HEADNOTE

JUDGMENT

Ward P

Payne JA

Application of the proviso in this case

Orders

Adamson JA

Relevant statutory provisions

Conclusion

The Crown case

The applicant’s case

The trial

The Crown’s opening submissions

The Crown’s closing submissions

The defence opening submissions

The defence closing submissions

The alleged lies relied on by the Crown as implied admissions on the basis that the applicant evinced a consciousness of guilt

The verdict judgment

The finding that it was not reasonably possible that the applicant received the Northbridge Baths phone call and that the applicant’s version to that effect was untrue

The use of lies as a consciousness of guilt

The decision not to give a s 165B direction

The requirements of a trial judge when coming to a verdict in a trial by judge alone

Ground 1: alleged failure by the trial judge to give himself a warning pursuant to s 165B of the Evidence Act

The relevant principles

The application of the principles in the present case

The matters relied on before the trial judge

The bankcard statements

The applicant’s versions

The evidence at trial

Whether the applicant suffered a significant forensic disadvantage by reason of delay

The records of Northbridge Baths including the telephone records

Other telephone records

Relevance of the refusal to grant a permanent stay

Conclusion

Grounds 2 and 3: alleged errors with respect to use of lies as consciousness of guilt

Ground 4(ii): alleged unreasonable verdict

The applicable principles

The competing hypotheses

Evidence which does not need to be considered

The facts

The deceased and her family

The applicant and his family

The marriage of the applicant and the deceased and their family

The applicant’s connection with JC

The circumstances of their meeting

The applicant’s behaviour towards potential rivals for JC

The deceased’s work and financial circumstances

The initial sexual approach by the applicant to JC and its escalation

JC’s move into the Bayview house in October 1981

The applicant’s nose operation and the departure of JC from the Bayview house

The commissioned portraits of XD and YD

The North Manly unit

The trampoline incident

The Christmas party in early December 1981

The proposed sale of the Bayview house

The Gold Coast trip

Christmas 1981

Boxing Day 1981 to New Year 1982

Early January 1982

JC’s trip to South West Rocks

Family movements in early January 1982

8 January 1982

9 January 1982: the Northbridge Baths

The applicant’s call to JC and his collection of her from South West Rocks

The return of JC to Sydney

11 January 1982

Ms Andrew’s observations of the backyard of the Bayview house

The sketches of XD and YD which the deceased had commissioned

JC’s 18th birthday

The missing person’s report made by the applicant on 18 February 1982

Alleged sighting by Sue Butlin

Ongoing Missing Persons investigation

The dissolution of the marriage of the applicant and the deceased

The marriage of JC and the applicant, their move to Queensland and the birth of KD

The progress of the investigation into the deceased’s disappearance

The applicant’s representation about what Ian Kennedy had told him

The end of the marriage of JC and the applicant

The meeting between JC and Greg and Merilyn Simms

The Mayger/Wright investigation from 1990-1992

The investigation conducted by Detective Damian Loone from 1998 to July 2015

The school reunion in about 2007

The investigation conducted by Detective Daniel Poole from July 2015

Proof of life enquiries

Character evidence

Other matters

Consideration of ground 4(ii)

The limited challenge to JC’s evidence

The alleged hypothesis consistent with innocence

Grounds 4(i) and 5(i) and (ii)

The application of the proviso

Proposed orders

HEADNOTE

[This headnote is not to be read as part of the judgment]

The deceased, Lynette Dawson, and her husband, the applicant, Christopher Dawson, lived in Bayview, on Sydney’s Northern Beaches, with their two children, who were aged 4 and 2 at the time of their mother’s disappearance. On 18 February 1982, the applicant reported the deceased missing, saying he had last seen her on 9 January 1982.

Over the two years prior to the deceased’s disappearance, the applicant had formed a sexual relationship with JC, a teenager and student at the high school where the applicant taught. JC worked as a babysitter for the Dawsons and, for a brief period while the deceased was alive, lived at their Bayview home. On about 11 January 1982, the applicant moved JC into the Bayview home.

There have been no reliable sightings of the deceased since 8 January 1982. On 12 December 2018, the applicant was arrested and charged with the deceased’s murder, to which he pleaded not guilty. Between May and July 2022, the applicant was tried by judge alone in the Supreme Court. The Crown case, which was wholly circumstantial, was that on 8 January 1982 or before noon on 9 January 1982, the applicant intended to kill and did kill the deceased, in order to install JC in his household in place of the deceased. The applicant’s case was that the Crown had not excluded beyond reasonable doubt the possibility that the deceased, distressed at the state of her marriage, had voluntarily left the Bayview home and was still alive after noon on 9 January 1982.

On 30 August 2022, the trial judge found the applicant guilty of the deceased’s murder. Three aspects of the decision were particularly important on appeal. First, as the trial judge was not satisfied that the applicant had suffered a significant forensic disadvantage because of delay, he did not warn himself under s 165B of the Evidence Act 1995 (NSW) (although he otherwise took the consequences of delay into account). Secondly, the trial judge found that the applicant had lied by representing that the deceased called him at the Northbridge Baths on the afternoon of 9 January 1982 and at various times thereafter. Thirdly, although the Crown relied on only five discrete lies (COG (1)-(5)) as amounting to a consciousness of guilt, the trial judge relied on other lies told by the applicant in this way.

The applicant sought leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The issues on appeal were:

(i)   Was the verdict unreasonable on the whole of the evidence? (ground 4(ii))

(ii)   Did the trial judge err by failing to give himself a warning under s 165B of the Evidence Act? (ground 1)

(iii)   Were aspects of the trial judge’s reasoning illogical or clearly mistaken in a way that amounted to a miscarriage of justice or rendered his verdict unreasonable? (grounds 4(i) and 5)

(iv)   Did the trial judge err in his use of lies as implied admissions? (grounds 2 and 3)

(v)   Notwithstanding the Court’s finding that the trial judge erred in relation to issue (iv), should the Court apply the proviso in s 6(1) of the Criminal Appeal Act and dismiss the appeal on the basis that no substantial miscarriage of justice actually occurred?

The Court (Adamson JA, Ward P and Payne JA agreeing at [1] and [30] respectively) held, dismissing the appeal:

On issue (i): alleged unreasonable verdict

(1)   The approach when reviewing the reasonableness of a conviction by a judge alone is the same as that following a jury trial, namely, to determine whether it was open to the tribunal of fact to be satisfied of the applicant’s guilt beyond reasonable doubt: Adamson JA at [153]-[154]. So as not to divert itself from that task, the appeal court is to view the trial judge’s reasons for verdict with circumspection: Adamson JA at [154].

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied.

(2)   In assessing whether the evidence could support a conviction, the Court disregarded evidence that the trial judge had rejected as unreliable: Adamson JA at [161]-[162]. Further, the Court approached the evidence on the basis that the Crown no longer relied on COG (1)-(5) to establish consciousness of guilt: Payne JA at [26]; Adamson JA at [163], [362].

(3)   Except where rejected at trial, all of JC’s evidence was accepted, since it was internally consistent and corroborated: Adamson JA at [339]-[347]. The trial judge’s error in relying on certain lies as a consciousness of guilt (see issue (iv)) did not affect his assessment of JC’s credibility: [347].

(4)   The Crown’s circumstantial case was compelling: Ward P at [5]; Payne JA at [28]-[29]; Adamson JA at [376]. Given her close family bonds, the deceased would not have left her marriage or her children voluntarily: Adamson JA at [349]. After 8 January 1982 (except according to the applicant’s uncorroborated evidence), the deceased neither contacted friends nor family, nor attended work: Adamson JA at [288], [351]-[352]. The applicant’s actions showed his determination to make his relationship with JC public and permanent: Adamson JA at [364]. The applicant was prepared to take risks to preserve their relationship when JC tried to end it: Adamson JA at [227]-[252], [363]-[364]. Shortly after the deceased’s disappearance, the applicant induced JC to return from her holiday with friends in South West Rocks and move into the Bayview home by telling her that the deceased had gone and was not coming back: Adamson JA at [370]. When JC agreed, he drove to South West Rocks to collect her and immediately installed her in the Bayview home as his intimate partner: Adamson JA at [281]-[283], [343]-[345], [372]. The deceased’s possessions, including her rings and contact lenses, remained at the Bayview home after her disappearance and the applicant invited JC to take what she wanted from those possessions: Adamson JA at [286], [372].

(5)   The applicant’s “hypothesis consistent with innocence” was not reasonably open: Ward P at [4]; Payne JA at [29]; Adamson JA at [349]-[376]. The applicant’s lies and half-truths showed he was entirely without credibility: Adamson JA at [352]-[356], [373]. No credence could be given to the applicant’s uncorroborated claim that the deceased called him at the Northbridge Baths on 9 January 1982: Adamson JA at [352], [358].

(6)   The evidence proved the applicant’s guilt beyond reasonable doubt; the verdict was not unreasonable: Ward P at [4]; Payne JA at [7], [28]-[29]; Adamson JA at [376].

On issue (ii): whether a warning under s 165B of the Evidence Act was required

(7)   A warning under s 165B of the Evidence Act is required only where a trial judge is satisfied that the party relying on the section has established that the delay in prosecuting caused them to suffer a real forensic disadvantage: Adamson JA at [93], [98]. The question invites attention to the facts of the particular case: Adamson JA at [96]-[102].

Brown v R [2022] NSWCCA 116; Shanmugam v R [2021] NSWCCA 125; Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354; Jarrett v R (2014) 86 NSWLR 623; Groundstroem v R [2013] NSWCCA 237; R v Cassebohm (2011) 109 SASR 465; [2011] SASCFC 29, applied.

Binns v R [2017] NSWCCA 280, cited.

(8)   The applicant failed to show that the almost 40 year delay in prosecution had caused him a significant forensic disadvantage: Ward P at [1]; Payne JA at [6]; Adamson JA at [130]-[131]. First, given the applicant’s different versions of events, it was unclear whether the unavailability of certain bankcard statements was relevant and, in any case, it was his own failure to retain those statements (not any delay) that caused them to be unavailable: Adamson JA at [116]-[118]. Secondly, the lack of records showing the applicant was working at the Northbridge Baths on 9 January 1982 caused no disadvantage, since the Crown conceded the applicant was working there on that day: Adamson JA at [120]-[122]. Thirdly, records of phone calls made to the Northbridge Baths on 9 February 1982 were unavailable because of limited technology at the time, not because of delay, and records of phone calls to the applicant’s house would not have assisted the applicant: Adamson JA at [126]-[128].

On issue (iii): alleged illogical or mistaken reasoning

(9)   If, in a trial by judge alone, the trial judge uses illogical or clearly mistaken reasoning to decide an important question of fact, that may amount to a miscarriage of justice: Adamson JA at [377]. When considering such a ground, the whole verdict judgment must be read fairly: Adamson JA at [385].

EE v R [2023] NSWCCA 188, applied.

Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70, cited.

(10)   The deliberation process requires all the evidence to be taken into account. However, a verdict judgment can only proceed word by word and sentence by sentence. The judgment must explain the reasoning but is not required to simulate the reasoning process: Adamson JA at [396]. The way in which the reasons are worded and ordered is a matter for the trial judge: Adamson JA at [395].

(11)   The trial judge was neither illogical nor clearly mistaken in his reasons for rejecting evidence of the Northbridge Baths phone call and other evidence showing the deceased was alive after 8 January 1982, even though some aspects of his language could, on one reading, suggest that he relied on insufficient evidence when reaching that conclusion. Rather, when the judgment is read as a whole, it is clear that the trial judge relied on all the evidence and was mindful of the Crown’s obligation to exclude beyond reasonable doubt the possibility that the deceased was alive after midday on 9 January 1982: Ward P at [1]; Payne JA at [6]; Adamson JA at [382]-[394], [397].

On issue (iv): alleged error regarding use of lies as a consciousness of guilt

(12)   Certain lies, under strict conditions, may be used as implied admissions because they show consciousness of guilt on the part of an accused (Edwards lies). They must be distinguished from other lies which are relevant to the credibility of accounts the accused has given to others and, if the accused gives evidence, to that evidence (Zoneff lies): Adamson JA at [134].

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, applied.

(13)   The tribunal of fact can only use a lie as an implied admission if the prosecutor relies on the lie for that purpose and three conditions are satisfied. First, the statement sought to be relied on is proved to be a deliberate lie. Secondly, the only explanation for the lie is that the accused knew the truth would implicate them in the offence. Thirdly, the tribunal of fact is directed or, in the case of trial by judge alone, self-directs that there may be other reasons for the lie other than a consciousness of guilt: Adamson JA at [137].

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, applied.

(14)   At trial, the Crown relied on COG (1)-(5) as Edwards lies. The judge erred by relying on other lies in addition to these lies as amounting to a consciousness of guilt: Ward P at [1]; Payne JA at [6]; Adamson JA at [145]-[147].

(15)   Although the trial judge set out the substance of the Edwards requirements, his Honour failed to articulate whether each of COG (1)-(5) satisfied the Edwards conditions and if so why: Adamson JA at [148]-[149]. This was an error in his Honour’s reasoning: Ward P at [1]; Payne JA at [6]; Adamson JA at [149].

On issue (v): whether the proviso ought be applied

(16)   Even if an appeal court finds there has been an error of law or miscarriage of justice, it may dismiss the appeal provided it is satisfied that no substantial miscarriage of justice has actually occurred pursuant to s 6(1) of the Criminal Appeal Act: Payne JA at [10]-[25]; Adamson JA at [400]-[406]. There is no single test for what constitutes a substantial miscarriage of justice.

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7, applied.

(17)   Before the proviso can be applied, the court must be satisfied of the applicant’s guilt, on the whole of the record of trial: Ward P at [4]; Payne JA at [19]; Adamson JA at [401], [406]. That task is entrusted to each member of the court personally and is performed with the advantages and disadvantages of deciding an appeal on the record of trial.

Cooper v The Queen (2012) 293 ALR 17; [2012] HCA 50; Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, applied.

(18)   The appeal court must consider the nature and effect of the error in every case, because some errors will prevent the appeal court from assessing the accused’s guilt for itself: Payne JA at [20]; Adamson JA at [401], [403]-[406].

Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44; Wilde v R (1988) 164 CLR 365 at 373; [1988] HCA 6; Pratten v R [2021] NSWCCA 251; Firbank v R [2011] NSWCCA 171; (2011) 223 A Crim R 301, cited.

(19)   The evidence proved beyond reasonable doubt that the applicant was guilty and no substantial miscarriage of justice occurred: Ward P at [3]-[4]; Payne JA at [28]; Adamson JA at [409]-[410], [412]-[413]. The trial judge’s error in his use of Edwards lies (see issue (iv)) did not prevent the Court’s assessment of guilt on appeal: Payne JA at [26]. The applicant’s statements, many of which were lies, were largely superfluous to the Crown’s case: Adamson JA at [411].

JUDGMENT

1. WARD P: I have had the advantage of reading in draft the comprehensive reasons of Adamson JA, with which I agree. As to grounds 2 and 3, I wish to add that it seems to me that the experienced trial judge, in the section of the verdict judgment headed “Lies as Consciousness of Guilt”, may have been intending to gather together the various lies and inconsistencies that could permissibly be used when assessing the credibility of the accounts given by the applicant to others as to the disappearance of his wife, without necessarily treating each of them as an Edwards lie (see Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63), since his Honour had earlier (at [568]-[573]) directed himself as to the conditions precedent for using such a lie (or omission) as a consciousness of guilt and had stated at [573] his intention to apply the principles mandated in that regard. In that sense, the heading is unfortunate but I do not read headings as part of the reasons for judgment as such.

2. However, as Adamson JA has noted, in making a finding as to lies, his Honour referred to various of the lies on which the Crown did not expressly rely in this context as evidence of a consciousness of guilt and did not separately distinguish between Edwards lies (in respect of which the conditions in Edwards were required to be satisfied) and other lies or inconsistencies (in respect of which those conditions were not required to be satisfied). Thus, for the reasons more fully set out by Adamson JA there was error.

3. Nevertheless, I too have concluded that the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied. In my opinion, no substantial miscarriage of justice has occurred as a result of the error identified in grounds 2 and 3 of the grounds of appeal.

4. I have independently reviewed the evidence (other than that excluded by the trial judge), which has been helpfully summarised in detail by Adamson JA, and the record of the proceedings both for the purposes of deciding whether the proviso should be applied (given the error found in relation to grounds 2 and 3) and, separately, for the purpose of considering the unreasonable verdict ground of appeal (ground 4). I am firmly of the view that the Crown proved beyond reasonable doubt the guilt of the applicant on the charge of murdering his wife and excluded beyond reasonable doubt the hypothesis that the deceased voluntarily left the Bayview Home, her husband, children and family on 8 or 9 January 1982. The circumstantial case against the applicant was compelling and there is no reasonable doubt as to the applicant’s guilt. No substantial miscarriage of justice has occurred. Rather, guilt was proved to the criminal standard on the admissible evidence at the trial (see Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7 per Kiefel CJ, Bell, Keane and Gordon JJ at [12]).

