HIS HONOUR: It is trite to observe that an accused person in criminal proceedings is entitled to receive a fair trial according to law. A fair trial does not equate to a perfect trial. Nevertheless, Mr Dawson contends that the material which the Crown wishes to tender on this application will, if received in evidence, mean that his trial will have been unfair. That is because, according to his submission, the evidence in question must not be admitted, having regard to the terms of s 138 of the Evidence Act 1995, as it was obtained improperly or as a consequence of an impropriety and that the desirability of admitting the evidence does not outweigh the undesirability of admitting evidence obtained in the way it was obtained. These issues arise in the following way.
The Crown alleges that Lynette Dawson disappeared on 8 January 1982. Mr Dawson has been charged with her murder. Lynette Dawson's body has never been found. Evidence has been given in these proceedings by several witnesses who say that, since her disappearance, they have seen Lynette Dawson in various circumstances and locations. These sightings are all independent one of the others and are not closely connected in place or time.
One such sighting occurred at the Rockcastle Private Hospital in 1984. The evidence of Mr and Mrs Breese attests to them each having seen Lynette Dawson standing by the nurses' station at that hospital during Mr Breese's admission there for minor surgery. Mr Breese described the woman he saw wearing a nurse's uniform. Mrs Breese said she saw Lynette Dawson there dressed as a nurse as well. Lynette Dawson was a nurse. Mr Breese was called by the Crown. Mrs Breese's statement was tendered without objection. It is anticipated that the Crown will contend that the overwhelming inference from other evidence in the trial will satisfy me that Lynette Dawson is dead and that Mr and Mrs Breese are mistaken in their observations. The Crown does not suggest that their evidence is false.
The evidence that the Crown now wishes to lead relates to the question of whether Lynette Dawson worked at the Rockcastle Private Hospital in 1984 at or around the time that the Breeses say they saw her there. That evidence consists of statements taken in the recent weeks from five former nurses who worked at the hospital during that period, who say that no nurse called Lynette Dawson or, with one minor exception, who looked like her, ever worked with them. These women are being called because the hospital ceased to operate in the early 1990s, and no records or employment data from that period are now available objectively to demonstrate who may have worked there as a nurse at that time.
Because Mr Dawson maintained that the evidence of these witnesses had little or no probative value, I directed, with the agreement of the parties, that their oral evidence be taken on a voir dire. It was not suggested that the witnesses were untruthful or mistaken in their recollections so that the evidence they were able to give has been accepted at face value. Indeed, it was accepted by Mr Dawson that, in the event that their evidence were admitted, their statements could be tendered and their oral evidence could be treated as their evidence in the trial. Mr Dawson's main contention was instead that their evidence was relevantly without any value as it did not foreclose the possibility that Lynette Dawson could have worked at the hospital on different shifts without these women being aware of that fact. All of the witnesses acknowledged and accepted that possibility.
The relevant portions of the statements are as follows.
[2]
Linda McCarthy
"3. In February 1969 I commenced my nursing training at Prince Alfred Hospital and completed training about five years later and became a registered nurse. I have worked as a registered nurse from that time till now where I am currently working at the Mater Hospital in North Sydney. I have always worked in hospitals. From memory I was twenty-one years old when I commenced working at Rockcastle Private Hospital located in Harbord. This would have been around 1973. I remember that I turned twenty-one whilst working at this hospital. I am unsure of the exact dates but from memory it was around the mid-1990s when I moved from Rockcastle Private Hospital to the Peninsular Hospital (when I commenced working there it was called North Harbour Hospital before changing its name to Peninsular). I worked there for about 10 years. I have been working at the Mater Hospital for roughly eighteen years. In the 1980s I was working at Rockcastle Private Hospital as a Registered Nurse. I was promoted to the Nursing Unit Manager probably about five years before I left the hospital. In the 1980s I worked a rotating roster.
4. A few years ago (I cannot remember the exact date) I received a phone call from Detective Clancy. She asked me some questions about trying to locate old files of staff and patients from Rockcastle Private Hospital. I made a few suggestions that Detective Clancy contact three former colleagues from the hospital who might know the location of these files. I did not speak to Detective Clancy until I think on Wednesday 15 June 2022. Detective Clancy informed me that we had previously spoken about three years ago which I had remembered. This day she specifically asked me if I knew that [sic] a person by the name of Lynette Dawson and if she had ever worked at Rockcastle Private Hospital in the 1980s. I informed her that I did not recall her at all. I did not have an image of Lynette Dawson, but I didn't recognise the name as a person who worked at that hospital during that time.
5. I have heard about the disappearance of Lynette Dawson over the years through listening to the news on the radio and general gossip from other former staff members of Rockcastle Private Hospital and friends. I don't watch the news on the television, don't usually read the newspaper and generally don't look up on the news online. A few weeks ago, I was speaking to Mandy and Lenka who are my friends and former colleagues of Rockcastle Private Hospital. They mentioned that someone had said that Lynette Dawson may have worked at Rockcastle Private Hospital, two years after she had disappeared. This was the first I had heard about this. Shortly afterwards I received a phone call from Detective Clancy. I then contacted Kerry (who is another friend and former colleague of the hospital) where we discussed Lynette Dawson in detail, including whether she worked at the hospital or not. I told Kerry I did not know what Lynette Dawson looked like. Kerry told me I would have seen images of Lynette Dawson in the media. On Thursday 16 June 2022, I received an email from Kerry titled, 'Lynette Dawson photo' and attached to the email an image of a female with short fair hair. I understood this image to be of Lynette Dawson. This female does not look familiar to me. I have never seen her before. There was no text included in the email that Kerry sent me.
