocence of the accused."
Detective Loone was also cross-examined along much the same lines:
"Q. Do you agree that it is important to consider evidence even if it is inconsistent with your case theory?
A. Yes.
Q. And your case theory in this case was that Lynette Dawson was dead, do you agree?
A. Yes.
Q. And your case theory was also that Christopher Dawson had killed her?
A. Yes.
Q. You were incapable, weren't you, officer, of looking or considering any evidence outside of that?
A. I disagree.
Q. Just coming to the issue of your capacity to look beyond your own case theory, do you agree that in your opinion you put no credence or … sorry, I withdraw 'opinion', that you put no credence on any suggestion that Mrs Dawson had been seen after 8 January 1982?
A. That's correct.
Q. So, again, you were incapable, weren't you, of looking beyond your own case theory?
A. No."
Detective Loone was specifically cross-examined about why he did not take a statement from Phillip Day:
"Q. You knew that the Northbridge Baths was a critical point in time, wasn't it?
A. Yes.
Q. But yet you never took a statement from Phillip Day when you went to see him, did you?
A. No, I took handwritten notes of our meeting with him.
Q. He was a principal witness, Mr Loone, wasn't he?
A. He was there at the baths at the day, yes.
Q. A day that you already accepted was a critical day in this case?
A. Yes.
Q. You visited him on two occasions, is that correct?
A. I think it may have been one occasion. It was myself and Sergeant Linden, yes.
Q. You spent some time with him, enough to take reasonable notes. You spent reasonable time with him, didn't you?
A. Look, he was busy and I think we went and spoke with him first of all to get his version of what happened on that day and I took handwritten notes.
Q. When it is somebody that might assist Mr Dawson, you have this way of saying 'his version'. That is just not evidence in your opinion, is it, his version, of Mr Day?
A. Well Mr Day was there.
Q. Mr Day was an important witness, you failed to take a statement from him?
A. I didn't take a statement that day, no, I took handwritten notes.
Q. Do you accept that what he said corroborated what Christopher Dawson had told you? Sorry, what Christopher Dawson had said in his interview about which you were aware?
A. Well, that is in the handwritten notes, yes.
Q. Why didn't you take a statement from him though?
A. We had organised I think at a later stage to take a statement from Mr Day.
Q. You never took one though, did you?
A. No, we didn't.
Q. Not interested enough to take one, that was the case, wasn't it, you were not interested in taking a statement from Phillip Day, were you?
A. It wouldn't have been the fact that we were not interested, it was the fact that there were timing restraints, other duties called upon us to do certain other things and I think my memory from Sergeant Pendergast was we were going to back to get a formal statement from him at some stage.
Q. Do you agree that it would have been very easy for you to take a recorder to see Mr Day and ask him would he agree to participate in some kind of a recording?
A. Yes.
Q. But you didn't do that, did you?
A. No.
Q. Because you were entirely uninterested in anything that he had to say?
A. No, that's incorrect."
Mr Day ultimately provided a statement. Detective Loone was asked about that:
"Q. And do you agree that that is a statement to the coroner?
A. Yes.
Q. And do you agree that you did not take that statement?
A. That's correct.
Q. In that Mr Phillip Day said at paragraph two:
'I have been interviewed by police officers in relation to this matter in 1991 and again about two years ago and on both occasions notes were taken of the interview. However, I have never been requested by the police to sign a statement relating to the disappearance of Lynette Joy Dawson'?
A. Yes.
Q. So it was only as a consequence of someone else providing a statement to the coroner that Mr Day's knowledge of this matter became known?
A. Yes.
Q. And you did nothing to ensure that information from Phillip Day would be presented to the coroner, did you?
A. Well, I took notes on the day that we went and spoke with him and that's all I can recall. If it wasn't in the brief then it wasn't in the brief to the coroner.
Q. It wasn't in the brief to the coroner, was it, you know, that don't you, Detective?
A. From 2003 I can't tell you what was in the brief. There was a large amount. If those dates were in the brief they would have been in the investigation but if it was important … well, I will … if Mr Day … all I can say, if it was anything it would have been in the brief.
Q. I am suggesting to you that it was important and you did nothing whatsoever to ensure that it was in the brief?
A. (No answer).
HIS HONOUR: Sorry, I am not following; did nothing whatsoever to ensure that what was in the brief?
DAVID: Any statement from Phillip Day was in the brief?
A. Well, there was no statement taken from Mr Day so it wasn't in the brief, no.
Q. And you did nothing to inform the coroner of the existence of Phillip Day, did you?
A. I'm just trying to remember my statement. I don't think so, no.
Q. When you went to see Phillip Day on 3 March 1999 you had telecommunications intercepts, you had a telecommunication intercept warrant in place, didn't you?
A. We may have, yes.
Q. If you can accept from me that at that time you did?
A. Okay, I will accept that.
Q. And that at that time I want to suggest to you that your purpose in going to see Mr Day was to stimulate conversation on the telephone with Christopher Dawson?
A. Perhaps, yes.
Q. Pardon?
A. Yes.
Q. And that was the primary purpose of you going to see Mr Day, wasn't it?
A. I would imagine, yes.
Q. So the primary objective of visiting Mr Day on that day was to endeavour to create a situation where you were hopeful that Christopher Dawson would talk on the phone and inculpate himself?
A. Yes.
Q. You treated, didn't you, anybody associated with Mr Dawson as unworthy of taking a statement from?
A. No."
This evidence should of course be compared with what Mr Day said in his evidence on 27 February 2003 at the coronial inquest:
"Q. …You said earlier that you had been interviewed by Detective Sergeant Loone. Can you recall when that was?
A. I think it was - it was the first term, I was Acting Deputy Principal at Sydney High. I remember being in the deputy's office and there were lots of interruptions - 2000? About late February, early March 2000.
Q. Can you remember what the interview consisted of?
A. It was a fairly thorough interview. Basically how long I'd known Chris and Paul and Lyn and the events surrounding January 8, January 9 and since - January 8, January 9 sort of 2000 - no, sorry, 1982, yeah.
Q. And certainly you discussed with Detective Loone your presence at Northbridge pool on 9 January?
A. I did.
Q. So it wouldn't be correct for Detective Loone to say that he didn't know that you were present with Chris Dawson on 9 January?
A. No, that wouldn't be correct."
Detective Loone was reminded that a psychic had been consulted at one stage of the investigation. He was asked about that:
"Q. Also, prior to lunch, you were asked some questions about the occasions that you utilised the services of Debbie Malone and I know you indicated that it was not something arranged by you?
A. No.
Q. But nevertheless you considered it, didn't you, to be an investigative tool?
A. I wouldn't say a tool, I would say more comfort for the family.
Q. The circumstances involved in engaging the psychic involved you attending at the home of Pat Jenkins earlier that day, didn't it?
A. Yes.
CROWN PROSECUTOR: Your Honour, I object to the relevance of this. Nothing came of the matter. It goes nowhere. It is irrelevant to the facts in issue.
DAVID: I will be very brief, your Honour, but it does go to the focus of the investigation and the failure to conduct some steps.
HIS HONOUR: The engaging of a psychic will inform the failure to take investigative steps, you say?
DAVID: My submission will be that it will inform this honourable Court about the priorities of the investigation which were not adducing exculpatory evidence."
Finally for present purposes, but by no means to the exclusion of other cross-examination to a similar effect, Detective Loone was asked about the Rockcastle Private Hospital:
"Q. You don't have any idea, do you, of what inquiries were made of the Rockcastle Hospital?
A. Well, I do because I do recall what Pendergast said to me at some stage later.
Q. There is no record by you of any inquiry that you conducted at the Rockcastle Hospital, is there?
A. No.
Q. You did not take any statement from anybody in relation to the sighting at the Rockcastle Hospital, did you?
A. No, I didn't.
Q. And you did not take any statement because you considered at the time that Lynette Dawson was under the pool, didn't you?
A. No."
It can be accepted that Mr Dawson is extremely critical of the police investigation, as these examples of Ms David's cross-examination and associated submissions make plain. On one view of the matter, these criticisms would appear to have some force. However, unless I am mistaken, exposing deficiencies in the police investigation would not, standing alone, avail Mr Dawson in his response to the Crown case unless the deficiencies could be shown to correspond, directly or by inference, to some forensic disadvantage, substantial or otherwise.
For example, Detective Loone was officially tasked as the officer in charge of the investigation on 21 July 1998. He and Detective Pendergast met with Mr Day on 3 March 1999. In the events that occurred, of which Mr Dawson is understandably critical, Mr Day became a witness at the coronial inquest in 2003. However, the alleged failures by the police to treat Mr Day with the importance that Mr Dawson says he had, and which he undoubtedly did have, does not clearly emerge as something that was productive of an identified forensic disadvantage.
Similarly, in relation to the Rockcastle Private Hospital, as the evidence makes plain, the hospital records had been lost by no later than about 1990, some several years before Detective Loone assumed control of the investigation. I accept that Mr Dawson contends that these records could and should have been located earlier. However, alike with the analysis concerning delay, it is not inevitable that the absence of the hospital records is disadvantageous to Mr Dawson.