5. For completeness, I also agree with the supplementary observations of Payne JA.

6. PAYNE JA:  I have had the advantage of reading Adamson JA’s comprehensive reasons in draft. I agree with her Honour, for the reasons she gives, that grounds 1 and 5(i) and (ii) of the appeal must be rejected. I also agree with her Honour, for the reasons she gives, that grounds 2 and 3 of the appeal should be allowed.

7. By ground 4(ii), the applicant contended that the primary judge’s verdict was unreasonable. I have independently assessed the evidence relied on at trial, as well as the record of the proceedings, and I have no doubt about the applicant’s guilt. This was a very strong circumstantial case. Ground 4(ii) should be dismissed.

8. Further, I am not persuaded that the verdict was unreasonable because of alleged errors in the primary judge’s reasoning. I therefore agree that ground 4(i) should be rejected.

9. On the application of the proviso, I have reached the same conclusion as Adamson JA. Notwithstanding the errors in the primary judge’s reasoning established by grounds 2 and 3, there was no substantial miscarriage of justice, and I would dismiss the appeal.

10. Section 6(1) of the Criminal Appeal Act 1912 (NSW) provides:

(1)    The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

11. In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 a unanimous High Court outlined the history and background of the proviso and explained its purpose. Before the criminal appeal statute was enacted, the Court said, English appeal courts would often order a new trial automatically if, in the appeal courts’ view, any inadmissible evidence had been left to the jury. This inflexible approach was called the “Exchequer rule”. How strict the common law rule really was, as a matter of historical fact, may be contestable, and there is reason to believe the rule’s real force was that an appellant was entitled to a new trial only when it seemed that the irregularity might have affected the jury’s verdict: Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 per Gageler J at [103]-[109].

12. The Criminal Appeal Act operated to abolish the Exchequer rule and replace it with a statutory mechanism. That mechanism was the proviso, which rests on a distinction between a bare “miscarriage of justice” and a “substantial” miscarriage of justice. As the High Court explained in Weiss, a “miscarriage of justice”, in the Exchequer sense, was any departure from trial according to law. A “substantial” miscarriage is something more than a bare departure from the applicable rules, as the High Court explained:

[18]    By using the words "substantial" and "actually occurred" in the proviso, the legislature evidently intended to require consideration of matters beyond the bare question of whether there had been any departure from applicable rules of evidence or procedure. On that understanding of the section as a whole, the word "substantial", in the phrase "substantial miscarriage of justice", was more than mere ornamentation.

13. An appellate court’s task, when considering whether to apply the proviso, is to decide whether or not a “substantial miscarriage of justice has actually occurred”: Weiss at [35]-[36]. The court is not to perform that task by considering what a “hypothetical jury”, properly instructed, would or might have done. Nor is the test whether the error at trial deprived the accused of a “real chance of acquittal” or whether, even without the error, conviction was inevitable: Weiss at [32]-[33].

14. Rather, the court is to decide, for itself, whether despite the error at trial, no “substantial miscarriage of justice” has actually occurred. If no such miscarriage has occurred, the court may dismiss the appeal.

15. As Weiss held, “no single universally applicable description of what constitutes ‘no substantial miscarriage of justice’ can be given”: Weiss at [44]. However, the Court held “one negative proposition may safely be offered”:

[44]    It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.

16. It follows that it is a necessary condition, before applying the proviso, for the appeal court to be satisfied, on the whole of the record of trial, that the accused is guilty. This is “an objective task not materially different from other appellate tasks” and it is “to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction”: Weiss at [39]. As the majority in Cooper v The Queen (2012) 293 ALR 17; [2012] HCA 50 explained, the task is entrusted to each appeal judge personally:

[61]    The assessment demands a survey of the whole of the trial record. The task is to be carried out by each member of the appellate court personally. The relevant question to be asked is not whether the jury which returned the guilty verdict would have done so if there had been no error. Nor is it whether a reasonable jury would convict. Instead, the question for each member of the appellate court personally is whether that member thinks that the evidence properly received established the accused's guilt beyond reasonable doubt.

17. However, Weiss further acknowledged at [45] that there were some cases where, though the appellate court is convinced of the accused’s guilt, it would not be appropriate to apply the proviso, for example if there has been a “significant denial of procedural fairness”, or if there has been a misdirection so serious that it prevents the jury from performing its function (eg Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at [48], where the misdirection was a failure to instruct the jury their findings on alternative factual scenarios had to be unanimous).

18. In Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7, the High Court was invited to overrule or qualify Weiss. All seven judges of the High Court refused to overrule Weiss. The majority (Kiefel CJ, Bell, Keane and Gordon JJ) clarified Weiss’ analysis of the statute in the following way:

[12]    Consistently with the long tradition of the criminal law, any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the common form provision … The determination of whether, notwithstanding the error, there has been no substantial miscarriage of justice is committed to the appellate court. The appellate court's assessment does not turn on its estimate of the verdict that a hypothetical jury, whether "this jury" or a "reasonable jury", might have returned had the error not occurred. The concepts of a "lost chance of acquittal" and its converse the "inevitability of conviction" do not serve as tests because the appellate court is not predicting the outcome of a hypothetical error-free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had. (footnotes removed, emphasis added)

19. The majority confirmed that proof of the accused’s guilt, in the view of the members of the appellate court, is a necessary condition for engaging the proviso (that is a negative proposition) – but, in many cases, may also be a sufficient condition:

[13]    The influence of an error on the deliberations of a jury can never be known. The stipulation of the negative proposition as a condition of the engagement of the proviso recognises that the conviction of a person whose guilt has not been proved, beyond reasonable doubt, on admissible evidence, will always be a substantial miscarriage of justice. On the other hand, the appellate court's satisfaction that guilt has been proved to the criminal standard on the admissible evidence will in many instances support the conclusion that there has been no substantial miscarriage of justice notwithstanding a wrong decision on a question of law … or a miscarriage of justice … This is to recognise and give effect to the evident purpose of the enactment of the proviso to do away with the formalism of the Exchequer rule. (footnotes removed, emphasis added).

20. The majority in Kalbasi stressed the importance of considering “the nature and effect of the error in every case”: at [15]. That was because some errors may prevent the appeal court from assessing guilt for itself:

[15]    … some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury’s consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of “process” and “outcome” may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter.

21. For example, in Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, the High Court refused to apply the proviso because the error at trial (admitting certain irrelevant evidence) may have affected the jury’s assessment of a complainant’s credibility, which was central to the Crown’s case. The appeal court was not in a position to assess the complainant’s credibility for itself and therefore could not be satisfied of the accused’s guilt.

22. In Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, Gageler J, who did not form part of the majority in Kalbasi, explained that his judgment in that case reflected his difficulty in squaring “the common law understanding of the jury as the constitutional tribunal for the determination of criminal guilt” with Weiss’ “refram[ing]” of the proviso around the appeal court’s own assessment of the accused’s guilt: Hofer at [84], [85]. In Hofer, Gageler J acknowledged that Weiss had at no point been reopened and that there was no application to reopen it in that case. His Honour concluded he was compelled to follow Weiss: Hofer at [97]. The effect of Weiss, Gageler J said, was:

[93]    Where, “making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record”, the court is persuaded to the conclusion that the evidence properly admitted at trial established guilt beyond reasonable doubt, the court must give effect to “its own independent assessment” …..

[94]    If the appellate court’s assessment is to be truly independent, then the mere circumstance that there is a real possibility that the trial jury might have made a different assessment had the trial jury performed the appellate function cannot be allowed to divert the appellate court from forming and giving effect to its own conclusion of guilt. That is where the logic of Weiss leads.

23. In Hofer, the majority reaffirmed Weiss and its interpretation in Kalbasi. The approach, the majority found, was not to predict the outcome of a hypothetical error-free trial, but to decide whether “notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had”: at [59]. This was a “necessary (albeit not necessarily sufficient)” condition of applying the proviso: at [54]. By this language (“not necessarily sufficient”), the majority appeared to recognise that, in some cases, satisfaction of the accused’s guilt can be a sufficient condition for applying the proviso. That was the Court’s conclusion in Kalbasi at [13].

24. The majority also acknowledged that, as Weiss held, a serious “failure of process” may sometimes prevent application of the proviso, even where the appeal court is satisfied of the accused’s guilt. However, the failures of process contemplated by Weiss were “errors or miscarriages of justice … [that] may amount to such a serious breach of the presuppositions of the trial”: Hofer at [72], citing Weiss at [46].

25. The High Court’s most recent consideration of the proviso was in Orreal. There, Kiefel CJ and Keane J reiterated the requirement that “an appellate court must be persuaded that evidence properly admitted at trial establishes guilt to the requisite standard before it can conclude that no substantial miscarriage of justice has actually occurred”: Orreal at [20]. Their Honours also explained that it was important to consider the “nature and effect of the error which gives rise to the miscarriage of justice”, because some errors (for example those that involve issues of contested credibility) might prevent the appellate court from effectively assessing the evidence. At [41], Gordon, Steward and Gleeson JJ stated the law in similar terms, and encouraged appellate courts to heed the “natural limitations” on their ability to assess aspects of the evidence at trial, for example the credibility of witnesses, citing Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.

Application of the proviso in this case

26. There is no single universally applicable description of what constitutes a substantial miscarriage of justice. I am satisfied, beyond reasonable doubt on the whole of the record, that the applicant was proved guilty of the murder of Lynette Dawson. I have paid close regard to the nature and effect of the errors established here in grounds 2 and 3, namely the primary judge’s failure to distinguish clearly between the five lies relied upon by the Crown as providing evidence of consciousness of guilt (Edwards lies) and the other lies proven in the evidence. Like Adamson JA, I have considered the whole of the evidence on the basis that no Edwards lies were proven or relied on by the Crown. This is not a case where the errors made prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. I am satisfied on all the evidence that the applicant is guilty beyond reasonable doubt.

27. It is not in contest that Lynette Dawson is dead. The question is whether the Crown proved beyond reasonable doubt that the applicant murdered her on the evening of 8 January 1982 or the morning of 9 January 1982. The applicant was the last person to see the deceased alive and had a strong motive and opportunity to kill her. Shortly put, I am persuaded beyond reasonable doubt of the applicant’s guilt by what the Crown called the “eleven pillars” of its circumstantial case.

28. I will not attempt to summarise all of the circumstances that I regard as important and agree with Adamson JA’s detailed summary of the evidence. The Crown’s circumstantial case was compelling. In reaching the conclusion that the applicant is guilty of murder I find that:

1. On all of the evidence, there is no possibility that Lynette Dawson voluntarily left her children on the morning of January 9 without speaking to members of her family, particularly her mother. Lynette Dawson would not have ceased her relationship or communication with her parents and siblings voluntarily. She would not have left her children, even for a few days, without telling her mother.

2. Lynette Dawson’s possessions, including her engagement ring, contact lenses and clothes, remained at the marital home after the events of 8/9 January 1982.

3. The evidence about the nature of the applicant’s relationship with JC showed a degree of desperation and obsession on the part of the applicant. The applicant was controlling of JC, who was a teenager. The applicant was prepared to take increasing risks to preserve his relationship with JC in the face of her increasing resistance.

4. Prior to 9 January 1982, the applicant was conducting his relationship with JC demonstrating an intention that it become a public, permanent, long-term partnership, including proposals of marriage, references to their future together and attending her school formal as her date. As Adamson JA explains at [227]-[252], the failure of the applicant’s Queensland trip with JC, the intervention of Lynette Dawson causing JC to leave the marital home and JC’s holiday at South West Rocks with family and peers her own age posed a real risk to the applicant’s continuing relationship with JC.

5. The evidence concerning 8 and 9 January 1982 (while JC was away at South West Rocks) which included a marriage counselling session between the applicant and the deceased on 8 January 1982.

6. On about 10 January 1982, in the last of JC’s calls to the applicant from South West Rocks, the applicant told JC that, “Lyn’s gone. She’s not coming back. Come back to Sydney [from South West Rocks] and help me look after the children and be with me”, see Adamson JA at [274].

7. The applicant drove all night on 10 January and collected JC from South West Rocks shortly after dawn on 11 January 1982. The applicant installed JC in the marital bed from the very first night of their return. As set out by Adamson JA at [286], the applicant told JC that she could take what she wanted from Lynette Dawson’s jewellery and clothes.

8. As explained by Adamson JA at [294], the applicant told the portrait artist retained to draw the Dawson children that Lynette Dawson no longer wanted the artworks.

9. Ms Dawson never contacted any of her friends or family after her telephone conversation with her mother on the night of 8 January where Ms Dawson was tipsy, a drink having been prepared for her by the applicant, and she told her mother that she and the applicant “were going for a 5 day laze on the beaches, seeing the children were going away”, see Adamson JA at [260]-[261].

10. Lynette Dawson did not turn up for work on 11 January and did not contact her employers at Warriewood Children’s Centre, where she had many friends. She never collected her pay from the Centre.

11. The evidence and the timing of the arrangements which the applicant made to leave his wife and to take up permanently with JC being:

1. moving JC into his house initially (in October 1981), then to his brother’s, a few doors down (when his wife objected);

2. a planned lease of a flat at North Manly where he could live with JC;

3. preparations for sale of the matrimonial home (by signing a sale agreement on 21 December 1981); and

4. the failed trip to Queensland with JC to start a new life with her two days before Christmas 1981.

12. The abundant evidence that immediately after 9 January 1982 the applicant conducted himself in a manner which was completely irreconcilable with any purported belief that the deceased might return to the marital home.

29. Based on all of the evidence I reject the applicant’s account of him receiving a telephone call from Lynette Dawson on 9 January at the Northbridge Baths or receiving further telephone calls from her in the days immediately afterwards. I agree with what Adamson JA has said about the evidence of Bankcard receipts and other alleged sightings of Lynette Dawson. There is no reasonable hypothesis consistent with the applicant’s innocence.

Orders

30. I agree with the orders proposed by Adamson JA.

31. ADAMSON JA: On 3 April 2020, Christopher Dawson (the applicant) was arraigned in the Supreme Court on an indictment that charged one count of murder contrary to s 18 of the Crimes Act 1900 (NSW) for the murder of his wife, Lynette Dawson.

32. Following his unsuccessful application for a permanent stay, the applicant applied for a trial by judge alone pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW), which was granted on 2 May 2022: R v Dawson [2022] NSWSC 552.

33. The applicant’s trial before Harrison J (the trial judge) commenced on 9 May 2022. On 30 August 2022, the trial judge found the applicant guilty of murder and he was taken into custody: R v Dawson [2022] NSWSC 1131 (the verdict judgment). Except where otherwise indicated, all paragraph references are to the verdict judgment. In these reasons, Ms Dawson will be referred to as the deceased as the applicant accepts that it was open to the trial judge to be satisfied beyond reasonable doubt that she was dead by the time of the trial.

34. On 2 December 2022, the trial judge imposed a sentence of imprisonment for the conviction for murder of 24 years commencing on 30 August 2022 and expiring on 29 August 2046 with a non-parole period of 18 years expiring on 29 August 2040: R v Dawson [2023] NSWSC 1632. The applicant does not seek leave to appeal against his sentence.

35. The applicant seeks leave to appeal against his conviction. Leave is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on each of the grounds as none involves a question of law alone.

36. The proposed grounds of appeal are:

1.   His Honour erred in failing to find that the applicant suffered a significant forensic disadvantage for the purposes of s 165B of the Evidence Act [1995 (NSW)], and to take that disadvantage into account when considering the evidence.

2.   His Honour erred in acting upon alleged lies to support an inference of consciousness of guilt that were not relied upon this way by the Crown.

3.   His Honour’s reasons as to why the alleged lies he acted upon supported a consciousness of guilt were inadequate.

4.   The verdict is unreasonable and unable to be supported by the evidence; either because

(i)   The evidence relied upon to disprove that the deceased was alive on the afternoon of 9 January 1982 and afterwards, which the Crown accepted was an indispensable intermediate fact, was inadequate to support such proof; and/or

(ii)   On the whole of the evidence it was not open to his Honour to be satisfied beyond reasonable doubt of the applicant’s guilt.

37. Leave was granted at the hearing of the appeal to add the following further ground:

5.   A miscarriage of justice was caused by his Honour:

(i)   finding beyond reasonable doubt that the applicant did not receive a telephone call from the deceased at the Northbridge Baths on 9 January 1982; and/or

(ii)   finding as an indispensable intermediate fact that the deceased was dead by the afternoon of 9 January 1982.

Relevant statutory provisions

38. Section 165B of the Evidence Act 1995 (NSW) (which is relevant to ground 1) provides:

“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.”

39. Section 133 of the Criminal Procedure Act provides:

“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.”

40. Section 6(1) of the Criminal Appeal Act provides:

“6   Determination of appeals in ordinary cases

(1)   The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

(Emphasis added to indicate the words which will be referred to in these reasons as “the proviso”.)