…
7. Today I have been asked by Detective Clancy if I can recall a nurse by the name of Lynette Dawson working at Rockcastle Private Hospital whilst I was employed there. I cannot. I have also been asked if I can recall a person by the name of Lynette Dawson working in any capacity at Rockcastle Private Hospital in the 1980s, which I cannot."
[3]
Deborah Brassey
"3. Between 1981 and 1990 I worked at Rockcastle Private Hospital which was located at Beach Street, Harbord. It was a small private hospital. I can recall whilst working there in 1981 to 1984, the hospital performed procedures and operations for plastic surgery and gynae (gynaecology). I think it was sometime in 1984, the doctors from Mona Vale Hospital held a strike and as a result Rockcastle Private Hospital shifted to be the Orthopaedic Trauma Service for the Northern Beaches area. Around 1984 I moved from the ward into an administration role. I left Rockcastle Private Hospital in 1990 however remained friends with a lot of the nursing staff, even to this day I continue to have these friendships.
4. On Friday 10th June 2022, I was watching television being Prime News at 6pm, where an elderly couple reported seeing Lynette Dawson working at Rockcastle Private Hospital during the 80's. Whilst working as a nurse between 1981 and 1984, I did not know a nurse by the name of Lynette Dawson. I have searched Google for images of Lynette Dawson and I can confirm to the best of my recollection, I have not seen Lynette Dawson working at Rockcastle Private Hospital.
5. That night I initiated a group chat via text message with two old nursing colleagues being Wendy Degar and Lenka Tulich. Both of these ladies were permanent ward staff for Rockcastle Private Hospital in the 1980s. Neither Wendy nor Lenka have any recollection of Lynette Dawson working at 'our' hospital, being Rockcastle Private Hospital. In this group chat I included a screen shot of various images of Lynette Dawson which I had searched on Google. Wendy and Lenka did not recognise Lynette Dawson as working at our hospital. During the chat Wendy and Lenka told me they had asked other nursing friends who worked at the hospital around that time if they knew Lynette Dawson or could remember her. Both Wendy and Lenka confirmed that no one they had texted or spoken to could recall Lynette Dawson working at the hospital in the 1980s.
ANNEXURE A: I now produce the screen shot of the images of Lynette Dawson that I sent via the group text chat
…
7. About 5pm on Tuesday 14th June 2022, I received a phone call from Detective Rowena Clancy from the New South Wales Police Force. She informed me that she was one of the investigators who was involved in the Lynette Dawson matter. I told her that I used to work at Rockcastle Private Hospital between 1981 and 1990 and I have never worked with Lynette Dawson or seen her at work. I also informed her I had spoken to some nursing friends who worked at Rockcastle Private Hospital who had no recollection of the name of Lynette Dawson working at the hospital in the 1980s and did not recognise her from the images I had sent them.
8. A short time later I emailed Detective Clancy with a typed document that includes a list of former nurses who worked at Rockcastle Private Hospital in the 1980s.
ANNEXURE B: I now produce this one-page typed document
9. I have been aware of the disappearance of Lynette Dawson over the years, only through general media outlets. The recent news clipping pricked my attention as it mentioned Rockcastle Private Hospital and the elderly man was adamant that he had seen Lynette Dawson working at the hospital, early to mid-1980s whenever he had his surgery. It was only then that I searched Google for images of Lynette Dawson as the name didn't ring a bell as any nurse that I had worked with during that time. I saw the images of Lynette Dawson and I did not recognise her as being employed in any capacity at the hospital (theatre staff, nursing staff and domestic staff)."
[4]
Susan Cooper
"3. I commenced my nursing training at Bathurst District Hospital in 1965 and completed training in 1969 and became a registered nurse. I worked as a registered nurse from this time until I retired in 2018. I have always worked in hospitals. Once I completed my training in Bathurst, I moved to Sydney where I worked at St Margaret Children's Hospital at Darlinghurst. I then moved to Chatswood Community Hospital as a theatre nurse. Around 1970 I moved Westcourt Private Hospital located at either Harbord or Curl Curl. I had my first child and took some time off however still worked some casual days at Westcourt. Around 1976/1977 I moved to Rockcastle Private Hospital located in Harbord on a permanent part-time basis as the night supervisor (also referred to as Night in Charge) and still there until it closed about 1991 (I am not sure of the exact date). I do recall I commenced working at Delmar Private Hospital located in Quirk Street, Dee Why in 1993. I worked there till my retirement in 2018.
4. Roughly in 1971 we moved into the house my husband built, which was located at 75 Toronto Ave, Cromer. We lived in this house for twenty-four years before moving to the house where we currently live.