Exhibit AU is a schedule summarising Detective Loone's investigation. His involvement ended in July 2015. Mr Dawson was not arrested or charged with the murder of Lynette Dawson until three and a half years later. Even accepting Mr Dawson's contention that Detective Loone had formed a view that Mr Dawson had killed his wife, and consciously went out of his way to ignore evidence that may have assisted him, the assembling of only inculpatory material was not considered sufficient to charge Mr Dawson before the brief left Detective Loone's supervision or for some years thereafter. Moreover, once again bearing in mind that Mr Dawson has no obligation or onus to prove or to disprove anything, my attention has not been drawn to anything that has been overlooked or ignored that could or would or should have been identified by a notionally objective and impartial investigator in place of Detective Loone. Accepting the fact, by way of example, that the coroner was not provided with details of the alleged sightings, an important deficiency in itself, it nevertheless did not carry over with effect to this trial in which all of the alleged sightings were the subject of detailed evidence before me. Additionally, accepting that Detective Loone deliberately misled the inquest, an allegation that he does not concede, he was available to give evidence in this trial and his alleged deficiencies were comprehensively explored.
The burden of Ms David's submission is that Detective Loone, and those he directed, were far from disinterested investigators but were instead individually and collectively intent on turning a blind eye to anything that might have assisted Mr Dawson. Even assuming that to be true, I am still left to speculate about what an objective investigation would, or even might, have revealed that has otherwise not turned up. For example, Mr Day, the Breeses, the Hutcheons and the Butlins all eventually contributed to this trial. While I appreciate the logical and practical difficulty of identifying something that is not known, speculation about its existence does not reliably assist a conclusion that a significant forensic disadvantage has been occasioned by its absence. Moreover, there is a strong likelihood that possible gaps in the evidence that resulted from a less than perfect police investigation would have been filled as the result of the public notoriety of this trial and the expectation that witnesses, such as Mr Silkman, Mr Cooper and the Rockcastle Private Hospital nursing staff, might have come forward with information.
The police investigation up to and including 2015 was on one view arguably lackadaisical. I have taken account of that throughout my deliberations in this trial.
[84]
Comment
It is also a fact that Mr Dawson's application to stay this trial has proceeded unsuccessfully to the High Court of Australia. I take it to be a reasonable assumption that any matter that could possibly have represented a fundamental impediment to Mr Dawson receiving a fair trial would expressly or by necessary inference have figured to some extent in that process. The extensive delays since 1982 and the arguably less than perfect police investigation are artefacts of the trial that has proceeded before me. They have neither alone nor in combination with other factors, such as adverse publicity, led to the trial being stayed. I understand that they are ever present factors to take into account. It cannot, however, be assumed that the problems that they create exclusively assist or disadvantage only one party.
[85]
Teacher's pet podcAST
In her opening to me on day three of this trial, Ms David made two references to this programme:
"It is not in issue that the relationship between Christopher Dawson and JC had feelings that did extend over a period of time in the lead up to the disappearance of Lynette Dawson, but, although I am sure your Honour has kept well away from the media reports in this matter, I would make the point that the suggestions about the relationship just clearly … even the name The Teacher's Pet, it is the defence position that the relationship between them and the relationship between the accused and his wife bore no resemblance whatsoever to the monstrous and inaccurate portrayal in some of the media, most notably The Teacher's Pet podcast."
Mr Dawson also tendered the first and third episodes of the podcast. Despite those references and that tender, no specific mention of any sort was made by Ms David in her closing submissions to this programme in terms or to what if anything I should make of it. Ms David did refer to the relationship between BM and Hedley Thomas in her closing submissions as follows:
"[BM] expressed a very fixed view, she had a very long relationship with … she considered Mr Thomas a friend, they were both very much minded to ensure that Mr Dawson was convicted, that was their objective."
There were, however, multiple general references to the podcast throughout the trial, and Hedley Thomas was called as a witness. Ms David also regularly and at length cross-examined witnesses who had been involved in the podcast in cooperation with Hedley Thomas to suggest that their closeness to him was either productive, or symptomatic, of a predisposition against Mr Dawson and that their evidence was fatally or fundamentally flawed as a result. I have previously referred to these references and to some of the challenges made on Mr Dawson's behalf to the credibility and reliability of evidence said to be infected with the Teacher's Pet influence.
Several, but not all, of these witnesses were presented in the witness box with audio recordings of conversations between them and Hedley Thomas: Julie Andrew, Anna Grantham, Annette Leary, Robyn Warren, BM, PS and SOW. Some of these conversations should be noted.
I have earlier referred to Julie Andrew's frank concession concerning her opinion about Mr Dawson's involvement in the disappearance of Lynette Dawson. That concession was made in the context of recorded conversations with Hedley Thomas, part of which included Ms Andrew saying the following:
"Oh, we will. Well, you know, we have to enjoy this moment of euphoria for what it is and then, you know, get down to the business of getting him found guilty, you know. So, this is just the beginning, this is just- to me, this is kicking the big goals but not winning the game because winning the game will see him convicted. To be held accountable, to spend the rest of his life, um, you know, in a prison. I mean, her life was taken from her - his life should be taken from him. Um, so we've got to keep our eye on the prize, which is the conviction. But, um, did you have an inkling? Because I've just had a feeling over the last few weeks."
Further conversations were played, most of which included discussions between Ms Andrew and Hedley Thomas about the prospect that his podcast may become a mini-series, or its equivalent, and what actors may play the various parts. The tone of Hedley Thomas' representations to Ms Andrew was one of flattery and charm. Her responses struck me as somewhat coquettish, which was not in keeping with the strong woman I observed in the witness box. Nothing that Ms Andrew's discourse with Hedley Thomas revealed about her caused me to alter my view that her description of the trampoline incident was credible and reliable.
I have already expressed the opinion that I do not consider Anna Grantham's evidence concerning the poolside incident to be reliable. Nothing in the conversations she had with Hedley Thomas causes me to alter that opinion.
Annette Leary was played the following portions of a recorded telephone conversation she had with Hedley Thomas:
"AL: … so you know she was in … you know … a deep hole
…
HT: Why do you think for so many years she was treated as a missing person without any suspected foul play?
AL: I can't … I can't imagine why it was. We were upset that it was treated that way. We don't know if her husband was able to … you know … hoodwink the police in being a lovely husband … and he was upset that she had gone. You know he was lying as hard as he could go.
…
HT: And what's your view of Chris Dawson as a school teacher having a sexual relationship as we know and is absolutely factually true, with a sixteen year old student who he then moves into his home, and puts her in a spare bedroom next to his wife and his children, and pretends that she is a child who needs support?
AL: How awful. What a horrible man. I can't believe that someone could feel right about doing that. Horrible …
…
AL: … the time when Chris attacked Lyn next to swimming pool, which wasn't all finished, it was only paved … not paved or anything yet. And he wrestled her to the ground and had her face in the mud. And she told Anna about that. I didn't hear about that until Anna told me but the neighbour was the one who actually saw it and told Anna.
…
AL: … it's terrible to think that that man got away with it. I'm terribly sorry but I believe with my heart that he got rid of Lyn.
HT: Is it normal for you to accuse a man who hasn't been charged with anything, of murder in a system that we have where, you know, everybody is entitled to a presumption of innocence until proven guilty. Is this a significant, kind of, stretch for you to be doing that in this situation?
AL: I wouldn't call it a significant stretch. I think it's something you come to when to when you seen what had happened, what had been said, and you just knowing the person well…
…
AL: It must've been in that Christmas week, either before Christmas or after it.
…
AL: Lyn was just closing everything down, shutting all the doors, fixing up the paperwork, and she was like a normal mum clearing up, going home, its Christmas."
I have earlier concluded that Ms Leary's account of observing bruises on Lynette Dawson's neck on the afternoon of 8 January 1982 is unreliable. Ms Leary is quite clearly morally predisposed against Mr Dawson. Her opinions are replete with references to matters that she did not personally observe. I remain unable to have any confidence in the suggestion that the incident as described by Ms Leary ever occurred.
Robyn Warren agreed in her recorded telephone conversation with Hedley Thomas that she received a telephone call from Mr Dawson inquiring about Lynette Dawson's whereabouts. She confirmed Mr Dawson's description of the events of 9 January 1982, including that he dropped Lynette Dawson with shopping bags and that he expected her to turn up at the Northbridge Baths later that day. She also confirmed that she had never seen any acts of violence from Mr Dawson towards Lynette Dawson.
Part of what passed between Ms Warren and Hedley Thomas was the following:
"HT: Yeah. And do you recall, before the obvious troubles began with [JC], do you recall any innuendo or concerns, rumours about Chris being involved with other girls or other women?
RW: No. No. It was just all good friends having a good time until that [JC] came on the scene and everything changed. Until I remember Lyn coming to my place one day- because, see Hedley, she didn't drive- she was very isolated up there. It was a very isolated spot to live and I don't even know where the buses were. I had no idea all that time back because to get to Gilwinga Drive right up the top there- it, it, well you could get there by car quite easily but by bus, I don't know how you would. I don't know how you would. So, this is what kept going - this is what, one of the main things that went through my mind when Chris, Chris called me at home that time and said, 'is Lyn at my - is Lyn with you?' And I said, 'no, Lyn's not with me, I haven't seen Lyn for a while'. And he said, 'It's just that we're waiting for her at Northbridge Baths, she left the house this morning with some clothes to return to a shop at Chatswood and she hasn't got here'. And my first- well, actually when I think back now - I thought well, how (a) why would he let her leave the house? I don't know where she was going to get any transport from. Uh, she was right up the top there and she had to walk up along quite long streets and a lot of bush land. So, I don't know - unless she'd organised a cab somewhere. So, that, that puzzled me. I thought well, if she was going to Chatswood, he would have had to drive her down, all the way down to Mona Vale."