41. The Crown relies on the proviso in respect of grounds 1, 2 and 3: that is, it contends that if the Court is satisfied that any of those grounds are made out, it nevertheless ought dismiss the appeal on the basis that it considers that there has been no substantial miscarriage of justice.

Conclusion

42. For the reasons which follow, I am satisfied that only grounds 2 and 3 have been made out. As I also consider that there has been no substantial miscarriage of justice, I would apply the proviso and dismiss the appeal.

The Crown case

43. The Crown case can be briefly summarised at the outset, although more detail is necessary later in these reasons having regard to ground 4(ii), which will require a consideration of all of the evidence, save that which was not accepted by the trial judge.

44. The Crown case, which was wholly circumstantial, was that the applicant intended to kill, and, late on 8 January 1982 or before noon on 9 January 1982, in fact killed, the deceased, who was a devoted wife to the applicant and a devoted mother to their two daughters who were then aged four (XD) and two (YD). It was the Crown case that the applicant was motivated to kill the deceased because of his desire to pursue his relationship with JC, a much younger female who was then 17 years old, and install her in his household in place of the deceased.

45. The Crown case that the applicant had killed the deceased (and that the alternative hypothesis consistent with innocence that she had voluntarily left her home had been excluded beyond reasonable doubt) was based on the following eleven “pillars” which were identified by the Crown in this Court as follows (taken almost verbatim from the transcript):

1.    The evidence suggesting that after 8 January 1982 the deceased never spoke to anyone or was seen by any person, apart from the applicant, whose account should be set aside as not credible.

2.    The weight of evidence suggesting that it was inherently unlikely that the deceased, in particular, having regard to her personal characteristics, would have voluntarily abandoned the husband that she idolised and the children she adored, particularly having regard to the compelling body of evidence of her devotion to her daughters.

3.    The evidence suggesting that the deceased would not have ceased her relationship or communication with her parents and siblings voluntarily.

4.    The evidence suggesting that even prior to 9 January 1982, the applicant was conducting his relationship with JC in a manner which suggested his intention that it become a public, permanent, long-term partnership, including proposals of marriage, references to their future together and attending her school formal as her date.

5.    The evidence about the deceased’s unwavering commitment to her marriage even in the face of its deterioration toward the end of 1981 due to the applicant’s conduct; her stoicism despite the less than ideal circumstances; her devotion to “her Chrissy”, as she referred to the applicant; and her attempt to restore the marriage through counselling despite his having been unfaithful and temporarily leaving the home.

6.    The evidence about the nature and atmosphere of the applicant’s relationship with JC, which was marked by a degree of desperation and obsession on the part of the applicant, who was controlling and exerted significant pressure on JC and others and was prepared to take increasing risks to preserve his connection and sexual intimacy with JC in the face of her resistance.

7.    The evidence and the timing of the arrangements which the applicant made to free himself from his wife, to leave her and to take up permanently with JC which included moving her into his house initially (in October 1981), then to his brother’s, a few doors down (when the deceased objected). He also planned to lease a flat at North Manly where he could live with JC, made preparations to sell the matrimonial home (by signing a sale agreement on 21 December 1981) and set off for Queensland with JC to start a new life with her two days before Christmas 1981.

8.    The failure of the trip to Queensland due to JC’s immediate homesickness and the physical manifestations thereof; JC’s desire to leave the relationship on their return; and her departure for South West Rocks to spend time with her father, two of her sisters and her friends meant that the applicant was at great risk of losing JC and his hold on her.

9.    The evidence concerning 8 and 9 January 1982 (while JC was away at South West Rocks) which included a marriage counselling session between the applicant and the deceased on 8 January 1982; the fact that the applicant was the last person to see the deceased alive and had both the opportunity and motive to kill her; and the evidence of what happened at the Northbridge Baths on 9 January 1982.

10.    The evidence that immediately after 9 January 1982 the applicant conducted himself in a manner which was completely irreconcilable with any purported belief that the deceased might be alive or return home. He collected JC from South West Rocks on 11 January 1982, and on their return to Sydney he immediately began cohabiting with JC and shared the matrimonial bed with her. The deceased’s clothing and jewellery (including her engagement rings) as well as her contact lenses were in the bedroom.

11.    The proof of life investigations conducted at various stages and searches under the missing persons investigation, the searches under the Mayger investigation, the Loone investigation and the Poole investigation as they unfolded.

The applicant’s case

46. The applicant’s case at trial was that the deceased was alive at about 3pm on 9 January 1982, having left the home in Bayview where she lived with the applicant and their two children (the Bayview house) because of her distress about the state of her marriage and her need to have time to herself. The applicant contended at trial and in this Court that the Crown had not excluded this hypothesis consistent with innocence beyond reasonable doubt.

47. On appeal, the applicant submitted that the verdict was unreasonable (and he was, accordingly, entitled to an acquittal) as the Crown had not excluded the reasonable hypothesis that the deceased was still alive after noon on 9 January 1982. Ms Rigg SC, who appeared with Ms Wasley for the applicant in this Court, accepted that the trial judge had rejected the evidence of several of the sightings of the deceased on which the applicant had relied at trial, but relied on the following in support of the hypothesis consistent with the applicant’s innocence:

1. the alleged sighting of the deceased by Sue Butlin in April 1982; and

2. the applicant’s statements that:

1. the deceased had called him at the Northbridge Baths on 9 January 1982 (the Northbridge Baths phone call) and had also called him on 10 and 15 January 1982; and

2. the deceased had engaged in bankcard transactions on Tuesday 12 January 1982 (at Katies, Warriewood Square) and 26 (or 27) January 1982 (at Just Jeans, Warriewood Square).

The trial

48. The evidence adduced at the trial, in so far as it is relevant to the appeal, will be summarised in the consideration of ground 4(ii).

The Crown’s opening submissions

49. The Crown’s opening submissions reflected the eleven matters referred to above and made no reference to any alleged lies on the part of the applicant. Accordingly, no reference was made to the possibility that any lie on the part of the applicant amounted to a consciousness of guilt.

The Crown’s closing submissions

50. The Crown referred to the evidence which established the eleven pillars with which it had opened its case.

51. In closing address, the Crown also submitted that the applicant had lied on several occasions, as evidenced by alleged inconsistencies and significant omissions in his versions. The Crown relied on these alleged lies to impugn the applicant’s credibility and to establish that his versions, in so far as they were consistent with innocence, could not possibly be true.

52. In particular, in order to prove beyond reasonable doubt that the deceased had died on or about 8 January 1982, the Crown was required to establish that it was not reasonably possible that the applicant’s account that the deceased phoned him at the Northbridge Baths on 9 January 1982 and on subsequent occasions was true. This hypothesis consistent with innocence will be considered in the context of grounds 4 and 5.

53. After closing submissions, the Crown raised the question whether the trial judge ought give himself a direction under s 165B(2) of the Evidence Act but did not accept that the applicant had necessarily established that he had suffered significant forensic disadvantage.

The defence opening submissions

54. The applicant’s trial counsel, Ms David, opened, in part, as follows:

“Your Honour, it is important in the defence case that the relationship [with JC] became known to Lynette Dawson and that, for other reasons, this caused her to disappear. It is not in issue that the accused and JC formed a relationship, it resulted in their marriage, and that they separated as indicated in 1990.

In addition to the evidence referred to above, there have been a number of important sightings. I won't raise them all, but there are a number and they date from a period around April to July 1982 where Mrs Dawson was seen around near the Gladesville Hospital. There was a further sighting on 28 March 1983 by a person who knew her well. There were further sightings in June and July 1984 by a previous neighbour. Again, none of these people aligned to Mr Dawson or at his instigation. There were other sightings, your Honour, that appear, possible sightings, some of which were not followed up.

It is those factors and other factors that the defence say indicate that it is possible that Lynette Dawson was alive after 8 and 9 January 1982.”

(Emphasis added.)

The defence closing submissions

55. In closing submissions, Ms David submitted that the trial judge should give himself a forensic disadvantage direction under s 165B of the Evidence Act. She referred to delay in a discursive fashion throughout her closing address which began on 5 July 2022, continued until 8 July and concluded on 11 July 2022. Her complaint about delay was largely associated with criticisms of the police investigation.

56. On 5 July 2022, Ms David identified as matters warranting a s 165B direction the applicant’s version that he had received a phone call from the deceased while he was at the Northbridge Baths on the afternoon of 9 January 1982 and that he had seen the deceased’s bankcard statements which recorded transactions on 12 and 26 or 27 January 1982 at shops at Warriewood Square. Ms David also referred to the phone calls from JC to the Bayview house (while she was away at South West Rocks). Ms David submitted that the applicant had been forensically disadvantaged by the delay which meant that the records of these alleged phone calls and bankcard transactions were no longer available.

57. When asked by the trial judge to address the circumstance that the deceased did not call anyone other than the applicant on or after 9 January 1982 (and the only evidence that she had called him came from the applicant’s statements), Ms David responded:

“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.”

58. Defence counsel also submitted that the deceased may simply, on the evening of 8 January 1982, have concluded that the marriage was not going to work because she had been so badly treated by the applicant.

59. In a document entitled “Proposed Directions” dated 11 July 2022 (and handed to the trial judge on that day) (Proposed Directions) the applicant submitted that he suffered a forensic disadvantage on the basis of the following:

1. difficulties obtaining evidence about the Queensland trip (which was relevant to the evidence of Robert Silkman regarding the hiring of a hitman, which is no longer relevant as the trial judge did not accept the evidence as to this matter);

2. the fact that JC first made allegations that the applicant had tried to hire a hitman in 1990, which deprived the applicant of the opportunity to identify the subject premises in western Sydney where JC said that he had taken her after school for that purpose or to challenge JC’s account by reference to inconsistencies;

3. the applicant’s inability to obtain records from the marriage counsellor whom he and the deceased had seen who:

1. could have corroborated the evidence of Sue Strath that the deceased had been happy following the counselling session; and

2. may have assisted in illuminating the cause of bruising observed on the deceased’s neck;

4. the bankcard statements which were said to record transactions on 12 January 1982 and 26 (or 27) January 1982 at Katies and Just Jeans (but for the delay, the applicant submitted that “more positive evidence of the transactions may have been obtained”);

5. the applicant’s inability to obtain records to confirm that he worked at and attended Northbridge Baths on 9 January 1982 with Helena Simms, Phillip Day, XD and YD, and the absence from the police investigation of interviews with the staff members who worked there on that day;

6. the applicant’s inability to obtain telephone records to corroborate his alleged receipt of a Subscriber Trunk Dialling (STD) call from the deceased at the Northbridge Baths on 9 January 1982 or the timing and receipt of calls from JC (while she was at South West Rocks) to the phone at the Bayview house; and

7. failures in the police investigation and the loss of the file of the investigation conducted by Detective Sergeant Paul Mayger and Detective Sergeant Geoffrey Wright in 1990 (the Mayger/Wright investigation) which the applicant contended “would have” contained critical documentary evidence and witness statements.

60. The direction sought by the applicant was in the following terms ([25] of the Proposed Directions):

“It is submitted Your Honour would need to give to yourself a forensic disadvantage direction which would include the following:

-   Because of the passage of time, the evidence of many Crown witnesses cannot be adequately tested

-   That Your Honour would need to scrutinise the evidence with great care;

-   That such scrutiny should take into account circumstances which have a logical bearing on the truth and accuracy of the Prosecution’s evidence; and

-   That at every stage of carrying out the scrutiny of the Prosecution evidence, Your Honour should take serious account of the warning as to the dangers of conviction.”

The alleged lies relied on by the Crown as implied admissions on the basis that the applicant evinced a consciousness of guilt

61. After closing submissions had been made by each party, the trial judge asked counsel whether there were any further matters which they wanted to raise before he reserved his decision and adjourned the court. The Crown raised the issue of a direction concerning lies as a consciousness of guilt and proceeded to identify the following five matters which it submitted were lies (either positive statements or omissions) which evinced a consciousness of guilt on behalf of the applicant:

1. the absence of any reference in the applicant’s report dated 18 February 1982 to the Missing Persons Unit (Exhibit BU) under the subheading “circumstances of disappearance”, to the damage to his marriage caused by the applicant’s relationship with JC;

2. the applicant’s statement in his Antecedent Report dated 17 August 1982 to the Missing Persons Unit (the Antecedent Report), that he had travelled north “to be by myself” and the absence of any reference to JC;

3. the statement in the Antecedent Report that “all girlfriends [of the deceased] have been contacted” in circumstances where the only “girlfriend” who had been contacted was Robyn Warren (reference was also made to answers 71–79 of Exhibit AA, the applicant’s Electronically Recorded Interview of a Suspected Person on 15 January 1991) (the ERISP);

4. the applicant’s answers 10-12 in the ERISP that in 1985 at a Sydney Boys High School reunion, he had been told by Ian Kennedy that “he had heard a whisper that [the deceased] was in New Zealand”; and

5. the applicant’s answer 19 in the ERISP that after the applicant said that he had travelled to Queensland with a girl he was having an affair with, he was asked whether he stayed at his brother’s place when he returned to Sydney and he answered, “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.”.

(These will be referred to as COG (1)-(5) although they were not referred to in the trial in that way.)

62. In respect of COG (1) and COG (2), the Crown relied on R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455 at [260]-[262] in support of the proposition that an omission may amount to a consciousness of guilt.

63. After the Crown identified these five matters, counsel for the applicant addressed the trial judge about further directions which it contended his Honour should give to himself but did not seek to be heard against the Crown’s reliance on COG (1)-(5).

64. The Crown’s reliance on these five matters is relevant to grounds 2 and 3 where it is alleged by the applicant that the trial judge went beyond those five matters when determining whether there was a consciousness of guilt and failed to provide adequate reasons why, if at all, he was satisfied that each of COG (1)-(5) was a lie which evinced a consciousness of guilt.

The verdict judgment

65. The structure of the verdict judgment was relied on to support grounds 2 and 3 (relating to consciousness of guilt) and grounds 4(i) and 5 (relating to the trial judge’s finding that it was not reasonably possible that the deceased had phoned the applicant at the Northbridge Baths on the afternoon of 9 January 1982).

66. The structure of the verdict judgment is indicated by the headings used by the trial judge, which are reproduced in the table below:

JUDGMENT	[1]-[17]
Background Comment	[2]-[10] [11]-[17]
WAS LYNETTE DAWSON ALIVE AFTER 8 JANUARY 1982?	[18]-[151]
Mr Dawson’s telephone calls with Lynette Dawson The Northbridge Baths ([23]-[41]); Later telephone calls ([42]-[63]) The bankcard references The sightings Ray Butlin and Sue Butlin ([77]-[86]); Ross Hutcheon and Lynette Hutcheon ([87]-[109]); Elva McBay ([110]-[113]); Peter Breese and Jill Breese ([114]-[129]); Mr Dawson's 22 August 2010 email ([130]-[132]); Narraweena, Beacon Hill, Terrigal ([133]-[135]); Paul Cooper ([136]-[144]) Conclusion Reliability of identification evidence	[22]-[63] [64]-[75] [76]-[144] [145]-[147] [148]-[151]
IS LYNETTE DAWSON DEAD: PROOF OF LIFE INQUIRIES	[152]-[155]
JC	[156]-[233]
Assessment	[227]-[233]
HYPOTHESIS CONSISTENT WITH INNOCENCE	[234]-[330]
Circumstantial case direction Crown case: Lynette Dawson did not abandon her home Lynette Dawson’s daughters ([265]-[283]); Friends and family ([284]); Clothing and personal effects ([285]-[289]); Lynette Dawson’s commitment to her husband ([290]-[296]); Lack of financial independence ([297]-[301]) Mr Dawson’s response: Lynette Dawson left of her own accord The marriage was over ([303]-[307]); Extreme unhappiness ([308]-[312]); Low self-esteem ([313]-[318]); Dark moods and violence ([319]-[320]) Conclusion	[241]-[245] [246]-[301] [302]-[320] [321]-[330]
HOW DID LYNETTE DAWSON DIE?	[331]-[545]
Robert Silkman Mr Dawson and JC Cromer High School ([353]-[371]); PS ([372]-[383]); RH ([384]-[391]) The relationship develops ([392]-[399]); SOW ([400]-[403]); Mr Dawson’s “plans” ([404]); (1) The North Manly flat ([405]-[407]); (2) The “hitman” allegation ([408]-[417]); (3) Sale of 2 Gilwinga Drive ([418]-[419]); (4) A new life in Queensland ([420]-[421]); South West Rocks ([422]-[432]); 2 Gilwinga Drive ([433]-[440]) Consideration Mr Dawson and Lynette Dawson Anna Grantham ([449]-[454]); Annette Leary ([455]-[469]); Julie Andrew ([470]-[480]); Patricia Jenkins ([481]-[486]); Gregory Simms ([487]-[501]);Coral Clarke ([502]-[504]); KF ([505]-[506]); BM ([507]-[515]); Judith Solomon ([516]-[522]); Roslyn McLoughlin ([523]-[524]); Robyn Warren ([525]-[531]) Tendency evidence: a brief diversion Consideration	[344]-[350] [351]-[440] [441]-[445] [446]-[531] [532]-[540] [541]-[545]
GOOD CHARACTER	[546]-[551]
INCONSISTENT REPRESENTATIONS AND ACTIONS	[552]-[564]
LIES AS CONSCIOUSNESS OF GUILT	[565]-[631]
Consciousness of guilt: direction	[568]-[626]
Mr Dawson contacted Lynette Dawson’s girlfriends	[574]-[580]
Mr Dawson travelled north by himself	[581]-[587]
Missing Person’s Report	[588]-[591]
Family Law affidavit	[592]-[593]
Lynette Dawson seen in New Zealand	[594]-[596]
Hope of her return	[597]-[600]
$500	[601]
Phone calls	[602]-[604]
Exhibit AA	[605]-[626]
Note	[627]-[630]
Conclusions	[631]
DELAY IN PROSECUTION	[632]-[645]
THE POLICE INVESTIGATION	[646]-[660]
COMMENT	[661]
TEACHER’S PET PODCAST	[662]-[687]
EXHIBIT 35	[688]-[702]
EXHIBITS G AND AY – HEARSAY EVIDENCE DIRECTION	[703]-[706]
OTHER DIRECTIONS	[707]-[717]
MOTIVE	[718]-[725]
DISCERNMENT	[726]-[757]
VERDICT	[758]-[759]

The finding that it was not reasonably possible that the applicant received the Northbridge Baths phone call and that the applicant’s version to that effect was untrue

67. The trial judge began the narrative in general terms under the heading, “Background” ([2]-[10]). Under the heading, “Comment”, his Honour addressed the consequences of the Crown case being a circumstantial one as follows:

“13   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.