5. I can recall Lyn Dawson living on the same street as my husband and I in Cromer. From memory I think she and her husband Chris Dawson, lived at either number 134 or 136 Toronto Ave. I only met Lyn once socially. The area was a new estate, and a lot of families were either building their own homes or moving into newly built homes. Families would socialise together. I formed a close relationship with Ruth Fenton, she remains my close friend today. She lived at 122 Toronto Ave with her husband Don Fenton. Through Ruth, I met Wendy and Doug Rattan (I think they lived at 128 Toronto Ave). I can remember one afternoon where I was at Wendy's house and Lyn came into the house. I was introduced to her there. We were both in the nursing professional (sic). I know at that time she was working at a public hospital. I think she was working at North Shore but cannot be sure. I don't remember the conversation. We exchanged pleasantries. I would describe Lyn as very friendly. She had blonde hair, slight built and was medium height. This was the only time I spoke to Lyn. I never met her husband, Chris but I saw him around their house, mowing the lawn and driving the car.
6. After I met Lyn, I used to see her regularly in the mornings, standing on the bus stop (it was located at the end of Toronto Ave and Cromer Road) when I was coming home from work on night duty. We would wave to one another. Lyn was wearing her nursing uniform, being a blue and white striped dress with a red cardigan. I remember seeing her with toast in her mouth.
7. A few years ago (I cannot remember the exact date) I received a phone call from Detective Clancy. She asked me some questions about my employment at Rockcastle Private Hospital. I remember supplying some other colleagues' names to Detective Clancy. I told her that there should be records from Rockcastle which she could use. I remember providing the name of Susie Davidson who was the CEO/Office administrator of Rockcastle. I did not speak to Detective Clancy until Wednesday 15 June 2022. Detective Clancy informed me that we had previously spoken about three years ago about patient and staff records from Rockcastle Private Hospital. She specifically asked me if I knew that [sic] a person by the name of Lynette Dawson and if she had ever worked at Rockcastle Private Hospital in the 1980s. I informed her that I used to live in the same street as Lyn in Cromer and that as far as I was aware, she never worked at Rockcastle Private Hospital. I do not recall ever seeing Lyn Dawson working in any capacity within the hospital. The hospital only had approximately sixty beds and I knew most of the staff. The hospital very occasionally used a nursing agency for staffing requirements. I cannot recall working with any nurses from an agency as we used to mostly cover for one another. I made a lot of good friends whilst working at Rockcastle Private Hospital. I keep in contact with most of them up until now."
[5]
Carol Clarke
"3. I cannot remember the date that I commenced my nursing training however I do remember that I completed my nursing training in 1965. My maiden name was Bayfield and working as a nurse I was known as Carol Bayfield. Whilst working in Australia as a Registered Nurse, I only worked in hospitals. I worked at Pittwater Nursing Home in the 1970s for about four years before moving to the Mater Hospital for a short time. From there I moved to Rockcastle Private Hospital located at Harbord as the Director of Nursing. I worked in this capacity from 23 June 1980 to 20 November 1989 (I located my resume which included these dates). My roster at Rockcastle Private Hospital was day shift, Monday through to Friday where I worked full-time. In my role, I used to employ all the nurses and the domestic staff (being cleaners, laundry workers, kitchen staff). The only staff I did not employ were the theatre staff. This was done by Judy Plomley. The hospital did use nursing agencies however they were not used very often. There were only forty three beds in the hospital. We were very fortunate as we did not have a great turnover of staff. The staff remained at the hospital for a long time.
4. I cannot remember the date, but about a year ago I received a phone call from Detective Clancy. She asked me if I knew Lyn Dawson. As far as I can recall that was the conversation. I did not speak to Detective Clancy until about one week ago. Detective Clancy informed me that we had previously spoken, which I had remembered. This day she specifically asked me if I knew of a person by the name of Lynette Dawson and if I had any hospital records from Rockcastle Private Hospital. Detective Clancy asked me what were the specific dates that I worked at the hospital. I informed her that I did not recall a person working at the hospital with that name, Lyn Dawson. I informed Detective Clancy I would look up old photos and documentation that I had to confirm if Lyn Dawson worked at the hospital and if I recognised her.
5. I have only recently heard about the disappearance of Lynette Dawson through watching the news on television. I've seen in the newspaper articles relating to this case, though I have only read one. I think I heard Rockcastle Hospital mentioned on the news the other day. I really didn't pay too much attention to the story on the television. I have not spoken to any former nurses from Rockcastle Private Hospital in the last few weeks.
6. I have only seen images of a female who I know to [be] Lynette Dawson on television. I have seen various images. I have not searched Google to find an image of Lynette. When I have seen the various images of Lynette Dawson, none of those images look familiar to me. I don't recall ever employing a person who looked like Lynette Dawson at the hospital.
7. I received a phone call from Detective Clancy a few days ago, asking me if I would make a statement about my knowledge of Lynette Dawson and Rockcastle Private Hospital, to which I agreed. Since this time, I have received my old photographs of staff from the hospital. I cannot identify any person who resembles Lynette Dawson being a staff member in these photographs. I have looked at my farewell card from 1989 and have checked all the signatures. There does not appear to be a signature from Lynette Dawson. As the hospital was so small, I knew all the staff, I do not think Lynette Dawson ever worked there. I do not recognise her name or her face."