It will be apparent that Ms Warren was then of the view that Mr Dawson had called her from the Northbridge Baths. That appears to be incorrect, having regard to other evidence that she gave. However, nothing appears to turn upon that for present purposes. Ms Warren's evidence, confirmed in her conversation with Hedley Thomas, is not inimical to Mr Dawson's response to the Crown case.
BM was cross-examined by reference to a recorded telephone conversation between her and Hedley Thomas. Ms David emphasised the light-hearted references in that conversation to actors playing roles in any dramatization of the events as a basis for discounting her evidence. I have already concluded that BM saw the things that she described. I remain of the view that they do not assist me in the resolution of the issues in this trial.
PS spoke at quite considerable length to Hedley Thomas. Extensive portions of the conversation were played to him in the witness box. Mr Dawson also tendered an SMS sequence in early December 2018 between PS and Hedley Thomas from which it appears clearly that they were on very friendly terms, including meeting over dinner for which it appears Hedley Thomas paid. Part of that sequence includes Hedley Thomas saying the following things to PS:
"Hi [PS]
I'm looking forward to seeing you and [name] on Monday evening. One thing though - I think it's important since the criminal charge being levelled that in conversation we steer clear of any evidence you might give. I've asked a criminal lawyer friend for a view on this point and he agrees it will be fine for us to keep the arrangement to meet but prudent that we not talk about your evidence and what you've told me. Where and when would you like to meet for dinner? Cheers Hedley"
It is not practicable to include all of the excerpts of their recorded conversations in these reasons. Nor do I consider it to be necessary. My acceptance of PS's description of the interaction between him and Mr Dawson in the Coles carpark took account of the matters revealed about PS in his Hedley Thomas phone call. I reiterate that PS demonstrated that he was not favourably disposed to Mr Dawson for a number of reasons, not least of which was PS's view of the propriety of a relationship between a teacher and a teenage female student. I remain satisfied that PS's recollection of the incident he described is reliable and credible.
SOW had quite considerable dealings with Hedley Thomas. She was cross-examined about that:
"Q. Do you remember speaking to Mr Hedley Thomas in about 2018?
A. Right, yes, thank you. Yes, I do remember speaking to Mr Hedley Thomas.
Q. On that occasion, there is a conversation with Mr Hedley Thomas wherein you said you spoke to [JC] at a time you thought was about two to three years prior to that conversation with Hedley Thomas?
A. Right, so it was sometime between … so that would have been eight years ago from now. That would be about right. It would have obviously been when I must have either just come here or gone back for a holiday in those first couple of years.
Q. So perhaps about 2015/2016, would that sound about right, if it was two years before you spoke to Mr Hedley Thomas in 2018?
A. I would have thought it would have to be earlier than that because I didn't go home at those times. It would have been between 2010 and when I first came here, and 2014 would have been the only times that I spent any time down where I met … where I ran into [JC].
Q. To be clear, after the end of 1981 and when you saw her somewhere between 2010 or 2014, is it the case that you did not see her in the intervening period?
A. No.
Q. Just to be clear, you didn't see her in that time?
A. Correct, I never saw her between those times.
Q. Just coming back to the issue of Hedley Thomas, you had a number of discussions with Hedley Thomas during 2018, didn't you?
A. Correct.
Q. Would you agree you had in fact 18 conversations sorry, 14 telephone calls with him?
A. I do not know the number.
Q. Do you agree that he left a number of voice messages for you from time to time?
A. Correct.
Q. If I suggested to you that there were 14 actual telephone conversations, would that …
A. Often what would happen is if he called me, I would not be able to speak. So he could have called me and I would say 'I am busy right now' or … so, yes, there could have been 14 conversations.
Q. You had a number of quite long conversations with Mr Hedley Thomas, didn't you?
A. What does 'a number' mean?
Q. If I suggest to you you had a conversation, for example, that went for about 40 minutes, would you agree you had conversations of that length with him?
A. I had a conversation of 40 minutes with Hedley Thomas? If he has that notified, I would say agree.
Q. If I suggested that altogether there was some that overall you spoke to Mr Hedley Thomas for approximately four hours and nine minutes altogether, would you think that would be a fair assessment of your memory?
A. It wouldn't be for me. I wouldn't have thought that I spoke to him for that long.
Q. Did you speak to the police prior to speaking with Mr Hedley Thomas?
A. No, I did not."
SOW said that she thought Hedley Thomas was part of the police investigation and she thought she was contacting the police when she was speaking to him. She thought she was helping the family and was doing the right thing. She was encouraged by Hedley Thomas to listen to the podcast. She agreed that when she spoke to Hedley Thomas, that his idea of justice was that Lynette Dawson had been murdered and it was necessary to put those who had murdered her on trial. SOW's recollection that Mr Dawson had said things like Lynette Dawson "just has to go" or "if only she wasn't around" or "if only she was gone" was never mentioned by her in her police statement, and only emerged after speaking to Hedley Thomas. SOW agreed that she proceeded on the basis that there had been a murder in all her discussions with Hedley Thomas.
SOW also agreed that she told Hedley Thomas that she believed Lynette Dawson was buried under the pool or under the tennis court. She agreed that she was disappointed that the police did not find a body when they excavated. She gave this evidence:
"Q. Did you think that by saying something damning about Chris Dawson it might help to bring the prosecution?
A. No. Absolutely not. I was hoping that the prosecution could talk to Chris Dawson and let him know that he's helping his kids by telling the truth and that their way out is if they give the evidence to say where the body is it would help everybody move on and help everybody be able to, even his own kids and himself, live a better life.
Q. So you want the kids to know that their mother is dead and their father killed her, is that what you want the kids to know?
A. I want his kids to know the truth and everybody to be able to her family to be able to know what happened and that, yes, he did kill his wife or have her killed if that's what happened.
Q. And that's your belief, isn't it, that that happened?
A. My belief is that the truth is known by Chris Dawson and if someone can help him to tell the truth everybody will be able to have a better life."
Unlike Julie Andrew, whose close association with Hedley Thomas did not cause me to doubt her evidence on a relevant point, I have a different view of SOW. I am unable with any confidence, having listened to the extracts of her lengthy taped conversations with him, to know what part of her evidence comes from what Hedley Thomas told her, and what part of her evidence comes from what she remembered. After over four hours of conversations with Hedley Thomas, dissecting the difference is difficult.
Furthermore, one paragraph of the statement that she gave to the police was in these terms:
"I have a memory about a number of conversations that took place in the car between Dawson and Chris Dawson. The first conversation is when Chris Dawson says, 'We don't have to worry about her anymore'. I cannot say whether or not this is something I remember being said in the car when I was present or if it is something I have since been told was said by someone else. It is too long ago to know if it is my memory or something I've been told."
Without wishing or meaning to be unfair to SOW, my very distinct impression is that I cannot be sure that her concern about what she remembers and what she may have been told does not possibly apply to her evidence more generally. Moreover, SOW's interactions with Hedley Thomas, especially in the context of Mr Dawson's presumed guilt, and the desire to vindicate familial concerns about Lynette Dawson's fate, force me to the conclusion that I cannot accept her evidence on relevant matters as credible or reliable.
Apart from specific and understandable attacks upon individual witnesses in the ways described above, suggesting that the influence of the podcast has neutralised their evidence, Mr Dawson also contended more generally that the influence of the production had potentially permeated the whole trial in ways not readily detectable and for that reason not readily curable. He tendered two episodes of the podcast itself. I have listened to those whilst reading the transcript. Mr Dawson also drew attention to some of the things said by Hedley Thomas beyond the podcast itself. For example, he was interviewed for 60 Minutes on a date that is not disclosed. Hedley Thomas expressed the following view about Mr Dawson:
"I think he is a despicable person. I think he is severely narcissistic. I think that he's dangerous. I think that he's lying to himself, lying to his daughters, his friends, his family and he has been for a long time."
Mr Dawson tendered other material that included examples of Hedley Thomas expressing the same or similar views. It is unnecessary to refer to these in detail, although they included conversations with Patricia Jenkins, Robyn Warren and Kay Sinclair. It is sufficient to observe that Hedley Thomas' views about Mr Dawson are well known, received significant publicity in his podcast and elsewhere and have the potential to influence literally millions of people. I have no difficulty accepting the submission that Hedley Thomas' views and opinions about Mr Dawson have become very widely known and that some witnesses in this trial have enthusiastically endorsed them.
As aware as I am of that argument, it is extremely difficult to give effect to it other than in a general way. This trial has proceeded notwithstanding extensive publicity, including the wide dissemination of the podcast. That is a circumstance over which I have no control. It seems to me that I can do no more than remain constantly vigilant to ensure all evidence is scrutinised closely and that sight is not lost of the possibility, or on Mr Dawson's contention the probability, if not the certainty, that the Teacher's Pet podcast may in whole or in part have completely deprived some evidence of its usefulness.
Before leaving this topic, I should note that Mr Dawson tendered more than 200 pages of transcript from proceedings conducted in this Court between 16 and 20 July 2020 before Fullerton J on Mr Dawson's application for a permanent stay. The transcript records, and is limited to, the entirety of the evidence in those proceedings given by Hedley Thomas. Despite the tender, I was not taken to this material in final submissions on behalf of Mr Dawson.