14   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. …”

68. Immediately under the first bold heading, “WAS LYNETTE DAWSON ALIVE AFTER 8 JANUARY 1982”, the trial judge said at [18]:

“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.”

69. At [19], the trial judge said of the evidence in these three categories:

“… 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. …”

70. At [21], the trial judge said in part:

“… 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.”

71. The first sub-heading in this section, “Mr Dawson’s telephone calls with Lynette Dawson”, covers [22]-[63] and two sub-sub-headings, “The Northbridge Baths” ([23]-[41]) and “Later telephone calls” ([42]-[63]).

72. Under “The Northbridge Baths”, the trial judge set out, at [23], the applicant’s version in the ERISP and, at [24], an excerpt from the Antecedent Report. The evidence of Mr Day was extracted at [25] and [26]; an extract from Helena Simms’ diary was reproduced at [27]; the evidence of CB (an employee of Northbridge Baths) was summarised and extracted at [28]-[33]; the evidence of JM (another employee of Northbridge Baths) was extracted at [34]; and there was a further reference to the ERISP at [35].

73. At [36], the trial judge said:

“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.”

(Emphasis added to indicate the alleged error which is the subject of grounds 4(i) and 5, considered later in these reasons.)

The use of lies as a consciousness of guilt

74. The trial judge addressed the topic of lies as a consciousness of guilt at [565]-[631] under the heading “LIES AS CONSCIOUSNESS OF GUILT”. In prefatory remarks in [568]-[573], his Honour directed himself as to the conditions precedent for using a lie (or omission) as a consciousness of guilt in the terms of, but not referring to, Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 (Edwards) (Edwards direction). At [573], his Honour said:

“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.”

75. From [574]-[626], the trial judge identified what were said to constitute such lies. The verdict judgment refers to the following lies under the sub-headings as follows:

Para in verdict judgment	Sub-heading	Substance	Whether relied on by Crown as consciousness of guilt *
[574]-[580]	Mr Dawson contacted Lynette Dawson’s girlfriends	In the Antecedent Report the applicant said that all of the deceased’s girlfriends had been contacted.	Yes, COG (3) above.
[581]-[587]	Mr Dawson travelled north by himself	“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.”	Partly: COG (2) above but problems about spending were not relied on by the Crown as a lie.
[588]-[591]	Missing person’s report	The applicant’s omission to mention that he was in a sexual relationship with JC when he reported the deceased as missing on 18 February 1982	Yes, COG (1) above.
[594]-[596]	Lynette Dawson seen in New Zealand	The applicant told police in 1991 that Ian Kennedy had told him that he had heard a whisper that she was in New Zealand.	Yes, COG (4) above.
[597]-[600]	Hope of her return	The applicant’s expressions of grief at the deceased’s disappearance and of hope that she would return, including the wording of the advertisement.	No.
[601]	$500	The applicant told the police that his wife was in possession of $500 when last seen.	No.
[602]-[604]	Phone calls	The statements the applicant made to police that he and the deceased had been in telephone contact after she was last seen.	No.
[605]-[626]	Exhibit AA	Various lies told by the applicant in his ERISP on 15 January 1991.	No, except where identified above.
[611]	Exhibit AA	Answer to Q 19 that on his return from Queensland with JC, he did not go to his brother Paul’s place but went home.	Yes, COG (5) above.

* The fourth column is added to indicate the alleged errors which are the subject of ground 2.

76. Although the trial judge recited the Crown submissions on each matter and found that these matters were untruthful, his Honour did not, in this passage of the reasons, separately address the integers of the Edwards direction in respect of any of the lies alleged.

77. At the end of this section of the verdict judgment, the trial judge said at [631]:

“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.”

78. Under the heading, “DISCERNMENT”, the trial judge returned to the topic of the applicant’s lies and said:

“743   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.

744   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.

745   Mr Dawson’s lies fall into a number of categories.

746   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.

747   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.

748   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.

749   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.

750   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.

751   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.

752   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.”

(Emphasis added.)

The decision not to give a s 165B direction

79. The trial judge’s decision not to give himself a s 165B direction is the subject of ground 1. In the verdict judgment, the trial judge addressed the matters relied on by the applicant as warranting a s 165B direction at [633]-[644] under the heading “DELAY IN PROSECUTION”. Of particular significance, the trial judge referred to the matters raised by the applicant as giving rise to a forensic disadvantage as follows:

“633   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.

634   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.

635   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.

636   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.

637   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.

638   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.

639   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.

640   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.”

80. At [645], the trial judge concluded that he was not satisfied that a warning under s 165B of the Evidence Act was warranted. His Honour said:

“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.”

(Emphasis added.)

The requirements of a trial judge when coming to a verdict in a trial by judge alone

81. The trial judge was required to comply with s 133(2) of the Criminal Procedure Act, as set out above. This required his Honour to set out the principles of law which he applied as well as the findings of fact. In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 (Fleming), the High Court said of s 33, the predecessor to s 133, at [22] (footnote omitted):

“Such a provision is an expression of legislative concern not only for the effective exercise by the Court of Criminal Appeal of its jurisdiction conferred by ss 5 and 6 of the Criminal Appeal Act. More fundamentally, s 33 evinces a concern that, in the operation of the new regime established by Pt 9 of the Criminal Procedure Act whereby trial by jury is replaced in certain circumstances by trial by judge sitting alone, justice must not only be done but also be seen to be done.”

82. The High Court said further at [30]:

“Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.”

(Emphasis added)

83. Heydon J in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 (AK) highlighted the forensic benefit to an accused who is tried by judge alone rather than by jury. Instead of the safeguards of the jury trial, the accused gains the benefit of transparency which the requirement to give reasons affords and the consequential benefit of being able to detect error in the trial judge’s deliberations, which is not open in jury trials because of the assumption that a jury complies with the directions given by the trial judge. Heydon J said at [108] (footnotes omitted):

“The discipline of giving reasons. Section 120(2) of the Criminal Procedure Act does not serve only the purpose of enabling the accused to know why there was a conviction, or the prosecution to know why there was an acquittal. The facility it offers for close appellate scrutiny of the trial judge means that it creates an essential discipline. The process of having to state judicial reasoning in terms sufficiently clear, exact and convincing to pass muster in the eyes of an appellate court listening to the sometimes hypercritical submissions of counsel entails a need to be very precise in working that reasoning out. The discipline stems from the fact that the process of stating reasoning often reveals its fallacies: in the course of composing reasons for judgment directed to supporting a conclusion which seemed clear, judges often find that the opinion ‘won’t write’, and that a different conclusion develops. There is a legislative assumption that compliance with that discipline is not only more likely to produce justice according to law, but is a necessary precondition for that outcome. The abolition of jury trial entails removal of the safeguard to be found in the peculiar discipline of jury trial. The new safeguard, to be found in the discipline of having to give reasons, is a vital technique for ensuring accurate fact finding, correct inferential reasoning and sound application of the law to the facts.”

84. In addition to the requirements in s 133, the trial judge was required to comply with the common law obligation to give reasons, which necessitated exposure and articulation of the reasoning process to link the principles of law applied with the findings of fact and explain how the verdict was arrived at: Fleming at [28]; see also AK at [44] (Gummow and Hayne JJ). What is required in any given case will depend on the issues raised: DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [33] (Kiefel CJ, Keane and Edelman JJ). The reasons need not state the principles expressly if it is plain by implication that they have been taken into account by the trial judge: Fleming at [30].

Ground 1: alleged failure by the trial judge to give himself a warning pursuant to s 165B of the Evidence Act

85. Ms Rigg submitted that the trial judge erred in not finding that the applicant had suffered a significant forensic disadvantage because of the consequences of delay and in failing to give himself a warning pursuant to s 165B of the Evidence Act (although Ms Rigg accepted that the trial judge had given himself a general warning regarding delay).

86. Ms Rigg argued that the correctness standard applies and that this Court ought find that the trial judge ought to have been satisfied that the delay in the prosecution of the offence had caused significant forensic disadvantage. In the alternative, Ms Rigg submitted that, if the House v The King (1936) 55 CLR 499; [1936] HCA 40 test for an error in a discretionary decision applies, either, it was not reasonably open to the trial judge not to be satisfied of that matter; or the trial judge failed to apply the law correctly when exercising the discretion. Further, she took issue with the trial judge’s statement in [633] (reproduced above) that he had relied on “presumptive disadvantage”. Ms Rigg submitted that no such submission had been made on behalf of the applicant at trial.

87. The Crown submitted that the standard of review which applied (correctness or House v The King error) had not been authoritatively determined but that, on either standard, no error had been established.

The relevant principles

88. The Evidence Act was intended to make significant changes to the laws of evidence in New South Wales: McNamara v The King [2023] HCA 36; (2023) 98 ALJR 1 at [57]. The insertion of s 165B into the Evidence Act can be taken to have marked a change in the common law principles articulated in Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 (Longman) which required trial judges, where evidence of a complainant could not be adequately tested after the passage of time (in that case, more than 20 years), to direct juries that it was “dangerous to convict” on that evidence alone, unless they were satisfied of its truth and accuracy, on the basis of presumptive prejudice arising from the delay (at 91, Brennan, Dawson and Toohey JJ).

89. In Longman, the appellant was charged with two counts of indecent dealing with his step-daughter who was aged 6 (for count 1) and 10 (for count 2). The trial took place when the complainant was 32 years old. She first complained of the offending conduct in August 1987, 25 years after count 1 and 21 years after count 2. Mr Longman’s appeal against his conviction was allowed on the basis that the trial judge had not warned the jury that it was dangerous to convict the appellant because the delay meant that the complainant’s evidence could not be adequately tested.

90. The High Court (Brennan, Dawson and Toohey JJ) said, at 91:

“Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay … and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury was told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.”

(Citations and footnotes omitted.)

91. The Explanatory Memorandum to the Evidence Amendment Bill 2007 (NSW), which introduced s 165B, confirms the legislative intention to change the common law as articulated in Longman as follows:

“New section 165B regulates warnings that are given to juries in criminal proceedings concerning delay and forensic disadvantage to the accused.

Section 165B (2) provides that, 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. The mere passage of time is not to be regarded as a significant forensic disadvantage (section 165B (6)) and the judge need not take this action if there are good reasons for not doing so (section 165B (3)).

The section is intended to make it clear that (contrary to the tendency at common law following Longman v The Queen (1989) 168 CLR 79 for judges to routinely give warnings in relation to forensic disadvantage arising from delay) information about forensic disadvantage need only be given if a party applies for it, and should only be given where there is an identifiable risk of prejudice to the accused. Such prejudice should not be assumed to exist merely because of the passage of time.”

92. The Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 October 2006 at 3553) to the Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006 (NSW), which introduced a provision relating to the warnings to be given to a jury where there is a delay in making a complaint in sexual offences, said in part:

“The amendment is designed to ensure in the first instance that a Longman warning should not be given unless it is established factually that there has been a significant delay. The word ‘significant’ has been purposely used to ensure that the warning is given in cases where the delay is warranted, and conversely not given where the delay is not significant.”

93. It is apparent from the wording of s 165B that the applicant bore the onus of satisfying the trial judge that he “has suffered a significant forensic disadvantage because of the consequences of delay”. This Court has held that this requires a defendant to establish a real or actual disadvantage which is not merely speculative, theoretical or presumptive: Brown v R [2022] NSWCCA 116 (Brown) at [43] (Bell CJ, Kirk JA and Price J agreeing); Shanmugam v R [2021] NSWCCA 125 (Shanmugam) at [45]. It is not enough to show that evidence has been lost or become unavailable (because, for example, witnesses have died or forgotten relevant detail), if there is nothing to indicate whether that evidence would have been either inculpatory or exculpatory.

94. The issues concerning the ambit and operation of s 165B were considered by Doyle CJ in R v Cassebohm (2011) 109 SASR 465; [2011] SASCFC 29 by reference to an analogous provision, s 34CB(2) of the Evidence Act 1929 (SA), which provided:

“34CB—Direction relating to delay where defendant forensically disadvantaged

(1)    A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished. Note— See Longman v The Queen (1989) 168 CLR 79 (2)

(2)   If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—

(a) explain to the jury the nature of the forensic disadvantage; and

(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.

(3)    An explanation or direction under subsection (2) may not take the form of a warning and—

(a) must be specific to the circumstances of the particular case; and

(b) must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.”

95. Doyle CJ said at [30]:

“It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so.”

96. In order to determine whether lost evidence is capable of establishing significant forensic disadvantage, it is necessary to have regard to the facts in issue in the particular case. It can be expected that the meaning and application of s 165B and where the line is drawn between speculative disadvantage and real or actual disadvantage will be developed as further cases come to be decided.

97. In Groundstroem v R [2013] NSWCCA 237, Adams J (Macfarlan JA and Button J agreeing) said at [56]:

“It also appears that the duty [to give a s 165B direction] arises only on application (as here) by the appellant and thus that the particular significant forensic disadvantage must form part of that application. An accused’s lawyers will have obtained instructions as to the issues in the case and, accordingly, be aware how delay had given rise to any particular forensic disadvantage. This is a matter peculiarly within the accused’s knowledge or, perhaps more likely, that of his or her legal advisers. For example, if an important witness had died, it could very well seem that the inability to obtain his or her evidence would place the defence at a substantial disadvantage but, if the defence was aware that the witness’ evidence would, say, have assisted the prosecution or not assisted the defence, it would not be proper for counsel to rely on the death for the purpose of seeking a warning.”

98. There is also a causal requirement in that the significant forensic disadvantage must be caused by the delay. Where the alleged disadvantage has been caused by the accused’s own inaction or conduct in not preserving or disposing of evidence or making threats to a witness which cause the witness to defer making a complaint because of fears of reprisal, the alleged disadvantage will not be caused by delay but by the accused's own conduct and s 165B is not engaged: Jarrett v R (2014) 86 NSWLR 623 at [62]-[63] (Basten JA, R A Hulme and Campbell JJ agreeing); Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354 (Cabot) at [71] (Gleeson JA, Price and Wright JJ agreeing).

99. The importance of identifying the issues in the case is demonstrated by the fact that if, for example, in a case of alleged sexual assault, the issue is whether admitted sexual intercourse was consensual, DNA evidence is likely to be irrelevant. Indeed, lost or unobtained DNA evidence tends not to be capable of causing forensic disadvantage because, being lost, no assumption can be made whether, if found, it would be exculpatory or inculpatory: Binns v R [2017] NSWCCA 280 (Binns) at [22] (Basten JA, R A Hulme and Garling JJ agreeing); Shanmugam at [45] (Harrison J, Beech-Jones and Cavanagh JJ agreeing). Further, by its nature, DNA evidence generally needs to be collected within a short time of the alleged offending and its absence is, for this reason, unlikely to qualify for a s 165B direction in any event.

100. In Binns, there was a period of four and a half years between the alleged offence (sexual assault) and the first complaint. The applicant in that case argued that if the complaint had been made within days, there may have been DNA evidence to support or contradict the complaint. This Court said at [22]:

“…under the current statutory regime, DNA evidence will not usually be evidence falling within s 165B(2) because it will rarely be possible for a judge to say that he or she is ‘satisfied’ that the absence of such evidence involves a significant forensic disadvantage to the defendant; there is no basis for knowing whether the evidence would be inculpatory or exculpatory. In short, this was not the kind of disadvantage to which the section was directed.”