[6]
Kerry Stantscheff
"3. I have referred to my Service Record in the industry of Nursing in New South Wales…I commenced my nursing training on 8 May 1974 at Manly District Hospital. I completed my training on 22 May 1977. I worked at a few hospitals, specifically I worked at Rockcastle Private Hospital located at Beach Street, Curl Curl from 18 January 1979 to 30 May 1980. I went overseas for four months in 1980 before returning to Australia where I worked at the Mater Hospital and Manly District Hospital. Whilst training as a beauty therapist I was working at the Eastern Suburbs Nursing Agency. I then returned to working at the Rockcastle Private Hospital on 28 December 1983 to 11 January 1993. It was in January 1993 that Rockcastle Private Hospital closed. From memory a number of the staff were transferred to Peninsula Private Hospital, once Rockcastle Private Hospital closed.
4.Whilst working at Rockcastle Private Hospital for the second time, I was employed as a casual Registered Nurse. I recall working up to five and a half days a week. My mother (Coral Jenson) was also working at the hospital in a permanent role as a Registered Nurse. I think my mother retired at the end of 1983 and I took over her permanent position. I think I worked full-time however over the years, I dropped to four days a week. I mostly worked morning and afternoon shifts, very little night shift. There were permanent night staff.
5. Over the years, I have collected various newspapers and newsletters. I have located an article from the local newspaper, The Manly Daily dated 8 January 1993. The title of the article is 'Few Patients, hospital dies'. This article refers to the Rockcastle Private Hospital in Harbord was closing on Sunday 10 January 1993.
6. About two years ago, I received a phone call from Detective Clancy. From memory, Detective Clancy was asking me about medical records from Rockcastle Private Hospital and did I know where they were located. I was aware the records were kept for seven years, for children it is longer and possibly the records were transferred to Peninsula Private Hospital. I did not speak to Detective Clancy until last week. Detective Clancy informed me that we had previously spoken, which I had remembered. This day she specifically asked me if I knew that [sic] a person by the name of Lynette Dawson and if she had ever worked at Rockcastle Private Hospital in the 1980s and wanted to confirm what dates I worked at the hospital. I informed her that I did not remember the name. I am aware that Chris Dawson is currently on trial. I think I was walking past the television when I heard the name Rockcastle which sparked my interest. I commenced searching on Google the trial of Chris Dawson and found that a neighbour who was a former patient at Rockcastle Private Hospital stated he had seen Lyn Dawson standing at the doorway at the hospital whilst he was recovering from a nose procedure in June 1984. I did work at the hospital at that time. A nose procedure was common surgery at the hospital.
7. I have seen images of a female who I know to be Lyn Dawson on the news over the past few weeks. I remember a nurse with blonde hair, who was very thin working at Rockcastle Private Hospital. She looked vaguely familiar [sic] to an image of Lyn Dawson, but the images of Lyn she has a rounder face. I cannot remember the length of time this nurse was working there but it was at some stage when I was working at the hospital in the 80s. This is my vague recollection. From my memory this female was working as an enrolled nurse at the hospital who was a good nurse. I recall her being a quiet person as there were a lot of strong personalities within the nursing staff.
8. I have a strong recollection of quite a few of the enrolled and registered nurses who worked at Rockcastle Private Hospital however I don't have a strong recollection of this particular blonde enrolled nurse. The reason for this, I am presuming she wasn't employed there for long. I don't recall her leaving the hospital. There was not a lot of agency staff working at the hospital.
9. Only recently I have heard about the disappearance of Lynette Dawson. I am aware there was a podcast about her disappearance, but I never listened to it. I have seen this matter on the news in the past six weeks. I have seen articles online as well. Prior to the podcast, I did not know anything about this matter.
…
12. Without absolute certainty I cannot say Lynette Dawson ever worked at Rockcastle Private Hospital whilst I was employed there in the 1980s."
The list annexed to Ms Brassey's statement names eight employees of the hospital in addition to the witnesses whose evidence is the subject of this application.
In her oral evidence, Ms Stantscheff was asked to clarify the meaning of paragraph 12 of her statement. That evidence was as follows:
"Q. Could you go to paragraph 12, please. Could you just read that paragraph out loud?
A. 'Without absolute certainty I cannot say Lynette Dawson ever worked at Rockcastle Private Hospital whilst I was employed there in the 1980s.'
Q. Could you explain what you mean by that.
A. I can't be certain that the nurse that I saw that I worked with during the eighties was Lynette Dawson."
The Crown also tendered a Crime Stoppers File relating to a report from an identified informant of an alleged sighting of Lynette Dawson at the Rockcastle Private Hospital in either June or July 1984. The report includes the following details:
"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 [sic, she] 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."
The evidence does not identify Mr Breese as the informant, but the timing of this sighting effectively conforms to the version given by him in evidence in this case. The Crown has tendered this document as a matter of fairness on this application having regard to the similarities between the evidence given by Ms Stantscheff recalling a nurse at the hospital "with blonde hair, who was very thin" and the Crime Stoppers File referring to Lynette Dawson as someone who "had lost weight".