I have read all of this material. There are several themes advanced in the examination of Hedley Thomas by Mr Boulten SC. Included among them is the proposition that the Teacher's Pet podcast presented a less than balanced view of the facts that it examined. I have taken this material into account in my consideration of the way in which the podcast may have corrupted evidence given in these proceedings.
[86]
Exhibit 35
I have already referred to the fact that Mr Dawson was legally intercepted speaking on the phone to a number of people between March 1999 and November 2018. These calls were recorded and the transcript was tendered by Mr Dawson, along with the audio which was played in court. Despite this tender, Ms David drew my attention during her final submissions to exhibit 35 on only five occasions.
The first was a reference to the conversation between Mr Dawson and his brother Gary on 12 September 2018 in which they discussed the suggestion in the podcast that JC may have been wearing Lynette Dawson's clothes. I have discussed this elsewhere in these reasons.
The second is a reference to a conversation between Mr Dawson and a person called Mark on 6 June 2013 when Mr Dawson said this:
"I'm supposed to - but to re-enact all these scenes, I was supposed to have got Lyn drunk while I had it off with [JC] or whatever, he [sic] wasn't a drinker. Her father was an abusive alcoholic so she had a real thing about drink anyway, and she wasn't a drinker, so how I'm supposed to have got her drunk, you know, you know, just the whole thing. Bloody…".
The third is a reference to PS, to which I have earlier referred at [380].
The fourth is a reference to a conversation between Mr Dawson and his brother Paul on 27 April 2013 about Ms Hardiman's sketches as follows:
"Ms Hardiman's sketches we say that is also problematic. These sketches are referred to in a number of calls but, in particular, in the 2013 call, number 55 in the 2013 call in exhibit 35, where the accused discusses the artist with his brother Paul, and they keep referring to the artist as a male. So it's quite clear that the memory of the accused is he doesn't have any real recollection of that. And one would think so; I mean, at the time, in the 2013 calls, it was 20 something years later, but now it's some 40 years later."
The relevant extract from the phone call transcript is in these terms:
"Paul: Well, have a look at it, anyway. I mean, you might even have the sketches somewhere, or might - you might have received the sketches, for all I know.
Chris: Just like caricatures, sorry, the - we - we - I - I don't know, I can't even remember - I really can't.
Paul: Yeah, so, have a look, anyway. But - but, the thing is, if a guy turned up with sketches that had been done you would have paid for them and - and taken them anyway.
Chris: Yeah.
Paul: I would have thought - anyway. Who knows, who cares? All right. Enjoy your weekend. What are you doing today?"
The fifth is a general reference to the phone calls in response to my inquiry of Ms David about what she contends I should make of them:
"DAVID: Your Honour, the defence submit that your Honour has had some opportunity through the witnesses to have an insight into the lifestyle and the type of man that Christopher Dawson is, including through some of the footage that your Honour's seen and through a lot of the calls that your Honour has heard which really do date from 1999. Although, in relation to those calls, that some of those calls do indicate that the parties know that they are being or may be being listened into. The defence submit that it does not detract from the content of those calls in a number of ways.
HIS HONOUR: Why?
DAVID: Because they are clearly very spontaneous in the way that they refer to a number of the accusations, particularly around the time of the podcast. They are a direct response, for example, to the podcast. In 1999 there's nothing to suggest they even have any idea …
HIS HONOUR: Some of the phone calls make it clear in terms that the parties to the phone calls knew that the phones were off.
DAVID: Yes, or thought they were off, yes, or might have been, yes.
HIS HONOUR: Well, it doesn't matter, does it? If they thought they were off, they were off for the purposes of the question I'm about to ask you. Doesn't that in any case, not this one, but any case, mean that you have to consider that words that were used and the subject matter of the conversations in that light?
DAVID: Yes, the defence accept that your Honour would, however, we ask that your Honour also consider that often they are very spontaneous. You could tell by the voice they're concerned. They are denials and they are consistent and had been even at the point in 1999.
HIS HONOUR: Let me ask you this and this is a different question. You played all of these intercepted phone calls in exhibit 35 …
DAVID: Yes.
HIS HONOUR: … in your case. What do I get from them?
DAVID: Your Honour gets, we say, denials which are spontaneous, an attitude from the parties or from Christopher Dawson or from all the parties that they are interested in assisting the police to locate Lyn Dawson; comments about some of the evidence. Well, there's responses, direct responses, to some of the evidence, and that is some that I have spoken about this morning to [BM], to [PS], Ms Hardiman and responses to [JC], a consistent response which is that Christopher Dawson's belief is that this occurred and it was fabricated because of what [JC] not wanting to return to Queensland, and that your Honour … we say that they are consistent accounts over a period of time and also give your Honour some insight into how the accused speaks his responses, an insight really into his character as well, and also his concern and there are repeated denials just as in the interview…
…
DAVID: … They talk about the sightings, discussions. They assist, we say, also, your Honour, to put into perspective what Christopher Dawson's ever said about the sightings in the sense that they just don't know whether … it was not Christopher Dawson just simply saying, 'Well, she's been sighted,' and words that have come from him. They discuss what they know about or he discusses what he knows and what people have said we say consistently over that period of time. They talk about the Sue Butlin sightings, what was said about that; what he had ever said about the religious guy; talk about the denial of ever getting, for example, Lynette drunk, and that is I think a 2013 call; denies violence against [JC]; denies ever grabbing Lyn by the throat. Again, that is the Annette Leary account, and I think there's a direct response to that. He refers to Robyn as being one of Lyn's only good friends. He denies the [BM] accusations and casts some light on their views of [BM]. He welcomes the dig at Bayview. He talks about the accusations resulting in the custody battle. He described the tea towel incident as playful and he denies, as he has done in his interview, that anything of the sort about the hitman allegation or any suggestion obviously hearing it on the podcast as to his knowledge of Neddy Smith. So he gives some insight and we say some consistent accounts of the evidence against him, including evidence that is before this Court. The defence say that he is entitled to rely on that evidence. I mean, even though they are calls that he didn't know whether they were being taped, but he's quite open and obviously quite agitated or at times in hearing and quite disturbed by what he's hearing and the reactions are very natural.
Your Honour would form your Honour's own view but on listening to them they are not contrived. These are quite direct responses and very personal calls about his views and his feelings about the allegations made against him."
As Ms David's submissions uncontroversially accept, Mr Dawson was aware or suspected at least on some occasions that his telephone had been bugged. For example, in the conversation on 6 June 2013 between Mr Dawson and Mark, the following is recorded:
"Mr Dawson: Loo, his name's Loone, we call him Looney, they - they bug our phone well, well, you know, probably this phone call's probably bugged 'cause they - they bug our phones and that every so often too."
In the conversation on 9 September 2018 between Mr Dawson and his brother Paul, the following is recorded:
"Paul: We're about to get - we're being tapered [sic].
Chris: Yeah, I know. Supposedly. Yeah. I don't care.
Paul: Yeah, all right…
Chris: Yeah, okay. Hedley, you - you're a fucking wanker. If they want to - the police want to pass that on to Hedley Thomas."
Then in the conversation on 12 September 2018 between Mr Dawson and Justin Cranmer, Mr Dawson says, "Well, they've got our phones tapped".
None of the recorded phone calls prior to 6 June 2013 gives any indication that Mr Dawson was aware that his conversations were being recorded. I am therefore not prepared to conclude that he was. Conversely, although I was not provided with competing submissions on the point, a not unreasonable inference arises that from at least 6 June 2013, Mr Dawson knew that there was a possibility that this was so. The inference is somewhat stronger with respect to the conversations that are recorded in 2018, commencing with the call between Mr Dawson and Paul Dawson on 6 September 2018.
It is clear from the terms of the 2018 conversations that they reference the podcast. Hedley Thomas is mentioned. Things that obviously feature in the podcast are also discussed. I have earlier concluded that Mr Dawson's reference in his conversation with Gary Dawson to being in contact with Lynette Dawson six to eight weeks after her disappearance is a lie. That is not a matter that is presently significant. The portion of the conversation upon which that finding is based is not included in exhibit 35 but was tendered by the Crown as exhibit CH.
It is submitted on Mr Dawson's behalf that these conversations are consistent with innocence. They contain no admissions. They are replete with indignation at the suggestion, either generally from police inquiries in early 1999 or from the specific allegations against him in the podcast, that he would or could have had anything at all to do with his wife's disappearance. Mr Dawson consistently professes his innocence. Everything he says is consistent with the response he makes in these proceedings to the Crown case.
It may on one view be said that little value can be attributed to anything said by Mr Dawson to others if he was aware that his conversations were being intercepted. The suggestion may be that his representations are in those circumstances so obviously self-serving as to be of little or no weight. Conversely, Mr Dawson cannot be criticised for discussing matters that were obviously important to him in a way that contradicts his perception of the allegations that are raised against him. Even if Mr Dawson were intentionally broadcasting his position to a wider audience, it is not something that can only be used against him. The Crown has not contended that I should take a different view.
Exhibit 35 is relied upon by Mr Dawson in response to the Crown case. I consider that it is favourable to him. The several telephone conversations are a collective circumstance to be taken into account in assessing whether or not the Crown has established his guilt to my satisfaction beyond reasonable doubt.