101. In Shanmugam, the applicant submitted that his convictions ought be quashed as the trial judge had not directed himself in accordance with s 165B. As no such direction was sought, the section was not engaged and the Court’s reasons concerning s 165B are, therefore obiter. Harrison J (Beech-Jones and Cavanagh JJ agreeing) applied Binns and said at [45]:

“In my opinion, the fundamental difficulty with Mr Shanmugam’s submission is that he does not specifically identify the existence of any significant forensic disadvantage. The hypothetical absence of Susie’s DNA on the exterior of the condom may well have been exculpatory. Conversely, the presence of her DNA on the condom would on her account of events have been inculpatory. However, the presence of Susie’s DNA on the condom would on Mr Shanmugam’s account have inculpated him falsely. Finally, in the events that occurred, the absence of the condom for biological testing may well have resulted in a significant forensic advantage for Mr Shanmugam having regard to the evidence that his Honour accepted. At his Honour’s remove from the events in question, nothing in the trial could raise these competing possibilities to any level higher than speculation.”

102. This approach was also endorsed by this Court in Brown, where the complainant’s mother had died before the trial and therefore could not give evidence of complaint. The endorsement was also obiter in that case as no application under s 165B had been made at trial and therefore the section was not engaged. Bell CJ said at [47]:

“As to the second matter, counsel for the applicant submitted that the inability to cross examine the deceased mother of one witness to whom the witness said that she had complained at the time of the events in question was a ‘significant forensic disadvantage’. It is by no means evident that this was or would have been a significant forensic disadvantage to the applicant. It was entirely a matter of speculation whether or not the mother would have been called and, if called, whether or not her evidence would have helped or hindered the applicant in his defence or whether defence counsel would have taken the forensic risk of challenging any corroborative evidence that may have been given. Speculative disadvantage does not engage s 165B of the Evidence Act [citing Schanmugam]. At most, it was a disadvantage not to have the opportunity to consider whether or not to cross examine a witness who may or may not have been called had she still been alive. The burden lay on the applicant to demonstrate that he had suffered a significant forensic disadvantage [citing Cabot]. This burden was not discharged.”

103. As Ms Rigg pointed out in her submissions, many of the decisions of this Court on s 165B have concerned cases which fall into one or more of the following three categories: where no application for a s 165B direction was made at trial; where the “lost” evidence was DNA evidence which was not obtained at the time; or where the prospect that lost evidence would have assisted an accused is no more than speculative. Ms Rigg was careful not to submit that these authorities are wrong. However, she submitted that the statements of principle in Binns, Shanmugam and Brown ought be confined to their facts, noting that Binns and Shanmugam referred to specific difficulties concerning DNA evidence and that this case does not call for determination of whether DNA evidence falls within s 165B(2) (AWS [329]). Ms Rigg submitted that a trial judge was obliged to give a s 165B direction in circumstances where there is a risk of prejudice arising from an accused’s loss of opportunity to investigate whether the evidence which is no longer available because of delay would have assisted the applicant in the defence maintained at trial.

104. In so far as Ms Riggs submitted that the principles stated in the NSW authorities referred to above were confined to the particular facts of the cases, it is necessary to have regard to the principles which govern this Court’s approach to its earlier decisions, which were summarised by Gleeson JA (Price and Wright JJ agreeing) in Cabot at [66] as follows:

“The Court of Criminal Appeal is not bound by its earlier decisions. It is well established that it should depart from such decisions with caution and only when satisfied that the law and justice of the case required such a result which requires a strong conviction that the previous decision was wrong: R v Johns (1978) 2 NSWLR 259 at 262, 264; R v Arnold (1993) 30 NSWLR 73 at 85–86 (Abadee J), at 74 (Gleeson CJ agreeing); R v Mai (1992) 26 NSWLR 371 at 380; Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at 570; [2010] NSWCCA 60 at [127]; Green v R (2011) 244 CLR 462; [2011] HCA 49 at [83]–[84].”

105. Given Ms Rigg’s decision not to contend that Binns, Shanmugam and Brown were wrongly decided, I do not consider that it is open to this Court, particularly as presently constituted by three judges, to decide that the principles enunciated in those cases requiring an accused to identify at trial the particular significant forensic disadvantage contended for are not of general application. I do not consider that the words “risk, or danger, of prejudice” ought be imported into s 165B. Had that been the legislative intention, it can be expected that these words would have been used in s 165B (similar words appear in s 137 of the Evidence Act).

The application of the principles in the present case

The matters relied on before the trial judge

106. The applicant at trial identified the seven matters (set out above) as giving rise to a significant forensic disadvantage such as to warrant a direction pursuant to s 165B.

107. Of these seven, (1), (2) (concerning the hit man) and (3)(b) (concerning the bruising on the deceased’s neck) were not pressed on appeal since the trial judge rejected this evidence in any event. I did not understand the applicant to press (3)(a) (regarding corroboration of Ms Strath’s evidence that the deceased had been happy after the marriage counselling session on 8 January 1982) since Ms Strath’s evidence was neither challenged by the applicant nor controverted by any other evidence in the Crown case and, indeed, was corroborated by observations made by Barbara Cruise, another of the deceased’s work colleagues. The last matter relied upon, (7), related to the loss of the file in the Mayger/Wright investigation but did not assert any particular prejudice beyond the loss of opportunity to know of potentially exculpatory material or contemporaneous witness evidence.

108. I consider that, for the reasons given by the trial judge at [636]-[639] (set out above), his Honour was correct to consider that the unavailability of Phillip Day, Elva McBay, Ross Hutcheon and Sue Butlin did not cause significant forensic disadvantage to the applicant.

109. This leaves three matters for consideration: the bankcard statements ((4)); the lack of records as to who (including the applicant) worked at the Northbridge Baths on 9 January 1982 ((5)); and the lack of telephone records ((6)). These will be addressed in turn.

The bankcard statements

The applicant’s versions

110. The applicant gave different versions relating to alleged bankcard purchases by the deceased after her disappearance on 8 January 1982, as follows:

Source of version	Substance of version given by the applicant
Missing Person report made by applicant (18 February 1982)	“Bankcard indicated that [the deceased] was at Warriewood on the 12th.”
Antecedent report (17 August 1982)	The applicant had seen the deceased’s bankcard statements which recorded transactions on 12 January 1982 and 26 or 27 January 1982 at Katies and Just Jeans at the Warriewood Square.
April 1983, affidavit sworn by the applicant in Family Law Proceedings (AB 1696-1697)	In February 1982, the applicant received his bankcard statement which showed that the respondent had made two purchases on their joint bankcard at Warriewood Square during the latter part of January.
ERISP, 15 January 1991 (AB 669-670)	The applicant and the deceased each had a bankcard to a joint account.

The evidence at trial

111. The evidence relating to the use of bankcards by married women and the creation of bankcard statements was as follows.

112. Brigitte Green was a full-time sales assistant at the Katies store at Warriewood Square in 1981 and 1982. Items at the store could be paid for by cash, cheque or bankcard. At the end of each trading day, a staff member would put the cash, cheques and bankcard slips into a brown wallet and deliver it to the night safe at the Commonwealth Bank at the Square, for which they had a key. The following morning, Ms Green would attend the Warriewood branch of the Commonwealth Bank. The teller would give her a book in which she would sign for the wallet, which would be opened in front of her and she would then proceed to do the “normal banking” (depositing the cash and cheques and processing the bankcard slips). Friday’s transactions would be processed on Monday morning, unless Monday was a public holiday in which case they would be processed on the Tuesday morning.

113. Ms Green was asked about her experience of transactions with persons other than the card holder as follows:

“Q. In the time that you worked at the Katies at the Warriewood Square store, did you have any experiences of someone making a payment for the purchase of an item or items and it was the husband of the woman that had the card in her name or vice versa?

A. Yes, sometimes we did. We did, yes. And especially if they are returning a garment, sometimes, you know, the husband would say, you know my wife or whatever or the boyfriend and whatever, and then we would just refund the money. Because that was the only way we could refund, but it had to be the same card, it had to be the same card.”

114. Mark Moroney, an employee of the National Australia Bank, gave evidence about banking practices in the early 1980’s. He described the records produced by bankcard transactions as follows:

“A click-clack sliding machine was what merchants or retail stores had in their possession at the time when a customer wanted to do a card or a BankCard transaction. Basically it was a carbon copy document, a document we put in the click-clack machine. The retailer would slide back and forth which would impregnate the card and the customer’s details on the card, and from there the customer would be given a copy and the merchant would keep a copy himself which would eventually end up at the bank.”

115. Merchants had an agreement with banks to lodge the credit slips from the bankcard transaction with the bank. Once the merchant provided the documents to the bank, the debit transaction would appear on the cardholder’s account on that day.

Whether the applicant suffered a significant forensic disadvantage by reason of delay

116. The question whether the applicant suffered forensic disadvantage by reason of the delay which made bankcard records unavailable depends, in part, on which, if any, of his four versions set out above was correct. If, as the applicant said in his report to Missing Persons dated 18 February 1982, there was only one relevant bankcard transaction, and it was on 12 January 1982, this could have related to a transaction by the deceased on Friday 8 January 1982, as she worked that day at Warriewood Square, near the Katies store and the transaction may not have been processed until the following Tuesday, 12 January 1982.

117. If the bankcard statement which he had seen was for the deceased’s bankcard, then the transactions could have been entered into either by her or by him (having regard to the evidence of Ms Green which established that it was possible that the applicant used the deceased’s bankcard after 9 January 1982). If the bankcard statements related to their joint account, then the fact of there being transactions in January 1982 after 9 January 1982 is neutral since he may have made those purchases.

118. It is also questionable whether any alleged forensic disadvantage can properly be said to have been suffered “because of the consequences of delay” as required by s 165B. It can be inferred that the applicant was well aware of the potential significance to locating the deceased (if he believed, as was his case at trial, that she had left) of the bankcard records when he included in his Missing Persons Report of February 1982 a reference to the transaction on 12 January 1982. At that time, he had the bank records. If the transactions were on the account he held jointly with the deceased (as he represented in 1983 and 1991), he had access to those records as a joint account holder. Although the deceased’s disappearance was the subject of investigation at that stage (from 1982-1990) by the Missing Persons Unit rather than the Homicide Squad, his failure to keep records which he identified at the time as being important cannot properly be characterised as a consequence of the delay: Jarrett at [63].

119. In these circumstances, the applicant has failed to establish that he has suffered significant forensic disadvantage by reason of delay in relation to the bankcard records.

The records of Northbridge Baths including the telephone records

120. The applicant submitted that he suffered significant forensic disadvantage because the delay had resulted in the employment records of the Northbridge Baths no longer being in existence which meant that he could not prove that he was working there on 9 January 1982.

121. I reject this submission: it was not in issue that the applicant was working at the Northbridge Baths that day. The Crown case included evidence from JM, who worked there on 9 January 1982 and who noted in her diary for that day:

“January 9, Saturday, 1982, worked in shop, 8 to 5.30. Didn’t get any money because, as usual, Col left at 12 and Chris Dawson never pays.”

122. Further, the applicant’s presence at the Northbridge Baths was corroborated by Mr Day, the diary of Helena Simms and her letter to her daughter, also called Helena (but known as Pat), dated 21 January 1982 (referred to in more detail below regarding ground 4(ii)).

123. As to the alleged Northbridge Baths phone call, the fact of a phone call, or purported phone call being made to the applicant was neutral since the applicant’s case was that the deceased had called him and the Crown case was that the applicant falsely said that the deceased had called him (whether or not he had actually received a phone call) so as to make others (including the deceased’s mother and Phillip Day) believe that the deceased was still alive (with the consequence that there would be no immediate concern about, or investigation into, her disappearance). Thus, even if there was evidence to show that the applicant was called to the phone and that an STD call was made to the Northbridge Baths on the afternoon of 9 January 1982, that evidence was, in the circumstances of the case, neutral.

124. The position would have been different if the applicant’s instructions (or version to police) were that the deceased identified herself to the person who answered the phone at the Northbridge Baths as his wife and the person summoned him to the phone with the words, “it’s your wife on the phone, hurry, it’s an STD call”, in which case the loss of such evidence (because the person who answered the phone was dead, could not be located or could not remember the phone call), may be capable of establishing significant forensic disadvantage to the applicant. Similarly, if the case of a person accused of penile-vaginal sexual intercourse without consent, was that he was, at the relevant time, incapable of obtaining an erection and, by reason of delay, could not call his then general practitioner or obtain clinical notes of consultations where treatment was sought for the condition, the forensic disadvantage to him by reason of delay may be significant.

125. If, on the facts of the present case, telephone records available or in existence at the time were capable of identifying the number from which a call was made to the Northbridge Baths, the loss of these records could potentially be to the applicant’s forensic disadvantage since they would deprive him of the opportunity of corroborating his statement as to the provenance of the call (since the number could then be investigated to ascertain whether the deceased was seen there or could have used the phone). Although it may be that the phone number from which a call was made turned out to support the Crown case, it would not follow that, before that matter is known, the loss of the evidence was not capable of causing forensic disadvantage to the applicant on the basis of his version.

126. However, in the present case, it cannot be concluded that such records were ever actually created so as to be available even had they been sought on or soon after 9 January 1982. The Crown adduced evidence from Jason Betts, Security Liaison Officer in the Law Enforcement Liaison Section of Telstra Corporation Limited. He was not required for cross-examination. Mr Betts’ evidence was that although STD calls in 1982 generated a record, due to the switch type (“10C”) the calls were carried through, reverse call tracing, though technically possible, required skilled maintenance staff to undertake a manual and “very time consuming” process. He was unable to confirm what the process was for law enforcement agencies to request “reverse call tracing” (that is, to find out where a call to a particular number had come from) in 1982 and how long any relevant records were kept for (Exhibit CC).

127. Thus, any forensic disadvantage arising from the telephone records not being available cannot be regarded as the result of delay, as required by s 165B(2), but rather of the limitations of the technology and creation of records at the time. The reasonable possibility of the deceased having called the applicant at the Northbridge Baths on the afternoon of 9 January 1982 was excluded beyond reasonable doubt because of the weight of all the other evidence in the trial, not because the applicant’s version that he had received the call was not better corroborated by witnesses or documents relating to that date. The principal issue – whether it was the deceased who had made the call – could not have been corroborated even had enquiries been made relatively quickly after 9 January 1982 since only the applicant was privy to that “knowledge”.

Other telephone records

128. The applicant also submitted that he suffered significant forensic disadvantage by reason of the loss of the telephone records for the Bayview house (which would have established the receipt and timing of JC’s calls from South West Rocks). It is difficult to discern how the availability of such records would have assisted the applicant. First, JC’s uncontroverted evidence at trial was that she called the applicant every day at the Bayview house while she was away at South West Rocks because he had told her to. Secondly, it was not in issue that JC had called him from a public phone at South West Rocks. It was not suggested that JC had called the applicant at the Northbridge Baths on 9 January 1982 because his instruction to her was that she ought call him at home.

Relevance of the refusal to grant a permanent stay

129. As referred to above, the applicant applied for a permanent stay of his trial, in part, on the ground of alleged forensic disadvantage by reason of delay. His application was refused and this Court dismissed his appeal from that refusal. In the course of her reasons for judgment at first instance, Fullerton J determined that she was not satisfied that any forensic disadvantage by reason of delay could not be addressed by directions: R v Dawson [2020] NSWSC 1221 at [397]. This Court referred to the directions and warnings that could be given “in certain circumstances” to ameliorate the effect of delay: Dawson v R (2021) 108 NSWLR 96; [2021] NSWCCA 117 at [180]–[181]. Neither Fullerton J, nor this Court, ought be taken to have undertaken the process required by s 165B, which was one to be undertaken by the trial judge, having regard to the evidence tendered in the trial and the submissions made in support of an application for such a direction. Thus, to the extent to which Ms Rigg intimated that there was some estoppel arising from those decisions which bound the trial judge to give a s 165B direction, I reject the submission.

Conclusion

130. For these reasons, ground 1 has not been made out.

131. I consider that the trial judge was correct not to inform himself in accordance with s 165B(2) since the applicant had not established that he had suffered any significant forensic disadvantage because of the consequences of delay as required by that section. No error of process or result has been established. In these circumstances, it is not necessary to decide whether the correctness standard applies or whether House v The King error must be established.

132. Further, and in any event, although the trial judge did not inform himself expressly under s 165B, his Honour gave himself a substantially similar warning in [645] (extracted above) and “remind[ed] [himself] that in deciding this case [he] 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.” The present case bears some similarities to Brown (where the trial judge had made similar observations in the verdict judgment in the context of a long delay). This Court held in Brown at [46]:

“…[I]t is abundantly clear from the [relevant] passages … that her Honour did not need to warn herself in terms of the obvious fact that memories fade over time, and that any assessment of reliability of evidence based upon memory must necessarily bear that fact in mind. … that the fact that there were certain matters that witnesses could not remember after 40 years was readily apparent to the tribunal of fact and did not call for a special direction.”