Two of the detectives who were involved in the investigation into the disappearance of Lynette Dawson over the years are Damian Loone and John Pendergast. Both men have since left the police force. Each has already given evidence in the trial. Mr Dawson contends that the police investigation was so poorly carried out that vital information has potentially been lost or overlooked, with the result that Mr Dawson has been denied the prospect of a fair trial. Central to that contention for presently relevant purposes is that the police were contacted in approximately 1986 by the Breeses who were hopeful of providing details of having seen Lynette Dawson at the hospital, but that these overtures were ignored. Prompt attention to this information would, on Mr Dawson's analysis, have permitted an examination of the hospital employment records which were, it is assumed, then still in existence. Mr Dawson maintains that a failure to follow up this important lead amounted to an impropriety within the meaning of that word in s 138.
[7]
Consideration
Section 138 of the Evidence Act is in these relevant terms:
138 Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
R A Hulme J gave consideration to the meaning of "improper" in Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550 at [48]-[52]:
"Exclusion of evidence based on the Code
[48] Evidence derived from a failure to comply with the Code, unlike a failure to caution pursuant to s 139, is not 'taken to have been obtained improperly'. To give rise to inadmissibility pursuant to s 138 it would be first necessary to determine that the failure to comply with the Code was itself 'improper'.
What is 'improper'?
[49] The Evidence Act does not define what is 'improper' and so recourse may be had to the general law: Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at 618 [22]; [2005] NSWCCA 426 (Basten JA).
[50] In Ridgeway v The Queen (1995) 184 CLR 19 at 36 [23]; [1995] HCA 66 Mason CJ, Deane and Dawson JJ spoke of conduct by law enforcement officers that was not illegal but improper in terms of it being 'quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'.
[51] In Robinson v Woolworths Ltd Basten JA contrasted conduct which is 'quite inconsistent with the minimum standards' with conduct which merely blurs or contravenes those standards in some minor respect; 'it must be "quite inconsistent with" or "clearly inconsistent with" those standards'. Further, those 'minimum standards' must be assessed 'in a particular context': Robinson v Woolworths Ltd at [23]. In relation to the latter, it appears clear that his Honour was speaking of an assessment being made of the conduct of law enforcement officers in the context in which it occurred.
[52] In the present case, the assessment of the minimum standards of conduct involves an inquiry as to what is expected and required of police officers executing an arrest warrant upon a man in a public place who is intoxicated and unco-operative; who is not suspected by police of any criminal offence; and who was not intended to be questioned about such. In that context, was it 'quite' or 'clearly' inconsistent with such minimum standards that the police would not apply a suggested 'good practice' to caution the man?"
The burden of Ms David's cross-examination of Mr Pendergast and Mr Loone was that they, or at least one of them, had settled on a case theory that assumed Lynette Dawson was dead and that Mr Dawson had killed her. That approach had the result that these men, and the investigation which they headed, treated evidence suggesting that Lynette Dawson was still alive with an unwarranted and unprofessional disdain. That meant that important possible sources of (exculpatory) evidence were wrongly ignored, with the result that Mr Dawson has been deprived of an opportunity to point to evidence potentially capable of raising a reasonable doubt about the true fate of his former wife. The failure to follow up the Breeses' report of sighting Lynette Dawson in a timely or thorough way demonstrated a failure of policing in this case which, in context, Ms David wished to characterise as evidence that should not be admitted pursuant to s 138. The evidence of the five witnesses who said Lynette Dawson was never known to them is said in those circumstances to have been obtained improperly or in consequence of an impropriety.
I was referred in that context to what was said by the High Court in Lee v The Queen; Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [50]:
"[50] The wrongfulness of conduct on the part of the police or the prosecution has on occasions raised questions of policy, rather than questions of unfairness to an accused. It is, for example, questions of public policy which have largely informed the court's discretion to exclude evidence which has been improperly obtained. In Bunning v Cross, Stephen and Aickin JJ said that '[i]t is not fair play that is called in question in such cases but rather society's right to insist that those who enforce the law themselves respect it'. Their Honours said that the executive should not be free to disregard safeguards built into regulatory interventions affecting the liberty of the subject. Moreover, the courts 'should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law.' On the other hand, where 'accidental non-compliance' may be involved and there is 'no overt defiance of the will of the legislature', the court, as the tribunal upholding the law, will not be demeaned." [Citations omitted]
It is important to observe that Ms David's suggestion that Mr Loone intentionally and improperly foreclosed the existence of the possibility that Lynette Dawson was alive and that "sightings" of her were genuine was not accepted by him. Although Mr Loone did not say so in terms, the tone of his responses was to the effect that not every report that reached him was given the attention which, with the benefit of hindsight, it might have warranted, but that that was the nature of the investigation with which he was required to deal some 20 years or so after the events in question. Mr Loone did not accept that he did anything improper. The Crown maintained that even if the investigation into the disappearance of Lynette Dawson could be criticised, that did not translate into a conclusion that the evidence obtained from five nurses at the long-defunct Rockcastle Private Hospital in June 2022 was obtained either improperly or in consequence of an impropriety.