[87]
Exhibits G and ay - hearsay evidence direction
In R v Qaumi & Qaumi (No 12) [2017] NSWSC 134 at [35]-[36], Hamill J said this:
"[35] Where hearsay evidence is admitted (particularly for a hearsay purpose, that is, to prove the truth of the hearsay statement) a jury may be warned that hearsay evidence may be unreliable [Section 165(1)(a) of the Evidence Act 1995]. I must take such a warning into account in dealing with the matter by judge alone [Section 133(3) of the Criminal Procedure Act 1986]. However, because the evidence is relied upon by the accused, it is appropriate to temper the warning to a degree.
[36] I take into account a warning that would be given to the jury that the evidence of the various hearsay statements (made by witnesses who did not give evidence) may be unreliable. I take into account that such evidence was not given in the presence of the parties, was not given under oath and was not subject to cross-examination. The extent to which it was accurately or comprehensively recorded is uncertain. Mostly, it was derived from entries on the police computer or from notes made by police officers who interviewed various people who refused to give evidence or were not otherwise called. In many instances the evidence was self-serving. It is for those reasons that the hearsay evidence may be unreliable."
Exhibit G is a collection of diary notes and letters written by Mrs Simms, Lynette Dawson's mother. Exhibit AY is a statement written by her and supplied to Mona Vale Police on 21 August 1982. That document is as follows:
"As requested I am forwarding a statement about the disappearance of my daughter Lynette Joy Dawson. My daughter had been uptight and very tense over the latter months of last year, she, her husband had struck a bumpy patch in their marriage and partnership of 17 years, complicated by the taking in of a teenage student seeking help.
She had babysat for them, my daughter offered her hospitality in good faith, which she later regretted when she caused her much anguish.
Dec 22nd Chris left Lyn + the two children. She had expected him to pick her up after work, came home after waiting to 6pm to find a 'goodbye' note + 'not to paint too black a picture of him to the children', if I remember what Lyn told me correctly. He came home on Boxing Day + followed 2 rather tense weeks, I understand a visit to a psychiatrist on 8th Jan which relaxed them somewhat, the baby was disturbed during the night + Lyn broke down, so Chris told me, took herself into the bed in the study, where I guess she stewed in her misery. Chris said she arose early, did a load of washing, cut lunches for them to take to the Pool, was very calm, apologised for her breakdown and asked to be driven down to the Bus at 7am for Chatswood + she was to have come back in time to have lunch with them at the pool. She was wearing shorts + carried 3 plastic shopping bags saying she wanted to return some clothing at Chatswood and probably would go onto Paddy's Markets. I arrived at the pool at 2pm to have a swim with them and was met by a very agitated Chris wanting to know if Lyn had contacted me.
At 3pm he received a telephone call + came back to me on the seat visibly affected. It was an STD call from Lyn saying she needed some days to sort things out, was on the Central Coast with friends (no idea who it could have been) was alright. That was January 9th.
Lyn had an appointment with Dr King, Dee Why an eye specialist to have new contact lenses fitted as she had a credit for them for $138. She did not keep it. I have recently cancelled the credit with OPSM sanctum.
Sunday 10th Lyn contacted Chris again saying to let Barbara at Warriewood Child Minding Centre know she would be off a week owing to illness. Chris reminded her to ring me + said she would contact Chris + myself on Wednesday 13th.
Tuesday 12th She came back to the area and purchased an article on the Bankcard for $16, I guess a cardigan as she had nothing with her, although Chris said her Uniform for nursing was not there, although her papers were.
Wednesday 13th I waited in all day for her call which didn't eventuate, Chris's didn't either.
Friday 15th I had a call from Chris around tea time saying he had heard from Lyn. He couldn't recall if there had been 'PIPS' but she said she was NORTH and needed more time, he got annoyed + said 'How much more bloody time do you need?' He asked her not to hang up as she said she wouldn't come home if he spoke like that, Chris said ring your Mum + she said she would when she felt she could. He asked her to come home we all needed her + she said, 'I can't'. That was the last time we had contact with her, all this conversation was relayed to me by Chris as soon as she had rung him.
She used the Bank Card again on the 26th to buy a pair of Jeans but that was the last time as the account used to go to the Warriewood Child Minding Centre + they would notify Chris it was there.
I have contacted the CS Bank Narrabeen but her book has never been operated on.
The Bank Card No is 496 62 205 014186 and addressed to the Child Minding Centre Warriewood. I tried to find out if she had opened another one with a new address but they would give no information as I was not the holder. I contacted the Warringah Shire Council who run the Centre, to see if she had her Group Certificate Address changed but it has gone to the Bayview address.
I have contacted the Nurses Registration Board Sydney twice but she is not currently registered.
The Queensland Registration Board also have no one on their books under the name of sister Lynette Joy Dawson, Lynette Joy Simms or Lynette Joy Hewett-Simms in which name she trained at the Children's Hospital, Camperdown. Chris said he was unable to find her white uniform at home. Over this period of time I have rung many Hospitals. Also called at many Hospitals but I have learned she cannot work in them as far as I can ascertain unless she is registered.
I have written to Senator Baume as she worked as his nurse when he was practicing and had Doctors room at the Medical Centre opposite Royal North Shore Hospital. I thought she may have approached him for a reference. I still wait to hear from him if he isn't too busy.
End of April-May I put an ad in the Manly Daily for a week as a lady whose child she minded in the centre said she saw her standing in the Narraweena shop centre near a car. Barbara showed her a snap shot + she pointed Lyn out.
Around about the same time or earlier another friend of Lyn's thought she saw her in a car outside a Fruit place she worked at on the way into Gosford so I put an advertisement 4 times in the 'Central Coast' paper.
It is her birthday on Sept 25th + I intend putting an advertisement in the paper then also. The 'Sydney Morning Herald' and 'Telegraph' in the hope of her seeing it. She didn't drink or smoke, her only 'vice' as such was to wander through the shops + spend unwisely at times. She loved her children, husband + home, family gatherings, going out as a family, first always to ring in on birthdays, but my birthday Feb 1, Mothers Day, her little girls' birthdays July 9-11 all passed + no contact made. It is so totally out of character. The manageress of the WCM centre said Lyn had a very high sense of responsibility in her work Lyn took care of the babies to 2 yrs section.
I have registered with the Salvation Army Missing Persons Bureau, they have had an advertisement in the 'War Cry' on July 24, with no results.
I have phoned the Taxation People, the Social Security People + they tell you they give no information out at all.
She did not drive a car.
Until recently I have held my son in law in high esteem + got along well with him but my faith has been shaken when for all his talk of wanting me to look after his 2 little girls, Lyn 'goes' + he has introduced the teenager back into the home as early as Feb 6, that I heard of it. So if Lyn has been in the vicinity and seen them so often together she has cut herself off from us all totally + completely + I'm sure she can't be thinking straight.
She has a sister living at Seaforth, a brother living at Singleton and a brother living at Newcastle.
No one has had any contact with her or she with them and we are understandably worried for her and her 2 little girls.
I have written this as things have come across to me, it is the best I can do.
March 15 I discovered a Sister LJ Simms was working in Emergency at Royal North Shore Hospital. Chris went to see her but she was off duty. He described Lyn to Doc he knew but it was not her. I rang and spoke to the sister who said she didn't have a sister Patricia. I checked out a Nurse Dawson at Manly Vale Private Hospital and a Nurse Lynette Dawson at Freshwater Private Hospital with no luck.
H Simms"
That letter generally confirms Mr Dawson's description of events. Mrs Simms' statements are hearsay to the extent that they record what she has been told by others, most likely Mr Dawson. I take it to be Mr Dawson's position that he embraces this confirmation by his then mother-in-law of what he said occurred and that any warning that I should give myself should be appropriately tempered for that reason, as suggested by Hamill J in the passages quoted.
Conversely, I warn myself that any hearsay evidence tending to inculpate Mr Dawson upon which the Crown relies needs carefully to be scrutinised lest its unreliability produce an injustice. I have taken these matters into account at all times, especially noting that untested hearsay evidence may be particularly unreliable.
[88]
OTHER DIRECTIONS
Mr Dawson is being tried by judge alone. Section 133 of the Criminal Procedure Act 1986 applies to the proceedings. It is as follows:
133 Verdict of single Judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
I have to some extent already made reference to the directions and principles of law that I am required to take into account when deciding this case. It is appropriate in the circumstances of this case that I set out the following further principles and directions of law which are given as part of this judgment. These directions list the principles of law that are to be applied and which I will apply where appropriate.
It is my duty and responsibility to consider whether Mr Dawson is guilty or not guilty of the count charged on the indictment and to return a verdict on that count according to the evidence that has been admitted in the trial. I am bound to apply the principles of law contained in these directions to the facts of the case as I find them to be.
In considering my verdict, I must act impartially and dispassionately. I must not let emotion sway my judgment. Neither prejudice nor sympathy has any role to play in my determination of the count on the indictment. My task must be undertaken free of prejudice or sympathy in any of its forms.
The burden of proof of the guilt of Mr Dawson rests wholly on the Crown. It rests upon the Crown in respect of every element of the offence with which Mr Dawson is charged. It is for the Crown to prove his guilt and to prove it beyond reasonable doubt. There is no onus upon Mr Dawson to prove or to establish anything at all. He is presumed to be innocent unless and until he is proved to be guilty beyond reasonable doubt.