133. As no error has been established, it is not necessary to determine whether “there was a miscarriage of justice” for the purposes of s 6(1) of the Criminal Appeal Act. However, in my view, the applicant got, in substance, what he had asked for from the trial judge, albeit that his Honour found that the legislative pre-conditions for giving such a direction under s 165B had not been met.

Grounds 2 and 3: alleged errors with respect to use of lies as consciousness of guilt

134. There is an important distinction between lies which may be used, under certain strict conditions as implied admissions because they evince a consciousness of guilt on the part of an accused (Edwards lies) and other lies, which are relevant to the credibility of versions given by the accused to others, including the police, and, if the accused gives evidence, to that evidence (Zoneff lies). The shorthand expressions for these lies is taken from the authorities which articulate the difference: Edwards and Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 (Zoneff). If an accused’s statement constitutes an hypothesis consistent with innocence, the tribunal of fact must, before convicting an accused, be satisfied beyond reasonable doubt that it is not reasonably possible that the statement is true. If it is not reasonably possible that it is true, the lie must be put aside: De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ). If it is reasonably possible that such a statement is true, the accused will be entitled to be acquitted. The assessment of reasonable possibility in this context requires consideration of the whole of the evidence.

135. Only Edwards lies can be weighed by the tribunal of fact, with other evidence in the Crown case, to determine whether the Crown has proved its case beyond reasonable doubt. On appeal, only Edwards lies can be taken into account, with other evidence in the Crown case, to determine whether a verdict is unreasonable: Edwards at 210.

136. Where the trial is by jury and the prosecutor relies on lies or conduct of an accused as Edwards lies, the trial judge is required to give an Edwards direction, as follows (Edwards at 210-211):

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of ‘a realisation of guilt and a fear of the truth’.

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.”

(Footnotes omitted.)

137. Thus, the tribunal of fact can only use a lie as an implied admission (on the basis of consciousness of guilt) if the prosecutor relies on the lie for that purpose and each of the following is satisfied:

1. the alleged statement was a deliberate lie: that is, it was false to the knowledge of the accused at the time it was made;

2. the only explanation for the lie is that the accused knew that the truth of the matter about which he lied would implicate him in the offence; and

3. the tribunal of fact, if a jury, is directed (or self-directs, in the case of a trial by judge alone) that there may be reasons for the telling of a lie apart from the consciousness of guilt

(the Edwards conditions).

138. Where the prosecutor does not rely on post-offence lies or conduct as Edwards lies, a direction that the jury is not to use the lies or conduct as evincing a consciousness of guilt will be required if there is a risk that the jury might otherwise use the evidence in that way: Zoneff at [16]-[17] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). The use of consciousness of guilt reasoning without a direction in accordance with Edwards or Zoneff has the potential to jeopardise the fairness of a trial.

139. In an appeal against conviction following a trial by jury where it is alleged that the jury was not properly directed, this Court scrutinises the directions given by the trial judge in light of the submissions made by counsel as it is assumed that the jury complied with the trial judge’s directions: Demirok v The Queen (1977) 137 CLR 20 at 22; [1977] HCA 21 (Barwick CJ). However, in a trial by judge alone, it is the reasons of the trial judge that must be scrutinised to ascertain whether the demarcation between Edwards lies and Zoneff lies has been rigorously maintained.

140. In support of ground 2, Ms Rigg submitted that the trial judge used statements and omissions by the applicant as Edwards lies which were not relied on as such by the Crown. As to ground 3, she alleged that the trial judge’s reasons revealed error (because they revealed a failure to distinguish between Edwards lies and Zoneff lies) and did not explain, in respect of each of COG (1)-(5) whether, and if so, why, the Edwards conditions had been satisfied.

141. The Crown accepted that the language in the trial judge’s reasons was “problematic” in that his Honour referred to “consciousness of guilt” in relation to alleged lies beyond COG (1)-(5). The Crown submitted that, although “the language doesn’t reflect it … the argument is that what [the trial judge] is doing in terms of the reasoning is explaining why these aspects [the applicant’s alleged lies] are rejected”. The Crown also submitted that a fair reading of the verdict judgment as a whole makes clear that the trial judge did not use the lies as Edwards lies and did not reason to verdict on that basis.

142. In the alternative, the Crown submitted that the trial judge, by setting out the correct principles relating to the use of lies as amounting to a consciousness of guilt, cannot be said to have made a “wrong decision of law”. The Crown submitted that it was, at most, a “defect of application”: namely, stating the correct principle but applying it incorrectly and that the Court would not be satisfied that there was any consequential miscarriage of justice. Finally, the Crown relied on the proviso in s 6(1) of the Criminal Appeal Act, to submit that the appeal ought be dismissed because there was no substantial miscarriage of justice.

143. For the reasons given below, I am satisfied that grounds 2 and 3 have been made out. The application of the proviso will be considered at the end of these reasons.

144. By identifying its reliance on each of COG (1)-(5) as Edwards lies, the Crown complied with its obligation to make clear what use it sought to be made of particular statements and omissions by the applicant: R v GJH [2001] NSWCCA 128; (2001) 122 A Crim R 361 at [62]; Zoneff at [23]-[24]. Because the Crown identified COG (1)-(5) after final addresses, its identification of COG (1)-(5) can be taken as having superseded any earlier submission made by the Crown and circumscribed the matters which the tribunal of fact was entitled to assess as Edwards lies.

145. Under the heading “LIES AS CONSCIOUSNESS OF GUILT” in the verdict judgment, the trial judge did not distinguish between COG (1)-(5) and the other lies. His Honour made a compendious finding with respect to them under the heading “DISCERNMENT”. In addition, his Honour used the term “consciousness of guilt” in respect of matters which had not been relied on as such, of which the following serve as examples:

“Hope of her return

…

600   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.”

(Emphasis added; the advertisement was not included in COG (1)-(5) and therefore was not relied on by the Crown as evincing a consciousness of guilt.)

“$500

601   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.”

(Emphasis added; this statement was not included in COG (1)-(5) and therefore his Honour was precluded from using it as an implied admission.)

146. The trial judge, as the tribunal of fact, was entitled (and obliged) to consider the whole of the evidence and was not confined, when assessing the credibility of the applicant’s versions, to specific matters relied on by the Crown in closing address. However, his Honour was not permitted to use evidence as a consciousness of guilt which had not been specifically identified as such by the Crown and could only use such evidence in that way if the Edwards conditions were met. Paragraphs [745]-[752] reproduced above also indicate that the trial judge failed to distinguish between COG (1)-(5) and other alleged lies in coming to the conclusion at [752]. This was erroneous since the only matters which the trial judge was permitted to consider as Edwards lies were COG (1)-(5).

147. The trial judge can be taken to have appreciated the constraints on using lies as evidence of a consciousness of guilt as his Honour set out correctly the principles which apply to the use of lies as a consciousness of guilt. However, by failing to distinguish in his reasons between COG (1)-(5), on the one hand, and lies relied on by the Crown for other purposes (to impugn the credibility of the applicant’s version or to establish that it was not reasonably possible that a particular version was true), it would appear that his Honour fell into error, either by not making the distinction or by not articulating the distinction and making relevant findings and, therefore, not complying with s 133(2) of the Criminal Procedure Act.

148. I reject the Crown’s submission that this Court should, in effect, disregard the language used by the trial judge in the verdict judgment. The trial judge, having set out the Edwards conditions and referred to consciousness of guilt, can be taken to have used these words as connoting Edwards lies. Any other reading does not pay significant regard to the meaning and import of those words and their significance in the criminal law because of their potential to permit an accused’s response, by words or conduct, to augment the Crown case and be weighed in the balance in the Crown’s favour in the deliberations of the tribunal of fact.

149. The trial judge’s reasons revealed error. They were also inadequate in that they did not separately address COG (1)-(5) and whether the Edwards conditions were satisfied in respect of each, and if so, why. The trial judge’s reasons therefore did not comply with s 133(2) of the Criminal Procedure Act or the common law obligation to give reasons.

150. For these reasons, grounds 2 and 3 have been made out.

151. The operation of the proviso will be addressed at the conclusion of these reasons.

Ground 4(ii): alleged unreasonable verdict

152. It is convenient to address ground 4(ii) before turning to grounds 4(i) and 5 because ground 4(ii) requires the evidence to be surveyed at length.

The applicable principles

153. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) at [12], the High Court held that the approach to be adopted by this Court when considering the reasonableness of a conviction flowing from a judge alone trial is the same as that confirmed in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 as being the correct approach following a jury trial.

154. This Court is required to view the trial judge’s reasons for verdict with circumspection, so as not to be diverted by his Honour’s findings from its task of independently assessing the evidence with a view to determining whether it was open to the tribunal of fact (in this case, the trial judge) to be satisfied of the applicant’s guilt beyond reasonable doubt: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie) at [16]. However, the applicant accepted that this Court could regard those of the trial judge’s findings which were not disputed as an accurate reflection of the evidence and that this approach was not inconsistent with the independent review required to be taken: Dansie at [16]; Filippou at [83].

155. Further, there were several matters which the applicant put in issue at trial, which were no longer contested on appeal. These matters included the evidence of JC which was accepted for the purposes of the appeal, with limited exceptions (referred to below).

156. The Crown informed this Court that, for the purposes of ground 4(ii), it no longer relied on any of COG (1)-(5) as amounting to a consciousness of guilt. Accordingly, it is not necessary for the Court to undertake for itself, the task of determining in respect of each of COG (1)-(5), whether the alleged lie met the Edwards conditions.

The competing hypotheses

157. Ms Rigg expressly eschewed any hypothesis that, although the deceased was alive at 3pm on 9 January 1982 (according to the applicant), she was killed by the applicant at some later time.

158. In these circumstances, I consider that there were only two competing non-fanciful hypotheses which explained the deceased’s disappearance on and from 9 January 1982 as follows:

1. the applicant murdered the deceased prior to noon on 9 January 1982 when he arrived at the Northbridge Baths (for which the Crown contended); or

2. the deceased voluntarily left the Bayview house, the applicant, her children, her family, her friends and her employment and did not have any contact with them again (which the applicant contended could not be excluded beyond reasonable doubt).

159. In particular, the hypothesis that the deceased might have committed suicide can be excluded since, had she done so, it would have been inevitable that her body would have been found and that there would be some indication of the act (leaving aside the evidence that showed that she was resolute about caring for her children, was very close to her mother and siblings and well-supported by her friends, had no history of mental illness and had already weathered the storm created by the applicant leaving her and the children on 23 December 1981).

160. At its highest, Ms Rigg intimated that the Crown could not exclude the hypothesis that the deceased was still alive on 9 January 1982 because she wanted to have a break from the situation to think about things, was happy to leave her children with the applicant because he was a capable father and well able to look after them by himself and knew that her mother would provide back-up childcare support if required. This hypothesis may have appeared reasonable as at 9 January 1982, for example, when the deceased’s mother first learned that the deceased was not coming to the Northbridge Baths but it needs to be assessed having regard to the evidence as a whole.

Evidence which does not need to be considered

161. The trial judge rejected the evidence of some witnesses, including because they had been influenced by Hedley Thomas, whose actions in interviewing them for his podcast contaminated their evidence, rendering it unreliable. The applicant accepted, and the Crown agreed, that the following evidence does not need to be addressed for the purposes of addressing the grounds of appeal:

1. evidence of the following witnesses (listed in alphabetical order) Deborah Brassey, Jill Breese, Peter Breese, Sandra Casey, Colin Casey, Carol Clark, Susan Cooper, Anna Grantham, Lynette Hutcheon, Ross Hutcheon, Raymond Lee, BM, Linda McCarthy, Robert Silkman, Judith Solomon, Kerry Stantscheff and SOW;

2. evidence of the following witnesses relating to particular topics:

1. the evidence of JC that related to attending a location where the applicant was considering hiring a hitman;

2. the evidence of Elva McBay that related to the alleged sighting of the deceased at the Royal visit in 1983; and

3. the evidence of Annette Leary, Susan Strath, KF and Rosyln McLoughlin regarding bruising to the deceased; and

3. most of the exhibits tendered by the applicant at trial (including material relating to Mr Thomas’ podcast) except Exhibit 35 (a transcript of phone intercept material), which Ms Rigg accepted was accurately summarised by the trial judge at [688]-[702].

162. In addition to this evidence, I do not consider that the evidence of Paul Cooper (that he saw the deceased in 1982) ought be taken into account as it was rejected by the trial judge as “completely unreliable” ([136]-[144]).

163. Further, as referred to above, the Crown indicated that it no longer relied on any of COG (1)-(5) as establishing a consciousness of guilt. Accordingly, none of these matters can be relied on as implied admissions to bolster the Crown case. Each is relevant only to the credibility of the applicant’s versions. Where the applicant has given a version which, if true, would amount to a hypothesis consistent with innocence, the Crown must persuade the tribunal of fact beyond reasonable doubt that it is not reasonably possible that the version is true.

The facts

164. As noted above, the applicant accepts many of the trial judge’s findings for the purposes of this appeal, including for the purposes of determining the unreasonable verdict ground. In some instances where the applicant accepts certain findings for the purposes of the appeal, I will refer to the verdict judgment instead of the evidence. The narrative set out below is not a summary of the transcript, much less a complete summary, but rather a narrative drawn from the significant evidence in the trial, other than that which was rejected by the trial judge.

The deceased and her family

165. The deceased was the third of four children. Her parents Helena and Len Simms lived in Clovelly. The deceased had “very poor” eyesight and had to wear contact lenses and glasses, which she required for reading as well as to recognise people at a short distance. The deceased trained as a nursing sister at the Children’s Hospital in Sydney and was very efficient and skilled in caring for children.

166. Her older sister, Pat, lived at Stuarts Point on the Mid North Coast (between Macksville and Kempsey). Pat had no home phone and the nearest public phone was 8kms away. She would keep in touch with the family through Helena’s weekly letters and occasional trips to Sydney. Pat and her family would either stay with Helena and Len or park their campervan outside the Bayview house to spend time with the deceased and her family. When Helena died in September 2001 at the age of about 84, Pat became the custodian of her mother’s diaries and correspondence which she provided to police after July 2015.

167. The deceased’s younger brother, Charles (known as Greg), asked the applicant to be the best man at his wedding to his wife, Merilyn in November 1976. Greg was a member of the NSW Police Force. In 1981, he and his family moved from Winston Hills (a suburb of Sydney) to Muswellbrook in the Hunter Valley. Whenever his work required him to attend court in Sydney, he would take the opportunity to visit his parents and the applicant and the deceased.

The applicant and his family

168. The applicant’s parents, Sid and Joan Dawson, lived in Maroubra. The applicant had three siblings, Lynette Hutcheon, who was married to Ross; an older brother, Peter, who was a lawyer who specialised in family law and crime; and an identical twin brother, Paul, who was married to Marilyn. The mother of Lynelle, Peter’s first wife, left her children when Lynelle was nine years old. Peter’s evidence was that, for this reason, he did not regard it as “unusual” when the deceased disappeared on 8 or 9 January 1982 and did not contact her family thereafter.

169. Lynelle described the circumstances of her mother’s departure as follows:

“… as I was the older child, I remember that she took me down the back yard, she had a little chat with me, and the words were: ‘Lynelle, I don't want to go.’ And I said: ‘Mum, don't go.’ And we had a bit of a chit-chat, and off I went as a child to my friend's house to play. And that was it, she left.”

170. After Lynelle’s mother left the family home, she moved to Rockdale and lived in a boarding house where Lynelle visited her “a few times” before they lost touch. Subsequently, Lynelle learned that her mother had moved to New Zealand and married again before she died.

171. The applicant had a very close relationship with his twin brother. They both attended Sydney Boys High School; played rugby together for the same teams; socialised together; and, from about 1977, lived two doors away from each other in Bayview, a distance of about 400-500m. They both worked as teachers and also as lifeguards at the Northbridge Baths. In 1979, they coached the first team at the Gosford Rugby League Club, where Raymond Butlin was appointed the team manager.

The marriage of the applicant and the deceased and their family

172. The applicant and the deceased met when they were at school. They married in March 1970 when they were both 21 years old. For the first few years of their marriage, the deceased had difficulty conceiving a child. The couple had considered adoption and had asked their friend, Phillip Day, to be their referee. Phillip Day had known the applicant since 1961 and the deceased since 1964 and had been a groomsman at their wedding. After he had filled in the adoption forms, he visited them on New Year’s Eve 1976. They told him that the deceased (who had undergone surgery which allowed conception) was pregnant.

173. Mr Day died before the trial but had made a statement for the inquest into the deceased’s death dated 21 February 2001, and gave evidence on 27 February 2003 at the second inquest into the deceased’s death. The statement and transcript were tendered in the Crown case.

174. Before XD was born, the deceased met Robyn Warren through their husbands, who were both then teachers at North Sydney Boys High School. The deceased and Robyn became friends and used to play tennis together at the Roseville tennis club. Ms Warren would often collect the deceased and, subsequently, her children, as the deceased did not have a driver’s licence.