The concept of impropriety includes a failure to observe standards of honesty. Improper has a cognate meaning. The context in which a less than thorough investigation of the hospital occurred is not the context in which the current witnesses were secured. It may appear looking back that more should have been done at the time to investigate the Breeses' information. That does not in my view translate to a conclusion that recent attempts to make good the deficiencies arising from a less than perfect investigation some decades before mean that the evidence that is now sought to be tendered falls foul of the s 138 restriction.
Moreover, it seems to me that the desirability of admitting the evidence outweighs the undesirability of doing so. The "way in which the evidence was obtained" does not speak to the undesirability of admitting it. It is at best neutral. In addition, the evidence gives some context to the Breeses' observations without being fatal to it. In other words, the evidence of the five women does not mean that the Breeses' evidence must be wrong. The desirability of admitting the evidence is also enhanced by the fact that it would be artificial to exclude the cogent recollections of witnesses who worked at the hospital at the very time when the Breeses claim to have seen Lynette Dawson.
Ms David on behalf of Mr Dawson also maintained that the evidence was of little probative value. I am unable to accept that submission. It is self-evident that the evidence of the five women who worked as nurses at the hospital does not cover every day or every shift on or during which an unknown colleague could have worked. It is clearly possible that someone may have been employed as a nurse at the hospital in 1984 without ever becoming known to every other person who was working there in the same period. In order to have probative value in the present context, it is not necessary for the evidence to establish that the Breeses' observations and recollections were wrong. It is sufficient if the evidence provides additional information with the benefit of which I can assess the reliability or credibility of that evidence. The evidence in question here has the ability to inform the dispute about whether Lynette Dawson worked at the hospital in 1984, and whether for that reason she remained alive in 1984.
The evidence is also important without being conclusive or decisive about whether Lynette Dawson was alive in 1984. Evidence from the hospital records, if they had been available, would obviously be important in the quest to discover whether Lynette Dawson worked there at the relevant time. However, as Mr Dawson's submissions accurately observe, the records would not necessarily be conclusive or decisive if there were any possibility that Lynette Dawson wished to remain undetected and worked under a different name. That possibility would not, however, make the records of the hospital unimportant.
Finally, Mr Dawson submitted that I must refuse to admit the evidence because its probative value is outweighed by the danger of unfair prejudice to him: Evidence Act s 137.
I have already expressed my opinion about the probative value of the evidence. The argument that its admission would create unfair prejudice is effectively based upon the fact that by reason of the lateness of the evidence, Mr Dawson has been deprived of an opportunity to make further enquiries better to inform the issue of whether Lynette Dawson can be shown to have worked at the Rockcastle Private Hospital in 1984. I disagree with that for at least two reasons. First, the evidence of Detective Clancy's inquiries suggests quite convincingly that no investigations conducted now would likely produce any different result. Secondly, the complaint is really one that flows from the antiquity of the events with which this case is concerned. However, that is a regrettable and now unavoidable fact of life over which no-one in 2022 has any control. Ms David's submissions include reference to the fact that difficulties with making inquiries about the hospital were prayed in aid of an ultimately unsuccessful application permanently to stay these proceedings. Delay is a matter that infects several aspects of these proceedings and is a consideration that must be taken into account on the question of whether or not Mr Dawson has, or may have, suffered a significant forensic disadvantage because of the consequences of delay: Evidence Act s 165B. I do not consider that the fact of delay in this case means that Mr Dawson is unfairly prejudiced if the evidence of the five proposed witnesses is admitted.
[8]
Conclusion
In my opinion, the evidence of Linda McCarthy, Deborah Brassey, Susan Cooper, Carol Clarke and Kerry Stantscheff is admissible.
[9]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 September 2022
Detective Loone made a note relating to the Rockcastle Hospital when the investigation resumed in 2003. The note is in these terms:
"Employment records checked. No records of Dawson ever having been employed at Rockcastle Private".
Mr Loone was unable when giving evidence to identify whether the informant referred to in the Crime Stoppers File quoted above was Mr Breese. In my view, there is a very strong inference that it was him. That is because the file refers to the informant having undergone minor surgery, in June or July 1984, and that the observations could be supported by "a person who came to visit" him, all of which matters are referred to by Mr Breese in this Court.
Mr Dawson contends that if this note was made in 2003 it was by then both far too late and lacking in adequate detail. It is not entirely clear who checked the records in the way referred to in that note or when it was done. The note appears on one view to have been made at a time when the investigation resumed on or about 9 September 2003. It is also not clear if it was made by Detective Loone or Detective Pendergast or by someone else. Whatever its provenance, Mr Dawson maintains that it does not demonstrate that appropriate or timely steps were taken by the police, when records and potentially other witnesses were still available, which in all probability would have clarified whether or not Lynette Dawson was working at the hospital at the time she was allegedly seen there by the Breeses. These police failings also amounted to an impropriety in Mr Dawson's submission.
Mr Loone gave evidence about the attempts to obtain records from the hospital. It was as follows:
"Q. During the course of your work on investigating the disappearance of Lynette Dawson, what, if anything, did you learn about a suggestion that she had been seen in 1984 working at a hospital then called Rockcastle Hospital located in Dee Why?