The expression "beyond reasonable doubt" is constituted by plain English words. It requires neither explanation nor elaboration. If I have a reasonable doubt about Mr Dawson's guilt, he is entitled to be acquitted.
The fact that some or all of the evidence put before the Court by Mr Dawson may not be accepted does not affect the Crown's onus of proof, and it does not relieve the Crown from proving his guilt beyond reasonable doubt.
The onus which rests on the Crown is to prove the elements of the offence beyond reasonable doubt. The Crown does not have to prove every single fact in the trial beyond reasonable doubt unless the fact is deemed to be an intermediate fact.
I am obliged to consider and assess the evidence given by various witnesses and decide whether they are telling the truth, or are reliable, and whether I accept their evidence. My ultimate decision as to what evidence I accept, and what evidence I reject, may be based on a range of matters, including the content and the context of what the witness had to say, the manner in which the witness said it and the general impression which the witness made upon me in giving evidence.
In considering whether to accept the evidence of a witness, I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part, and reject part, of the evidence of the same witness. The fact that I do not accept a portion of the evidence of a particular witness does not mean that I must necessarily reject the whole of the witness's evidence. I can accept part of the evidence of a witness if I think it is worthy of acceptance.
Finally, I direct myself in terms of the usual direction given to juries about inferences. I may, as the judge of the facts, draw inferences from the direct evidence. I acknowledge that I must be extremely careful about drawing any inference and that I should examine any possible inference to ensure that it is justifiable. I am aware that in the context of a criminal trial I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. Although I have already made reference to it, before I can bring in a verdict of guilty based entirely upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.
[89]
MOTIVE
Juries are regularly instructed that the motive by which a person is induced to do an act or form an intent is immaterial to the question of criminal responsibility. If a jury decides that the evidence is not evidence of motive, that does not necessarily mean that the prosecution has failed to prove guilt because of lack of motive. In such a case, the jury would have to base its verdict on the evidence that it accepted. However, the existence of motive can be an important factual issue, particularly in a circumstantial case, where the prosecution asks the jury to infer guilt (or infer that the accused did the act intentionally). If there is motive, then what might otherwise be inexplicable may become explicable. The existence of motive without more is not sufficient to found a finding of guilt. Similarly, positive evidence that an accused lacked motive is a matter properly to be taken into account by a jury, particularly in a case based on circumstantial evidence.
The Crown's case is that Mr Dawson had three coexistent motives. One of them was to get rid of Lynette Dawson. The second was "to bring in [JC]". The third was to avoid the financial consequences of going through the Family Court and dissolving the marriage with Lynette Dawson. The Crown submitted that when what it referred to as the marriage timeline is placed alongside what it characterised as the interest in JC timeline, Mr Dawson's motive for the murder of Lynette Dawson is an irresistible inference. That is to say, the Crown maintained that Mr Dawson's increasing interest in JC, from his first encounter with her as a schoolgirl until around the time of her departure on holiday with friends in South West Rocks, became an infatuation and an all-consuming obsession for him. The Crown contended that the start and evolution of that obsession mirrored the coincidental decline in the health of Mr Dawson's marriage to Lynette Dawson, manifested by increasing impatience and anger, even violence, emotional and physical separation, and ultimately his intention to replace his wife with his teenage lover. The Crown case is that Mr Dawson had a motive to kill Lynette Dawson to achieve what he wanted.
Mr Dawson's response to this analysis, bearing in mind yet again that he bears no onus to prove or to disprove anything, was made perfectly clear in the course of Ms David's final submissions to me as follows:
DAVID: It is not in issue, as also stated in the opening, that he failed his wife; however it is the defence contention that not only did he not have a motive to kill her, on the contrary it will be submitted on behalf of the defence that in fact the evidence does not support that he had any motive to get rid of his wife at all.
…
So the theory and the motive for having an unfettered relationship with [JC], we say, is not borne out when one considers in fact what did occur.
…
We say that, notwithstanding his relationship, however inappropriate, obviously the defence position is, it doesn't make him a murderer. Your Honour would well know that, but we say that there's nothing about what occurred at the time. There was no motive on the part of Christopher Dawson to kill Lynette Dawson. We say that the fact of entering into another relationship or having a relationship …
HIS HONOUR: Well, I'm sorry to interrupt you. There is a motive on the table but you say that, that is to say theoretically there's a motive, but you say Mr Dawson didn't have it and couldn't on the evidence be deemed to have had it?
DAVID: That's correct, your Honour, because we say that there are other factors that support that he didn't have it because of his preparedness to leave and that, by reason of the issues involving the children, that it was really counter-productive in the extreme to any unfettered access to [JC] because it was a bar right from the outset to him having a relationship with her, and that, we say, is really very important in this case, but we also say that he did provide a motive for Lynette Dawson to not want to be with him or to abandon the home.
HIS HONOUR: A reason?
DAVID: A reason, yes. A reason, yes. And the point, and if I didn't make it clear enough, I just want to try to make it more clear today, and that is that the point I was endeavouring to make on Friday was really to the effect that, even though Christopher Dawson was in a relationship that was in … well, at the stage in January apparently not a continuing relationship with [JC] but had been around that time, that of itself, the fact that he was in a relationship with someone else does not mean that he felt animosity towards Lynette Dawson, the defence position is. But that of itself, just because you embark on another relationship, that it does not mean that you automatically stop having any regard or feelings for another person."
In further elaboration of Mr Dawson's position, Ms David emphasised that at the point when Mr Dawson and JC appear to have been contemplating starting a life together, their first plan was to leave together for Queensland. On one view, it may well have manifested before that when, on JC's evidence that I accept, Mr Dawson made enquiries about taking a lease on a flat in North Manly. Mr Dawson emphasises that a separate home with JC in Sydney or somewhere in Queensland were in either case plans that showed Mr Dawson's desire to be away from Lynette Dawson but which were plainly capable of fulfilment while she remained alive.
To the suggestion that the financial imperative may have been significant to Mr Dawson in this respect, Ms David said this:
"DAVID: In summary in relation to motive, the defence submit that your Honour could not accept that there would have been less financial burden by getting rid of Lynette Dawson … sorry, I will put that another way, that there was any financial advantage to Christopher Dawson by getting rid of Lynette Dawson because he could have the house. I mean, we say that the raising of children and the associated financial costs of raising children on your own, organising care, organising all those aspects of daily life are considerable burdens that don't exist if you up and leave a relationship, have the capacity to work full time and do many of the things that Christopher Dawson was well able to do to earn additional income if he didn't have the two children to look after 24 hours a day.
So we say that the suggestion that somehow to avoid a family law settlement of funds is just not a basis … it's just not an inference or a circumstance that would support that Christopher Dawson murdered his wife. We say that it is, as a matter of practical experience, it's very difficult to it's a very costly exercise raising children. Doing so on your own adds difficulties. To suggest that he would be better off financially by encumbering himself, if I could put it that way, with two children and not having…
…
… but the practicality of having less of the carve up of the property in circumstances where you had a greater ability to earn an income might because you didn't have to worry about looking after two children all the time and you could do extra jobs as Mr Dawson had done, we say that it's illogical, given the history of this matter, that he was prepared, firstly, prepared to leave his wife and children as a motive, that there's nothing other than pure conjecture and speculation that that is a part of his thinking.
HIS HONOUR: Your proposition is that if at one stage, although it came to nothing for reasons out of his control, he had proposed to leave his wife with [JC] and who knows what would happen to the property, consistent with that disregard for his own financial wellbeing, it's a long stretch to suggest that part of his motive might have at a later time, not too much later, have morphed into part of a motive to kill her."
As Ms David submitted, "what was contemplated between Christopher Dawson and JC had been a life of the two of them, that is just the two of them in sharing the flat or going to Queensland, it didn't contemplate the children". The significance of the children was further emphasised as follows:
"HIS HONOUR: …What is your emphasis on the practical assistance that [JC] could give to Mr Dawson in the circumstances that bears upon the Crown case that he had a motive to kill his wife? ...
…
DAVID: I would address that a little bit later as well in relation to motive when I come back to that in more detail, but I would say in relation to motive that the Crown contends that it was the desire of the accused to have an unfettered relationship with [JC]. The defence position on that is that, in fact, it was the fact that Lynette Dawson was not there was a considerable constraint on them actually resuming a relationship because she did not, from a very early stage, that is, [JC], want to have the responsibility for the children. And that comes through quite strongly, and I will come to that in more detail on motive because we say that that is a considerable factor that your Honour would take into account, that from the early days that [JC] has expressed that she did not want to be a mother of those children and she expressed that to a number of people including Barbara Kilpatrick.
So, as for positioning himself to have an unfettered relationship with [JC] as a motive, we will argue, and I will come to that, we say that that is not actually borne out by the evidence because it's quite the contrary. In fact, it was a significant fetter to any ongoing relationship, and that she, [JC], in fact has stated in a number of places that at that time she wanted to be with Christopher Dawson but not the children.
HIS HONOUR: I think the word 'unfettered' was directed to the absence of Lyn Dawson rather than the absence of the children, wasn't it?
DAVID: It was, but what I'm saying in relation to motive is that … we say a number of things. Firstly, the Crown contends that … we say a number of things … that, firstly, that he's demonstrated or he demonstrated around that time his preparedness to go up north with [JC] and abandon his home, both his financial interests and Lynette Dawson, to be with [JC]. He has demonstrated other thoughts which has been to arrange for a flat at Manly. Again, it speaks … it's contrary, entirely contrary to the notion that he felt that he needed to get rid of Lynette Dawson to be with [JC]."