175. In 1977, XD was born and they moved into the Bayview house. Paul, Marilyn and their three children lived in the same street, a few doors down.

176. In 1979, YD was born. Merilyn Simms (Greg’s wife) observed that the deceased suffered symptoms of post-natal depression for a short period (three or four months) after the births of both of her daughters, each of whom was born by Caesarean section.

177. The deceased was a devoted mother who “absolutely adored” her children ([267]) and was very proud of them ([270]). The applicant’s sister, Pat, described the deceased as a “good”, “loving” mother ([275]) and was not aware of any occasion on which the deceased had gone away without the children ([273]). Julie Andrew, who lived next door, described her as “very caring. Very loving. Very tender. Extremely patient. A mother more so than I was … an inspiration” and “very house proud [and] had a beautiful eye for decoration”, although the applicant “held her on a pretty tight rein when it came to her housekeeping money”. Ms Andrew’s view was that the deceased “would never have been parted from her children” because “she had such a tough time becoming pregnant and having her babies and she was just so connected to them”. Marilyn Dawson could not recall any occasion on which the deceased had gone away without her children.

178. The deceased did most of the housework, including the cooking and ironing. BM, who provided babysitting services prior to JC’s engagement for that role, described the applicant’s clothes as being arranged in his walk-in wardrobe, “neatly placed, colour-coded and typed”.

The applicant’s connection with JC

The circumstances of their meeting

179. In 1979, at about the time YD was born, the applicant was working as a physical education teacher at Cromer High School, where JC, who was born in February 1964, was a student. She was then aged 15 and in Year 10. Her parents had divorced in 1977. She had a good relationship with her father, with whom she had a lot in common. Because JC’s mother did not encourage the children to spend time with their father after their divorce, JC did not see him much. JC lived with her mother, whose new partner, Ray, was “violent and aggressive …, controlling”. He and her mother “both drank quite heavily each night”.

180. In 1980, the applicant told JC that he had been attracted to her when he first saw her in 1979 and wanted to get to know her better. By 1980, the applicant was infatuated with JC, who was then 16 years old and in Year 11.

The applicant’s behaviour towards potential rivals for JC

181. At that time, JC was working as a casual employee at Coles Dee Why on Thursday nights and Saturday mornings. PS, a boy who was slightly younger than JC, also worked there and was responsible for various tasks, including collecting shopping trolleys. PS asked JC to the movies and the Collaroy Plateau disco, which were popular venues in the area.

182. On one occasion, PS was in the Coles carpark, collecting trolleys when he was approached by a “very large man”, who called out, “Hey you,” came up close to him and “shoved [him] against the concrete ramp that went on an angle up to the store and he sort of backed [him] into that concrete structure and … held [him] against the structure.” PS recognised the man as the applicant because Paul Dawson had been his rugby coach and he knew that the brothers had played for the Newtown Jets. The applicant said to PS, “I just want you to stay away from her. Don’t go near her or else”. PS, who described himself as “very small” and “very scared”, responded, “I don’t know what you’re talking about.” The man responded, “[J], [JC].” The man left and PS “retreated … got the trolleys and went back up the ramp and … was probably in shock”. When asked in evidence whether he ever asked JC on a date again, he responded, “Oh no. Of course not”.

The deceased’s work and financial circumstances

183. In about March 1980, the Warringah Shire Council established Warriewood Children’s Centre, a childcare centre within a shopping complex known variously as Warriewood Square or Narrabeen Shopping Centre. The childcare centre was managed by Barbara Cruise. On 31 March 1980, the deceased obtained a position there as a casual worker, looking after the children up to 2 years’ old. She had previously worked for the Council in a similar position from about 1976. It was necessary that there be a nurse on staff, as well as childcare workers.

184. The deceased was paid fortnightly in cash. Ms Cruise observed that the deceased “always seemed to be short of money”. At some time, the deceased’s bankcard statement came to be sent to her at work. It was Ms Cruise’s understanding that the deceased did not want the applicant to know that she had her own bankcard.

The initial sexual approach by the applicant to JC and its escalation

185. In 1980, when the applicant was JC’s “sports coaching” teacher, JC and her friends were helping the applicant at a district carnival. JC was sitting on tiered steps and the applicant put his hand on her leg. Subsequently, JC told the applicant that she wanted a particular school bag which he bought for her and, from time to time, would leave love notes for her in the bag. Because JC was then only 16, he used the code-name, “God”, when referring to himself, in his love notes at least until she came of age. The applicant first proposed marriage to JC when she was 16 and continued to propose to her until she accepted in 1981 while she was still at school.

186. Also in 1980, JC would see the applicant and Paul at the Time and Tide Hotel in Cromer on Friday nights when she and her friends gathered there. The applicant informed JC that they had told their wives that they had gone to the library (the applicant was studying for a Bachelor of Arts degree at the time) but would instead go to the hotel. The applicant, who did not drink alcohol himself, bought JC alcoholic drinks on such occasions.

187. In about mid-1980, JC and a male school friend, RH, invited the applicant and the deceased to play tennis with them. The applicant raised the subject of babysitting and JC agreed to perform babysitting services for his children at the Bayview house. JC lived in Collaroy Plateau at the time and the applicant would pick her up from either her home (if it was a weekend) or from school (if it was a school day) and drive her to the Bayview house to do so. Sometimes, she would stay the night and the applicant would drive her either to school or to her home the following morning. In July 1980, JC babysat at the Bayview house for XD and YD’s combined birthday party.

188. When JC and RH were at the end of Year 10 or Year 11, RH was romantically interested in her and wanted to ask her out (JC was not aware of his intentions). RH trusted the applicant, who was his rugby coach, and would seek his advice on “sport, family, girlfriends”. RH told the applicant of his hope of asking JC out and devised a plan whereby the applicant would go to JC’s house and when RH, who worked as a paper boy, had finished his paper run RH would visit JC’s home. RH envisaged that the applicant would then depart the scene, providing RH with the opportunity of asking JC out. However, when RH arrived, the applicant answered the door and told him that the plan was aborted. RH, who could see JC inside the house behind the applicant, “left in confusion, rode off”. He did not have a “real conversation” with the applicant after this experience. The next time RH saw JC, which was days or weeks later, she was sitting on the applicant’s lap in his office at Cromer High School.

189. In 1980, the applicant invited JC and her friends to come and swim in the pool at the Bayview house. When asked what they wore, JC said:

“Well, all of my friends and I wore bikini bottoms. We never wore tops. It was just the fashion then. So probably bikini bottom.”

190. The applicant offered to teach JC to drive and took her to Dee Why, which was not far from Collaroy Plateau where she lived. One day when the applicant was purporting to teach JC to drive, he said, “[y]ou know you make me feel like an older [RH]” and then kissed her for the first time.

191. About a week later, in 1980, the applicant took JC to his parents’ home in Maroubra. She understood that the purpose of the visit was so that they could have sex. She was very frightened because she had previously been sexually abused by an older boy and his friend and she had not told anyone about it. She divulged the details of this abuse to the applicant. He comforted her and told her that he would help her through the trauma. He took her to his parents’ bedroom, turned the light off, undressed her and lay her down on the bed, knelt on the floor and “abused [her] sexually”. After that occasion, they had sex about once a week on Friday nights, often going to Manly Point to have sex in his car there.

192. The applicant also had sex with JC at the Bayview house when she was babysitting and the deceased was in the shower or asleep. JC recalled the applicant making alcoholic drinks for the deceased, which would cause her either to pass out in her chair, or to become sleepy and retire to bed for the night. The applicant also had sex with JC at Paul’s place.

193. MC, one of JC’s friends, whom she had known since kindergarten, was in JC’s class at Cromer High School. MC’s evidence was:

“… in year 11… [JC] started babysitting for Mr Dawson. She said Mr Dawson was listening to her, because she was feeling very upset about her home life. She said he was supporting her, and helping her through that hard time at home.

… She … said that he was giving her support, he was giving her a job, he was teaching her how to drive. We saw less and less of her, so I didn’t have as many conversations with her in year 11 as I would have liked.”

194. MC said that she and JC and their friends used to have lunch together in the sun near the “PE offices” but that “[JC] began disappearing, and … we would go looking for her, and we would see her in Mr Dawson’s office”. JC told MC and her other friends “that he was trying to help her through a difficult time, and then she started to say that he wanted to marry her, that he loved her”.

195. In February 1981, the beginning of JC’s final year of school, the applicant gave JC a birthday card in which he had written, “The most beautiful girl in the world on her 17^th birthday” and “Happy 17th birthday my little chickadee. To my lovely beautiful bub, hoping today is a very happy one and knowing we will share all the birthdays to follow. All my love forever xxx”. He also put in the envelope two photographs of himself which she understood were given to her so that she could carry them with her. She also received a card from him on Valentine’s Day, 14 February 1981. It contained the printed message, “All I need in all my life is all your love”. The applicant wrote: “To my lovely, beautiful [J]. The happiness you have given me will be with me forever. Happy Valentine’s Day.”

196. As JC had a terrible home life at the time, the applicant’s expressions of love for her made her feel “loved” and “heard”.

197. In June 1981, the deceased’s position at the Warriewood Children’s Centre was upgraded to permanent part-time and she worked 14 hours a week.

198. In July 1981, the applicant and the deceased hosted a birthday party for XD. Greg and Merilyn Simms (who were then living in Winston Hills before his transfer to Muswellbrook) attended the party. In addition to family members, JC was there. Merilyn observed JC sitting on a step outside the family room with the applicant sitting on one side and Paul on the other “consoling her”. This was the last occasion on which Merilyn saw the deceased.

199. On 29 September 1981, the deceased’s hours at the Warriewood Children’s Centre were increased to 21 hours a week. Her shifts were Mondays, Tuesdays and Fridays.

JC’s move into the Bayview house in October 1981

200. In 1981, JC’s home life remained disrupted. On one occasion, JC intervened between her step-father and her mother, which led to her father being called and JC having to leave the house. At about this time, October 1981, the applicant invited JC to live in the Bayview house on the pretext that it would provide an environment which was more conducive to study. The deceased reluctantly agreed as she did not want to go against the applicant and felt sorry for JC.

201. When the deceased told Ms Warren when she was visiting that the applicant wanted the babysitter to move in, Ms Warren responded, “You can’t. You can’t do that, Lyn. You and Chris need to talk. You need to talk.” The deceased said, “What can I do? Christopher wants to move [JC] into the house” and mentioned that JC did not have a “good family life at home”. This was not the first time Ms Warren had heard JC’s name.

202. While JC was living at the Bayview house, she observed that the applicant would refer to the deceased as “fatso” and sang songs which put her down.

203. At about this time, the deceased confided in Ms Cruise that she had some marital problems arising from the fact that her husband had lost interest in her and that, at his request, the babysitter moved into the home. Ms Cruise’s impression was that the deceased was “fairly naïve about it” and that the deceased’s concern was “for the young lady because apparently she had a difficult home life”. Ms Cruise told police:

“… [The deceased] 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.”

204. In re-examination, Ms Cruise confirmed that the deceased had only expressed this sentiment to her once.

205. The deceased also confided in other work colleagues. When Ms Strath told her that she did not think that it was a good idea to have the babysitter living in, the deceased said that nothing would happen because “my Chris would never do anything that was wrong”. Ms Strath said in evidence that the applicant was “always on a pedestal” for the deceased. However, the deceased also told Ms Strath, “I’m not happy about [JC] living there but she’s got nowhere else to live”.

206. The same month as JC moved into the Bayview house (October 1981), Merilyn Simms was packing up to move to Muswellbrook and rang the deceased to see if she should return any of the baby clothes which she had borrowed. The deceased responded that she doubted that she and the applicant would be having any more children.

207. In her diary of 6 October 1981, the deceased’s mother (who was staying at the Bayview house at the time) noted:

“… over to Mona Vale to meet Chris + 2 children. [JC] there too. Lyn shopping. [YD] not too bad with the chicken pox. Sleeping in with [XD]. Chris comforting [JC] on bed in study.”

208. The next day, the deceased’s mother noted in one of several entries to similar effect:

“Lyn to work. [JC] to school with Chris. [JC] has problems + is in Chris’ shadow. Lyn home very unhappy almost in tears about Chris …”

209. Also in October 1981, JC went to the school formal with the applicant as her date.

210. In the last three months of 1981, Marilyn Dawson noticed that the deceased had been staying over at her mother’s (Helena Simms’) house, with Joan and Sid Dawson in Maroubra and at their second house at Nowra. When Marilyn was giving the deceased a lift home, she advised her “to be strong and stay in her own home if she wanted to … show that she loved her children and her home and her husband”. In cross-examination, Marilyn expanded on this and said:

“… when I spoke in the car I thought that she was devastated and perhaps a little flat and maybe she was mentally not coping. … I said you need to stay at home because you don’t want other people in your home, another person in your home, unsupervised. And she - I think she sort of said, well, I’m at the end, I don’t know what to do, I’m sad and – and devastated and - I just think she had a lot on her plate with two little children and she couldn’t believe what was going on … I think she was deeply hurt and struggling, and I tried to boost her up and say, well, come on, you need to fight.”

The applicant’s nose operation and the departure of JC from the Bayview house

211. The applicant went to Mona Vale Hospital on 2 November 1981 to have an operation on his nose. On 5 November 1981, JC visited the applicant in hospital after school. While she was there, she wiped his nose because it was “dribbling”. As it happened, the deceased’s parents came to the hospital to visit the applicant at about that time and saw JC there, as Mrs Simms noted in her diary. Mrs Simms spoke on the phone to the deceased that evening for over an hour and told her that the deceased’s father (Len) said that JC “should go”. It can be inferred that they spoke about what the deceased’s parents had observed in the hospital, which can be taken to have betrayed that the applicant and JC were sexually intimate.

212. After JC had visited the applicant in hospital, she went to work at her part-time job at Coles. On her return to the Bayview house later that evening, the deceased accused her of taking liberties with the applicant. That night, JC went to Paul and Marilyn’s place and slept in the study. After JC’s departure from the Bayview house that evening, JC never saw the deceased again. JC continued to live at Paul and Marilyn’s until 23 December 1981 when she and the applicant left for the Gold Coast intending to start their new life together. After the first night, JC slept in the bedroom of Paul and Marilyn’s youngest daughter.

213. The applicant was discharged from Mona Vale Hospital on 6 November 1981.

214. Marilyn explained the circumstances in which JC came to live in her home as follows:

“I think Lyn didn’t want [JC] to stay in Chris and her home any longer and she had nowhere to go because her mother was an alcoholic and her mother’s partner was leering and touching her and she had nowhere to go and I said that - I agreed that she could stay with us while she finished her HSC.”

The commissioned portraits of XD and YD

215. In late November 1981, Kristin Hardiman, who was studying fine arts and education, set up a stall at a Christmas Fair at Narrabeen High School to sell her own artworks and to obtain commissions for art works. She was approached by the deceased, who was with her two children (one in the stroller and the other walking beside it) and another woman. The deceased asked about getting drawings done of her children. She gave Ms Hardiman her phone number and made arrangements for her to come to the Bayview house to take photographs of the children.

216. In early December 1981, Ms Hardiman visited the Bayview house at the appointed time. The deceased was there with her daughters who were dressed in “beautiful pink broderie anglais[e] dresses” and whose hair was “beautifully done”. The process of taking the photographs “probably took an hour or two”. Some of the photographs taken on the day and sketches which Ms Hardiman did of the children in early January 1982 were tendered.

The North Manly unit

217. After JC had moved to Paul and Marilyn’s house, the applicant and JC inspected a unit in North Manly with the owner. The applicant put down a $200 deposit to secure the unit for lease. However, according to JC, the applicant’s brother, Peter, who was a solicitor, told him that if the applicant moved out of the Bayview house, the applicant would jeopardise his rights with respect to that property. In response, the applicant told JC, “We’re not doing it because I don’t want to lose my property”.

218. Peter denied that the topic of the dissolution of the marriage between the applicant and the deceased ever came up in conversation between him and the applicant. Further, he denied having advised the applicant that if he left his marriage with the deceased he would lose 60-70% of the matrimonial assets and custody of the children because that would have been “very poor advice” and he did not know that there were problems in the applicant’s marriage until after Christmas 1981.

The trampoline incident

219. In about December 1981, Ms Andrew heard “loud crying … wailing”. When she went to the boundary of their properties to see what the noise was, she saw the deceased “backed up against the trampoline” by the applicant. She described that “he had at least one hand on her shoulder … he was a huge man towering over her and screaming at her and she was crying”. Ms Andrew was “really frightened” for the deceased. She did not hear much of the conversation but she heard the deceased say, “What are you doing to us Chris?”. At about this time, YD “toddled out” and the deceased picked her up and said, “gosh, what's daddy doing to us?”. The deceased, the applicant and YD “immediately” went back into the house.