A. Yes, I believe Sergeant Pendergast from the Dee Why police made those enquiries at the Rockcastle Hospital.
Q. When did you become aware of that line of inquiry about whether or not she was working there at Rockcastle Hospital?
DAVID: I object because Pendergast has not given any of that evidence and my submission is it is hearsay about an inquiry that somebody else did about which he hasn't given any evidence.
HIS HONOUR: When did he become aware of that line of inquiry?
DAVID: Yes, your Honour. I won't press it. I'm going to withdraw the objection and see how it goes.
CROWN PROSECUTOR: When did you learn of that line of inquiry, suggesting that Lynette Dawson worked at the Rockcastle Hospital, Dee Why, working there in 1984?
A. Sometime in 1998, after I took the inquiry on in July 1998.
Q. How did you learn about it, what was the source of
A. It was either a Crime Stoppers report or a phone call to the police station. I can't recall exactly what it was, but there was some information that she had allegedly been seen at a private hospital.
Q. Those two potential sources that you just mentioned, Crime Stoppers or Dee Why detectives, whether it was one or the other, was there an informant was the name of the person that made that contact to either Crime Stoppers or Dee Why police provided or was it anonymous or was it something else?
A. I believe there may have been a person spoken to and Sergeant Pendergast made those inquiries.
Q. By the time he concluded those inquiries, whatever they were, what was your understanding, what was your belief, I beg your pardon, as to whether there was any further work to be done on that line of inquiry concerning Lynette Dawson working at Rockcastle Hospital in 1984?
A. Well, I believe from the conversation I would have had with Pendergast oh, well, the conversation Pendergast told me that
DAVID: Again, your Honour.
CROWN PROSECUTOR: I'm not asking you what the conversation was, I'm just asking you what your belief was as a result of whatever inquiries were made by Mr Pendergast?
DAVID: I won't press it.
CROWN PROSECUTOR: What's your answer?
A. It wasn't her.
…
Q. So now to the issue or the evidence of the hospital. You were asked some questions by the learned Crown about that?
A. The hospital?
Q. About the Rockcastle Hospital?
A. Yes.
Q. You suggested that it was in fact Detective Pendergast who conducted some inquiries?
A. Yes.
Q. Detective Pendergast had told this Court that he conducted no such inquiries?
A. Well, there was I recall a running sheet on TIMS with that Pendergast had made enquiries at 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.
Q. You are aware, are you, that the people who say they saw Lynette Dawson at the Rockcastle Hospital were Peter Breese and Jill Breese?
A. No, I'm not. No, I don't know, no.
…
Q. Whilst you were at The Rocks Police Station you became aware of an inquiry having been made about suggesting that Lyn Dawson had been seen working at Rockdale Hospital. Do you agree?
A. (No answer).
HIS HONOUR: Rockdale?
DAVID: Rockcastle Hospital, I am sorry, Rockcastle Hospital?
A. No, I thought it was well before that, back in the nineties at Dee Why.
Q. You became aware of that in 1998 and 1999?
A. Yes.
Q. So you were already aware of some potential sighting at the Rockcastle Hospital, you became aware of that in 1998 and 1989?
A. Yes.
Q. It is the case, isn't it, that during the period of time when you were at The Rocks Police Station, you were working still on Lynette Dawson's case?
A. Yes.
Q. During the time that you were there were you cooperating with Crime Stoppers? Whilst you were at The Rocks Police Station did you receive a call there about the Rockcastle Private Hospital sighting, a further phone call?
A. I can't recall that, no.
Q. Did you draw to the coroner's attention at any time that there had been a sighting, a reported sighting at the Rockcastle Hospital?
A. Well, no, those enquiries were made by Pendergast back in 1988 and 1999 and it wasn't her. If it wasn't her he wouldn't have included it in the brief.
Q. Just a moment, you have no record of what inquiries Pendergast made, have you?
A. I said I saw a TIMS running sheet that he made inquiries about.
Q. Where is that TIMS running sheet?
A. I don't know, it should be with the brief, it was ported over to e@gle.i.
Q. There is no record of the enquiries in relation to the Breeses?
A. No.
Q. You did not tell the coroner about the fact that others, that two people said that they had seen Lynette Dawson at the Rockcastle Hospital, did you?
A. No.
Q. You did not yourself make inquiries to ascertain what the people at Rockcastle, who had made the sighting at Rockcastle might have known?
A. No, because it was done by Pendergast.
Q. My question was you didn't do anything?
A. I didn't do it, no.
Q. So you were relying on something that Pendergast had said?
A. Yes.
Q. About which you are not able to provide to this Court?
A. Yes.
Q. Your failure to bring the sightings to the attention of the coroner, to the coroner's attention was based upon the fact that you considered it to be a misleading lead, didn't you?
A. Yes.
Q. Did you not think that determining whether something was a misleading lead was a matter for the coroner?
A. Well, no, I think Pendergast investigated that and said it wasn't her, so it wasn't part of the brief.
Q. Pendergast didn't provide you with any statements, did he, about what those witnesses had seen?
A. There was a TIMS running sheet with information that he went there, checked records and she was never employed there.
Q. I suggest to you that Pendergast, that there was no, just coming back, there was no statement, was there, from any witness that said they had seen Lynette Dawson?