In summary, Mr Dawson's response to the Crown case, that Lynette Dawson was in effect a real and recognised impediment to Mr Dawson's plan to be with JC, and that killing her was the only solution to having an unfettered relationship with her, is that any such inference simply does not emerge from the evidence with sufficient strength to be accepted at any level of persuasion. In particular, given JC's avowed disinclination to become a teenage carer for Mr Dawson's children, the disadvantages associated with Lynette Dawson's absence more than outweighed any benefit Mr Dawson might achieve from Lynette Dawson's death. As Ms David submitted:
"The defence position is that in fact there was no motive for Chris Dawson to kill Lynette Dawson and, in fact, there was a significant impediment to his relationship with [JC] by reason of the fact that Lynette Dawson was no longer around to care for the children.
…
So we say that ought be put aside and that there's just nothing about getting rid of … there was just no reason for him to do so. None at all. If he wanted a relationship with [JC] and she wanted one, he was prepared to do it. It was unnecessary. And there was nothing to support, we say, other than pure conjecture about what your Honour has so succinctly put about the financial motive."
Mr Dawson's position is that the fact of his entering into another relationship or maintaining a relationship with JC could not legitimately be used, having regard to all of the evidence, to establish the existence of a motive to kill Lynette Dawson.
[90]
discernment
The Crown case against Mr Dawson is that the untimely disappearance of his wife coincided with him securing access to the teenage girl with whom he was clearly besotted, unfettered by the presence of his wife. The Crown contends that this was a coincidence that was neither serendipitous nor innocent. In the 12 September 2018 telephone call between Mr Dawson and his brother Gary, Mr Dawson said:
"…I don't see why I've got to have all the answers as to why she did this or why she did that. Okay, our marriage broke up, she took off."
The Crown submitted that an innocent explanation for Lynette Dawson's disappearance, like that, puts such an incredible strain on human experience because it is so very unbelievable: it puts an incredible strain on human experience to accept, as a reasonable possibility, that Mr Dawson's evident desire to instal his teenage lover as his de facto wife and the mother to his children was fulfilled by the completely fortuitous and cost free disappearance of the wife that he loathed.
The Crown maintained that Lynette Dawson vanished because she was murdered by Mr Dawson, either alone or with the assistance of another person, after she was seen at the Warriewood Childcare Centre on the afternoon of Friday 8 January 1982 and following her telephone conversations with Phillip Day and her mother Helena Simms later that afternoon or evening. It is the Crown case that Mr Dawson disposed of his wife's body at an unknown location after he killed her, probably on 8 or 9 January 1982, but in any event before he arrived in South West Rocks to return with JC to Sydney.
The Crown must prove beyond reasonable doubt the essential ingredients that together constitute the crime of murder. I have already found that I am satisfied beyond reasonable doubt that Lynette Dawson is dead. I have also already found that I am satisfied beyond reasonable doubt that Lynette Dawson has neither been seen nor heard from since on or about 8 January 1982 and that she has been dead since that time. I am equally satisfied that there is no reasonable possibility that Lynette Dawson left her home and family on 9 January 1982 by voluntarily disappearing with the intention never to return or to contact anyone again.
Before Mr Dawson can be found guilty of the murder of Lynette Dawson, it remains necessary for the Crown to prove in addition that her death is the result of Mr Dawson's conscious, voluntary and intentional act performed or committed with the intention of killing her. There is no suggestion that Mr Dawson could have done so with a lawful excuse.
As I have said more than once, the Crown case is wholly circumstantial. The inference of guilt argued for by the Crown is drawn from a combination of the range of circumstantial facts adduced during the course of the trial. The Crown submitted that individual facts, perhaps some more than others, gained cogency from other facts in the case. Because the Crown case rests substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable possibility other than the guilt of the accused.
It is the Crown case that the potential loss of JC caused Mr Dawson very considerable anxiety and that he saw his wife as an impediment to pursuing his relationship with JC. Mr Dawson had proposed marriage on more than one occasion. His obsession with JC, his fear of losing her and the hindrance that Lynette Dawson posed to pursuing that obsession are matters that the Crown maintains ultimately motivated him to murder her.
The Crown case is that sometime after the call with Helena Simms, in which Lynette Dawson was recorded as sounding "half-sozzled", and before he went to the Northbridge Baths the next afternoon, Mr Dawson murdered his wife. It is the Crown case that he did so because each of what the Crown has characterised as in effect alternative plans, to move into a flat at North Manly, to sell his house or to move to Queensland, had failed.
The evidence establishes that Phillip Day drove Helena Simms and her granddaughters, XD and YD, back to Mrs Simms' home at Clovelly from the Northbridge Baths on the afternoon of 9 January 1982. Mr Day said that Mr Dawson told him that it was Lynette Dawson from whom a request that he do so originated, as part of the STD phone call that Mr Dawson was explaining he had just received. Mr Day said that he "did as Lyn requested, while Chris stayed at the pool to finish his shift". The Crown submitted that this was part of Mr Dawson "cunningly" arranging an easy solution as to what to do with his children so that he could return to 2 Gilwinga Drive that evening alone.
Phillip Day had been asked by Mr Dawson to be at the Northbridge Baths so that he could talk to him about his marital difficulties. It might in those circumstances have been expected that Phillip Day would recount that Mr Dawson told him that he had been in a sexual relationship with the babysitter which had caused some tension in his marriage; that he and the babysitter had left to go to Queensland; that they had come back but not attended Christmas with his wife and their children, instead staying in bed at his brother's place with JC; that he did not spend time with his wife and children on New Year's Eve, instead preferring the company of that same teenage girl and that these were the problems that he had. On the contrary, Mr Day said that he did not learn about JC until sometime later. On the Crown case, this supports the contention that Mr Day's presence at the pool was to facilitate Mr Dawson's opportunity to be free of his parental responsibilities on the evening of 9 January 1982.
Apart from evidence to suggest that Mr Dawson took Lynette Dawson to Mona Vale on the morning of 9 January 1982, which I reject, nothing is known about what Mr Dawson did that day. No one has given evidence of seeing or speaking to Mr Dawson on that day or of being told anything by him about what he was doing on the night of 9 January 1982. No person has given any evidence about seeing him later that day or night. JC was by now in South West Rocks. Paul and Marilyn Dawson were in Lake Munmorah on their one and only holiday in Aunt Audrey's caravan. The Crown contends that Mr Dawson engineered what was described as a "window of quiet seclusion" to give him the opportunity, on the evening of 9 January 1982 and the morning of 10 January 1982, to dispose of the body of his wife who, on the Crown's analysis, he had murdered either the previous evening or the next morning, before making his way north to collect JC.
It is instructive to examine the Crown's assertion that Mr Dawson was obsessed with JC. As far back as her final years at Cromer High School, Mr Dawson was exhibiting extreme interest in her. I accept that the notes and cards that are in evidence were written by him and presented to her when JC was still at school, or shortly after she left, as she said in her evidence. The words written by Mr Dawson bespeak, even at that relatively early stage, an infatuation of significant strength. By the time the relationship became a sexual relationship, Mr Dawson was becoming confronted with the stark reality that he could not remain married yet still maintain his ever more intense relationship with JC. I am also satisfied that Mr Dawson became, as a direct function of his infatuation with JC, increasingly jealous of any interest that may have been shown in her by other boys, such as PS or RH. I am satisfied that that attitude remained in place until after Lynette Dawson's disappearance and, although not directly related to the question of his guilt, remained manifest after their marriage, as supported by JC's evidence of his controlling behaviour when they moved to live in Queensland: for example, the G-string incident and the evidence from JC that Mr Dawson even monitored the places she went, the girlfriends with whom she mixed and the style of clothes that she wore.
I am satisfied beyond reasonable doubt that Mr Dawson had a possessive infatuation with JC. I find that that infatuation affected him very significantly in the period from about 2 January 1982, when JC left for South West Rocks. She had communicated her desire to end their relationship at around this time. It is clear that Mr Dawson did not want that to occur. But for JC's illness and homesickness, their attempt to start a new life together in Queensland was what Mr Dawson had wanted and expected. His note to Lynette Dawson, asking her not to paint too dark a picture of him to their daughters, was consistent with his expectation that he would remain permanently absent from the family, rather than on a mere temporary sojourn from which he might shortly return. Mr Dawson uncharacteristically gave up Christmas in 1981 with his family, something that had never previously occurred. He chose instead to spend that day with JC at his brother's house.
However, whereas JC had been in his sphere of influence throughout her final high school years or in his company on a constant basis as a live-in babysitter or as a teenager from a troubled home needing somewhere to live, that situation dramatically changed after Boxing Day 1981. Although Mr Dawson spent New Year's Eve alone with JC in 1981, she had been since about 27 December 1981 living with her sister at Neutral Bay. Then, following New Year's Eve, JC flew to South West Rocks on about 2 January 1982. In my view, that had two significant consequences for Mr Dawson. First, JC was now suddenly beyond his physical reach and out of his control. I accept JC's evidence that Mr Dawson asked her to call him every day that she was away, and that she did so. Secondly, JC was in South West Rocks beyond Mr Dawson's emotional influence. She was instead in the company of other young women, and significantly young men of her age, such as the PSs and RHs of the world, who had so plainly concerned Mr Dawson in the recent past. Mr Dawson was in Sydney, hundreds of kilometres from JC, with no knowledge of what she was doing or with whom, while he remained shackled to a wife that he had only days before shown himself to be more than enthusiastic to leave. I am satisfied that the prospect that he would lose JC so distressed, frustrated and ultimately overwhelmed him that, tortured by her absence up north, Mr Dawson resolved to kill his wife.
I consider that a manifestation of Mr Dawson's frustration with Lynette Dawson is evidenced by the trampoline incident described by Julie Andrew. However, as I have attempted to make plain, that frustration was more probably a product of Mr Dawson's failing enthusiasm for his marriage: it was not in my view the function of a nascent plan to murder his wife. In the same way, evidence that Mr Dawson may have been disrespectful to Lynette Dawson by referring to her as "fatso", or singing songs with offensive double meanings, or even less so, by flicking her with a tea towel or complaining about the state of his shirts or the glassware, does not seem to me to be remotely associated with the existence of an embryonic homicidal plan.
I have already indicated that I do not accept that Mr Dawson was previously violent to Lynette Dawson. I reject the evidence that she had bruises or black eyes or that they are attributable to him. I do not accept that Mr Dawson put his hands around her throat in the lift on the way to marriage counselling. I also do not accept that he assaulted her at the poolside by pushing her face into the mud. These incidents, so described, are in my view likely to have been spawned by, or in close association with, the unfavourable opinions about Mr Dawson that the publicity surrounding Lynette Dawson's disappearance has generated.
I have already accepted that Mr Dawson is a person of prior good character. It is not without significance in my view that Mr Dawson's alleged predisposition for violence against his wife sees no support from any historical recollections of his marriage to Lynette Dawson by family members or close friends such as Robyn Warren or Phillip Day. Nor is there even a hint of any such thing from Mrs Simms who, on any analysis, was an avid contemporaneous chronicler of, and commentator upon, the health of her extended family.
I am fortified in my ultimate conclusion in this trial by the lies that Mr Dawson told following Lynette Dawson's disappearance. That conduct is only explicable as demonstrating a guilty conscience referable to the death of Lynette Dawson. I reiterate, as I have already acknowledged, that I may only take a lie into account as evidence of Mr Dawson's guilt in the sense that it must be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. Proof of a lie does not of itself prove Mr Dawson's guilt. I am also acutely aware that I must also find that what Mr Dawson said, or omitted to say, amounts to a lie that relates to an issue that is relevant to the offence with which he is charged, being some significant circumstance or event connected with that alleged offence. I must also find that the reason Mr Dawson told the lie is because he feared that telling the truth might reveal his guilt in respect of the charge he faces or would implicate him in the commission of the offence for which he is now on trial.
Mr Dawson has made a series of representations in various circumstances over a long period of time, including his record of interview. They are representations which in a circumstantial case can be taken together for comparison with all of the evidence with a view to forming a conclusion if possible about where those representations fit in the scheme of things. However, I need to be cautious as the tribunal of fact that reliance is not placed upon what is said to be a lie as evidence of consciousness of guilt in a circumstantial case in a way that leads to circular reasoning.
Mr Dawson's lies fall into a number of categories.
First, Mr Dawson told lies that point away from the fact or tend to disguise or diminish the suggestion that he was interested or involved with JC. He travelled north by himself. It was not his desire that JC should come to live with him. When she did, it was not immediate. Their relationship had ended. It was at JC's instigation that he travelled to South West Rocks to retrieve her. He did not do so immediately.
Secondly, Mr Dawson told lies that he wanted to resume his relationship with his wife. He was anxious to do so. He lay awake at night hoping for her return. He even became impatient with her on the phone when her indecision persisted.
Thirdly, Mr Dawson told lies to suggest that Lynette Dawson was still alive. She had phoned him at Northbridge Baths. She had phoned him on a number of occasions thereafter. He had received bankcard statements indicating that she made purchases in the local area after she disappeared.
I pause to observe that, as I have earlier indicated, Mr Dawson is the sole author of this evidence. As anticipated, I am only able to reject this evidence upon a consideration of all of the evidence in this case. Part of that evidence has led me to conclude that Lynette Dawson was dead by no later than 9 January 1982. That conclusion supports my rejection of the evidence that she was using a credit card in late January.
Fourthly, Mr Dawson told the lie that Lynette Dawson had some form of emotional episode that might have led her to walk away from the family home. I acknowledge that Mr Dawson is once again the only source of information about that and that the Crown cannot show it to be a lie other than by reference to other circumstantial evidence that suggests she was in good spirits and optimistic about her marriage. That is an example of the need to be ever vigilant about the possible intrusion of circular reasoning when considering what are said to be lies told by Mr Dawson.
In summary, I consider that Mr Dawson's answers to the police in his 1991 interview and elsewhere, such as the Antecedent Report and the Missing Person's Report, contained lies and omissions that were intended to create, by themselves but also in combination, an impression that was inconsistent with him having anything to do with the disappearance of his wife: his relationship with JC was over; it was not he who wanted her to return to Sydney as his lover; he was yearning for contact from his wife; Lynette Dawson was showing signs of distress on the day before she disappeared; her optimism about the marriage guidance counselling was starting to unwind - she was "disturbed by the results of that"; Mr Dawson expected JC to return to her family home in Sydney; he did not ask her to come and live with him; JC ended up coming to live with Mr Dawson because she was not wanted anywhere else; Mr Dawson thought that JC wanted to get away from South West Rocks; he re-joined his wife in his own home upon his return from Queensland with JC.
I find that these were lies told by Mr Dawson intending to deflect all or any attention away from him as a person possibly concerned in the death of Lynette Dawson. I consider that these lies are evidence of Mr Dawson's consciousness of guilt for the murder of Lynette Dawson. That finding is not, standing alone, determinative of this guilt.
I have previously considered competing submissions on whether Mr Dawson had a motive to kill his wife. Plainly enough, a motive is no more or less than a reason for doing something. A motive may or may not be associated with a long range plan to do it. The burden of the Crown case with respect to Mr Dawson's motive to kill his wife is that it evolved and developed in response to the failure of alternative solutions to his desire to be exclusively with JC. On this analysis, Mr Dawson did not form an intention to kill Lynette Dawson at the time he and JC were seeking alternative accommodation in the North Manly flat, nor when they departed for Queensland together. I consider that analysis is probably correct.
I disagree that Mr Dawson's decision to kill his wife was also impelled by a financial motive, hoping to avoid the division of his joint fortune. So much seems apparent from his comparatively ill-advised decision to start a new life in Queensland. Whether that decision was made without legal advice or in spite of it, I do not accept that Mr Dawson could ever have had in mind when he and JC packed up his Corolla with their belongings and drove away that he would later kill his wife. The surrounding circumstances in this case lead me to the conclusion that that decision was made following their return, and after JC had left for South West Rocks, but that it was not directly informed by Mr Dawson's concern for his financial well-being.
The Crown has described the fact that Mr Day was at the pool on 9 January 1982 and able to drive Mr Dawson's daughters to Clovelly that evening as part of a cunning arrangement. Properly understood, that submission can only be that having regard to all of the circumstances treated as a whole, it is possible rationally to infer that Mr Dawson foresaw the need to be alone on that Saturday night. Although not specifically emphasised in submissions, it is arguably of note that Mr Dawson told Mr Day that it was Lynette Dawson's request that the girls go home with their grandmother that afternoon. A request that was attributed to Lynette Dawson would clearly give a different impression to one that came from him. It would on one view deflect attention from some later examination of whether Mr Dawson needed to be free of his children that night. However, no submissions have been made to suggest that this was a lie told by Mr Dawson evidencing a consciousness of guilt. That is presumably because the only source of the putative lie is Mr Day. Bearing in mind the caution with which inferences said to arise from a lie should be drawn, I do not propose to treat it as such. However, I am satisfied beyond reasonable doubt that Mr Dawson arranged for Mr Day to take his daughters to Clovelly and that that request was made in contemplation of Mr Dawson's plan to return home alone, having already killed his wife.
The evidence does not reveal how Mr Dawson killed Lynette Dawson. It does not reveal whether he did so with the assistance of anyone else or by himself. It does not reveal where or when he did so. Nor does it reveal where Lynette Dawson's body is now. The charge of murder in this trial is unsupported by direct evidence. The case against Mr Dawson is wholly circumstantial. It is therefore necessary that the Crown persuade me beyond reasonable doubt not only that Mr Dawson's guilt is a rational inference, but that it is the only rational inference that the circumstances would enable me to draw. The circumstantial evidence in this case, considered as a whole, is persuasive and compelling. None of the circumstances considered alone can establish Mr Dawson's guilt but when regard is had to their combined force I am left in no doubt.
I am satisfied beyond reasonable doubt that the only rational inference that the circumstances enable me to draw is that Lynette Dawson died on or about 8 January 1982 as the result of a conscious and voluntary act committed by Mr Dawson with the intention of causing her death.
[91]
VERDICT
I am satisfied beyond reasonable doubt that the Crown has proved the single count in the indictment.
Christopher Michael Dawson, on the charge that on or about 8 January 1982 at Bayview or elsewhere in the State of New South Wales you did murder Lynette Joy Dawson, I find you guilty.
[92]
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Decision last updated: 01 September 2022