A. No.
Q. It is your job, isn't it, or it was your job as a detective to take statements from people whether or not you might believe it or not, wasn't it, to provide evidence for the coroner to make up their mind?
A. Well, depending on the circumstances. If those enquiries were fruitless we made those enquiries, well, there would be no statement taken. It was proved, well Pendergast in his running sheet stated that he made diligent enquiries there and she was not employed there. In fact she wasn't a registered nurse anywhere from the information provided by Constable Karen Dawson from the Missing Person's Unit, so she couldn't practice.
Q. Can you produce that running sheet?
A. I can't, no, I don't have it.
Q. You say you have sighted a running sheet?
A. I did sight a running sheet, it would have been back in 1999.
Q. It is the case, isn't it, that it was just yet another bit of information that you considered to be inconsistent with your case theory?
A. No.
Q. I suggest to you that you didn't bring it to the attention of the coroner because it was inconsistent with your case theory?
A. No.
Q. And that you made no attempt whatsoever to put evidence before the coroner in the course of your investigations that might have assisted the coroner to make their own determination?
A. No, I don't believe so, no.
Q. The Breeses stated that they may made two efforts to communicate with police and that they were ignored?
A. What police?
Q. One of them was The Rocks Police Station where you were at the time?
A. Yes.
Q. But you don't have any recollection of receiving any calls?
A. No.
Q. You don't recollect personally telling anybody that she was or telling an officer to tell them that she was buried under the pool?
A. I have never said that.
Q. The fact of the matter is, isn't it, that Detective Pendergast was actually not assigned to this investigation?
A. Yes, he was initially.
Q. That he was in fact helping the investigation?
A. There was myself, Pendergast and a Constable Gill, I believe. Pendergast took a number of statements.
Q. When you were asked some questions about this issue of the failure to mention at all any sightings to the coroner, you have testified that you considered well, we had a lot of misleading leads?
A. Yes, we did.
Q. We had a lot of false sightings?
A. Yes.
Q. Yet you were unable to bring any evidence to demonstrate that the sighting was false?
A. Well, in saying that we would have spoken or we would have made diligent enquiries and those sightings were not confirmed.
Q. Just come back to the question was you did not provide any evidence as to what enquiries you had made, you did not produce that to the coroner, did you?
A. Well, no.
Q. In fact, you did not even bother telling the coroner about them?
A. There may have been a summary there of unconfirmed reported sightings or false sightings, I can't recall what the document said but it was a coroner's inquest, he was conducting his own inquiry.
Q. I am suggesting to you that you did not at any stage tell the coroner that there had been some sightings in either inquest?
A. Well, we might have said alleged sightings but not sightings.
Q. I am suggesting that you didn't even say that they were alleged sights?
A. Well, I can't recall from 2003 what Sergeant Fordham put forward to the coroner.
Q. Sergeant Fordham was relying upon what you had provided to him?
A. Yes.
Q. Isn't that the case?
A. Yes.
Q. And you didn't provide any information about that, any sighting, did you?
A. Well, because sightings allegedly, well, those alleged sightings were investigated and found to be false.
Q. Did you ever tell the coroner about the false sighting at Rockdale Hospital?
A. No, I don't believe so.
Q. Rockcastle, I am sorry?
A. Rockcastle.
Q. Officer, if you have a copy of your statement dated 17 October 1999 (shown). In your statement at paragraph seven do you agree and this is your report to the Coronial Inquest, that you stated at paragraph seven, "There had been no recorded sightings of Lynette Joy Dawson since that time", meaning since 8 January 1982?
A. Yes.
Q. And you went on to say the only alleged contacts by her had been made to her husband Christopher Dawson?
A. Yes."
Mr Pendergast's evidence on the topic was more limited:
"Q. In the course of your involvement with Detective Loone, did you become aware of the fact that it was suggested that Lynette Dawson had been seen working at Rockcastle Hospital in 1984?
A. No, I can't remember that.
Q. What, if any, enquiries did you make with Rockcastle Hospital?
A. I can't recall."
The Crown tendered a document on this application headed "Enquiries to obtain records for Rockcastle Private Hospital". The document is in the form of a series of entries made by Detective Senior Constable Rowena Clancy between 14 June 2019 and 25 July 2019. These entries all relate to attempts by her to locate information from or about the Rockcastle Private Hospital with the aim of confirming, if possible, the fact that Lynette Dawson may have worked there as a nurse at the time of the alleged sighting by the Breeses in 1984. The entry for 4 July 2019 is worth noting:
"Numerous enquiries have been exhausted trying to locate both patient and staff records from Rockcastle Private Hospital.
Attached is the Investigator's Note outlining all the inquiries which have been made, in an attempt to locate records from 1984 at Rockcastle private Hospital located at 8 Beach Street, Curl Curl.
In summary, all lines of enquiry have been exhausted to locate staff and patient records for Rockcastle Private Hospital. The location of these records cannot be found nor can records be located. It is likely the staff and patient records for Rockcastle private Hospital have since been destroyed since the closure of the hospital in 1993."
Without including details of the inquiries undertaken, it is sufficient to observe that Detective Clancy's description of her inquiries as "exhaustive" is borne out by what she did.