220. A few hours later, Ms Andrew rang the deceased to see if she was all right. The two women met and the deceased told her how worried she was about JC moving into the house. Ms Andrew said in evidence:

“… 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.”

221. When Ms Andrew was asked for the basis for this allegation, her evidence was:

“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’.”

222. This was the last time Ms Andrew ever had any contact with the deceased.

223. At some later time, the deceased came to the laundry door of Ms Andrew’s house and knocked. Ms Andrew’s husband, Malcolm Downie opened the door. His evidence of this interchange was:

“… I opened it and she was all nervy and upset. And she said, ‘Is Julie here?’ I said, ‘No, she’s gone to tennis’, or she’d gone out anyway. Anyway, I said, ‘Are you all right?’ And she said, ‘Oh marital problems’. And I said, ‘Oh, join the club. Things haven't been going too well here either.’ And that was pretty much the conversation.

Q. You said that she was upset. What is it that you saw or heard that led you to form the opinion that Lynette Dawson was upset?

A. Only she looked stressed, and she didn’t have the kids with her. That was strange; that woman never went without her children.”

The Christmas party in early December 1981

224. On Tuesday 6 December 1981, the deceased and the applicant attended a Christmas party at her parents’ house at Clovelly. Helena Simms recorded in her diary:

“Chris said again ‘I only want to look after my 2 little girls!’ I said, ‘what about Lyn? He said, ‘She’s in the kitchen where she belongs!!’”

225. Greg Simms also gave evidence about this event. He recalled being in the dining room of his parents’ place, which was next to the kitchenette, where his mother was cooking. The deceased, the applicant, XD and YD were also there. According to Greg, “out of the blue he turned to [Helena] and just said, ‘Look at my two darling little girls.’”. Helena turned to him and said, “What about your darling big girl out on the verandah?”, referring to the deceased who was on the verandah talking to Len, their father. The applicant said, “She can get in the bloody kitchen where she belongs.” There was no response by anyone present. When it was put to Mr Simms in cross-examination that the applicant had said this in a “joking and friendly fashion”, he responded:

“To my perception at the time … it was said with venom. It was very strong. My mother didn't have a reply to that. She was just quiet and went back to her cooking. And if it would have gone any further, I felt that I would have had to have stood up, but I didn't, I sat there when it stopped.”

The proposed sale of the Bayview house

226. On 21 December 1981, without first consulting the deceased, the applicant retained a real estate agent to sell the Bayview house. He signed a sale agreement on that date. A copy of the agreement was found in the pocket of the deceased’s dressing gown when it was returned in a garbage bag to Helena’s place in Clovelly. Greg was there when the applicant arrived with the deceased’s belongings in “big green plastic bags”.

The Gold Coast trip

227. On 22 December 1981, the deceased went to work at the Warriewood Children’s Centre and then did a “big … grocery shop” at Warriewood Square in readiness for Christmas. She waited outside for the applicant to pick her up but after an hour of waiting, she rang Paul to ask where the applicant was. Paul said that he did not know (although the applicant and JC left for Queensland from his house first thing the following morning). The deceased caught a taxi home. On her arrival she found a note from the applicant on the bed, which read, “Don’t paint too bad a picture of me to the girls.” The deceased saw that the applicant’s clothes and his pillow had gone and rang her mother, who managed to communicate with Pat (through a neighbour who had a home phone). The deceased spoke to her mother and Pat about it. Pat described the deceased as “very upset about it” as she did not have much money or a car and had to look after the two girls.

228. During the phone conversation with the deceased (which was necessarily hurried as Pat was using a public phone which she had to feed with coins), Pat invited her to come and stay for Christmas. The deceased gave various reasons for refusing: she did not have enough money; she could not drive; she did not want to risk losing her job (which required her to return to work in the new year after the Christmas break); and also that she wanted to stay at home, in case “Chrissy comes home”.

229. That night when the deceased put her daughters to bed, she kissed them and said that the kiss was from the applicant and that he had gone on a short holiday. The deceased was also concerned because she wanted to give them a cubby house for Christmas which had not yet been paid for.

230. Helena Simms’ diary of 22 December 1981 recorded:

“Chris ‘shot through’ left Lyn + 2 girls on their own.”

231. When Greg Simms was visiting his mother in Clovelly shortly before Christmas, he learned that the applicant had left the Bayview house, apparently permanently in light of the note he had left for the deceased. Greg invited the deceased to come to Aberdeen, a town in the Hunter Valley between Scone and Muswellbrook, to spend Christmas with him and his family. However, she declined, saying (as she had to Pat) that she wanted to stay in the house in case the applicant came home. On that occasion, the deceased mentioned that the applicant wanted to sell the Bayview house but that, as she did not want to, she had refused to sign a document. Greg had no further contact with the deceased after this conversation.

232. Every year up to 1981, the deceased and the applicant had exchanged Christmas cards with Phillip Day. However, at Christmas 1981 he did not receive a card.

233. On 23 December 1981, the applicant left the deceased and their two infant daughters to go to Queensland with JC. The applicant told JC that they were going away to start a new life. JC explained her decision to go with him as follows:

“I think that I had nowhere else to go and he said ‘I will take care of you’ and I needed someone to take care of me.”

234. When asked whether she found that an “attractive option”, she said, “I felt that was the only option”.

235. Before their departure, the applicant took a photograph of JC, with his car in the background. When JC was asked in cross-examination to reconcile the applicant’s preparedness to leave permanently with his desire to protect his entitlement to the Bayview house, she responded:

“It does seem impulsive but I think it was a desperate time at that point.”

236. As they drove north, JC developed hives and a gastric disturbance and felt very unhappy as she missed her family and wanted to come home. The applicant told her that they could continue their relationship in Sydney and drove back through the night to Paul and Marilyn’s house.

Christmas 1981

237. On Christmas morning the applicant phoned the deceased, saying that he was in Aberdeen (near Muswellbrook in the Hunter Valley) and would be back the following morning. The deceased rang her mother who noted it in her diary.

238. The applicant and JC arrived at Paul and Marilyn’s place on the morning of Christmas Day before Paul and Marilyn left to go to his parents’ (Sid and Joan Dawson’s) place at Maroubra for Christmas lunch. The applicant told them not to tell the deceased that he and JC were at their place that day. When asked how she responded to this instruction, Marilyn said:

“I know I wasn’t happy, but I’m not confrontational, so I probably didn’t say anything because I felt torn between helping Chris and trying to help Lyn and Chris’ family, his parents probably didn't know where he was and I just felt upset that I was in that situation.”

239. Marilyn’s recollection was that the applicant and JC spent most of the day in Paul’s and her bed because of driving all night. By contrast, Paul said that he did not recall any visitors on Christmas morning and said that, at the end of 1981 both the applicant and the deceased were “very positive” about the state of their marriage. He said that his recollection was that the applicant had phoned him on Christmas Day and told him that he would not be joining them for Christmas. Paul later said that he knew that he spoke to the applicant on Christmas Day but could not recall whether it was face-to-face or on the phone. Paul denied that he knew that the applicant was with JC on Christmas Day.

240. For Christmas, the applicant gave JC a Christmas card in an envelope on which was written, “JMD xxx”, which JC understood to imply that they would marry and she would become Mrs Dawson. The applicant had written on the card, “To my darling [J], all my love on our first real Christmas together. Knowing I’ll love you more each day, wishing only of your happiness forever…” ([183]) The applicant and JC spent Christmas night at the Forest High gym, to which they had access because Paul worked as a teacher there.

241. The deceased spent Christmas Day with the applicant’s family (Sid and Joan, Paul and Marilyn, Lynelle, Peter and their children) at his parents’ place at Maroubra. Marilyn could not recall whether she or Paul gave the deceased and her children a lift to Maroubra that day. Paul was upset at Christmas 1981 because it was the first Christmas he had ever spent without the applicant. The deceased comforted him and assured him that everything would be all right between her and the applicant.

242. Marilyn recalled that on Christmas Day, the deceased was “dresse[d] nicely, but … reserved and … worried”. Lynelle did not recall any discussion about the applicant’s absence on that occasion and considered that “[t]hat day proceeded like any other Christmas Day, happily.”.

Boxing Day 1981 to New Year 1982

243. On 26 December 1981, JC told the applicant that she did not want to continue the relationship. In cross-examination, she denied that this was a mutual decision, insisting that it was her own. At her request, the applicant drove JC to her mother’s place. After an hour, he returned and drove JC to her eldest sister’s home in Neutral Bay, where JC stayed for about a week.

244. The applicant visited JC almost every day at Neutral Bay and on New Year’s Eve he took her to the headland at Manly Point.

245. On 31 December 1981, Helena noted in her diary:

“Chris off on his own on yacht party! Refused to take Lyn & 2 girls to see the yacht.”

Early January 1982

246. On New Year’s Day 1982, Pat Jenkins rang the deceased because it had been their father’s birthday the previous day and she had missed the date. Her understanding was that the applicant was back living in the Bayview house with the deceased and their children. The deceased told her that the applicant had gone to a “yachting party” for New Year’s Eve and when she asked if she and the girls could go with him, he said, “no”. When the deceased asked if he could drive XD and YD down to the park so that they could sit and watch the boats, he also declined. This was the last time Pat Jenkins had any contact with the deceased.

247. Helena noted in her diary for 1 January 1982:

“Sid & Joan drove Lyn & Children down here for few days. C home sea sick all night.”

248. At about this time, the deceased had told Pat that she was very excited about her daughter starting school that year and had already purchased a school uniform for her.

249. Helena noted in her diary for 2 January 1982:

“Lyn children & me to Bondi Jn shops. Chris rang. [XD] upset at not going to Northbridge with him. Chris rang again. Dad [Len] caused an upset, held [XD] back from phone from talking to her Dad.”

JC’s trip to South West Rocks

250. In early January 1982, JC went to South West Rocks on the mid-north coast of New South Wales to avoid staying with the applicant who was putting a lot of pressure on her to be with him, which she did not want because she was “just a child”. At that time, two of JC’s sisters were staying in a caravan owned by their father at South West Rocks. KL, a friend of JC’s from school, drove to South West Rocks with her boyfriend and slept in a tent in the camping ground. MC was also in South West Rocks.

251. Before she left, the applicant “begged” her to make a reverse-charge call to him at the Bayview house every day of her absence.

252. JC flew to Kempsey with a friend, VE, and VE’s boyfriend. They caught a taxi from the Kempsey airport to the caravan park at South West Rocks. JC phoned the applicant at home every day from a public phone box near the caravan “[b]ecause he asked [her] to”; he was “very persistent and overbearing”; she did not feel that she had a choice; and she “did what she was told”. The applicant wanted to know what she was doing and told her that he was suffering from hives and gastric problems (the identical symptoms to those which she had suffered when they left Sydney for Queensland on 23 December 1981) and that he missed her terribly and could not live without her. He did not talk about himself at all or his own family life.

Family movements in early January 1982

253. On Sunday 3 January 1982, the applicant went to Helena’s place at Clovelly to pick up the deceased and XD and YD (who had been there since New Years Day). XD did not speak to him, as noted by Helena in her diary.

254. On Monday 4 January 1982, Mrs Simms wrote to her daughter, Pat, and her husband, Ron, as she did every week, 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. Sid reckons he’ll come out of it in time, but things have been very traumatic, especially when he took off again New Years Eve for a yachting party, so she was alone again with the children. [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.

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. Sid is so sad about the whole thing, and Joan seems to feel Lyn hasn’t been helpful. The way I read it. Paul has left for Queensland today, so maybe he’ll not have him to go to at the drop of a hat + have to stand on his own for a few weeks. Lyn + children were here on Friday, New Years Day + stayed till Sunday morning when Chris called & collected them after he had played touch football.

…”

255. Mrs Simms’ letter indicates that, as far as she was aware, Paul and Marilyn and their family left for Lake Munmorah on 4 January 1982. Marilyn said that they “borrowed Aunty Audrey's [Paul’s aunt’s] caravan and we packed up our children and we drove to Lake Munmorah and stayed for a holiday in the caravan”. She estimated that they stayed there for about a week.

256. At about this time, the applicant phoned Phillip Day to apologise for not sending the usual Christmas card to him. He explained that he and the deceased were experiencing marital difficulties and that he wanted to speak to him about them at the Northbridge Baths on Saturday 9 January 1982.

257. On Thursday 7 January 1982, Ms Strath saw the deceased at work. The deceased told her that “it wasn’t a very happy Christmas because [the applicant] had left but he was back now.” The deceased was “upset” but, as she was “very professional”, she did not cry. The deceased told Ms Strath, “Everything looks like it's going to be fine because we're going to see a marriage psychologist the next day, on the Friday”.

8 January 1982

258. On Friday 8 January 1982, the deceased went to work at the Warriewood Children’s Centre. During her lunch break, she and the applicant went to a marriage counsellor. After the session, her work colleagues observed that she and the applicant were holding hands and she seemed to be “quite bright and bubbly”. On her return to work that afternoon, the deceased was “very happy” and told Ms Strath, “Oh, it was really good, really positive, and I’m hoping that we can move forward and work together”.

259. On Friday afternoon or early evening, Phillip Day phoned the Bayview house to confirm arrangements to meet the applicant at the Northbridge Baths on Saturday 9 January 1982. The deceased spoke to him as the applicant was asleep. Although Phillip, who did not particularly like talking on the phone did not raise the topic, the deceased volunteered that earlier that day she and the applicant had attended marriage counselling. She also told him that she would pass on his message to the applicant that he would meet him at the pool. Phillip considered that the deceased was “speaking quite normally”, was “very calm and relaxed … warm and friendly” and “sounded confident that the marriage would be repaired”.

260. Later that evening, Helena phoned the deceased. She reported the conversation to her husband, Len, and her children, Pat and Greg, and noted in her diary:

“… L & C to psychiatrist. Rang Lyn, sounded half sozzled said all was well. Tell Pat & Greg & Pop.”

261. In a subsequent letter to Pat dated 21 January 1982, Helena said that the deceased had also told her in this conversation that she and the applicant “were going for a 5 day laze on the beaches, seeing the children were going away”. This indicates that, as at 8 January 1982, there were plans for XD and YD to be looked after by others in mid-January 1982.

262. The Crown alleged that on or about 8 January 1982 (the weekend after JC had gone away) the applicant, alone or with the assistance of another or others, murdered the deceased, his wife of almost 12 years, and that, at that time or later, the applicant, possibly with assistance, disposed of her body which has never been found.

9 January 1982: the Northbridge Baths

263. In 1982, the applicant and his brother Paul worked part-time as lifeguards at the Northbridge Baths. Col Stubbing leased the baths at the time. There was a single phone at the baths on the counter, out of sight of customers.

264. In 1982, CB, who was then 14 or 15, worked occasionally as a part-time casual in the shop there. CB recalled that on one occasion in the summer of 1981/1982 she picked up the phone and heard long distance pips. A female asked to speak to one of the Dawson twins but she could not recall which (she could not distinguish the applicant from Paul). She found the person, who went to take the call but did not hear anything of the contents of the call. CB first made a statement to police in 2016.

265. At the time of the call, CB recalled that Mr Stubbing was still there and “was standing very close to either Chris or Paul who she called over to take the phone call, and they were talking together”.

266. JM also worked at the Northbridge Baths in the summer of 1981/1982 although much more frequently than CB did. Depending on the number of people there, she might work from 8am until 6pm. She was paid in cash by reference to the number of hours worked. In her diary for 9 January 1982, JM wrote:

“January 9, Saturday, 1982, worked in shop, 8 to 5.30. Didn’t get any money because, as usual, Col left at 12 and Chris Dawson never pays.”

267. Apart from her diary entry, JM had no recollection of that day and, in particular, had no recollection of taking a call for the applicant that day. She did not recall CB working that day and said that when she was working with someone else (apart from Mr Stubbing, who was generally there) she had mentioned it in her diary.

268. Phillip Day arrived at the Northbridge Baths sometime between 2pm and 3pm. Helena (whom he knew as he was a childhood friend of the applicant) was already there with XD and YD. He started to talk with the applicant who told him that “he had been away around Christmas and that he was keen to make the marriage work and to sort out the problems that he and [the deceased] were having.” Mr Day recalled that the applicant was summoned to the office to take a call. On his return, he told Phillip that the call was from the deceased who was going away for a few days to “sort herself out”. The applicant also told Phillip that the deceased had asked him (in the phone call) to drive Helena, XD and YD to Helena’s place at Clovelly. Phillip left with them while the applicant finished his shift at the Northbridge Baths.

269. Helena noted in her diary for 9 January 1982:

“To Northbridge for swim with girls. Lyn phoned, left home. Chris agitated, said she’s on Central Coast. [XD] & [YD] home with me for the night. Phil Day drove us. Really shocked!”

270. Ms Warren’s evidence was that the applicant called her from the Northbridge Baths and asked if Lyn was with her. Ms Warren answered no and said that she had not seen her for a couple of weeks. He responded, “she left the home this morning with a couple of bags, she was going to be returning some clothes to a shop at Chatswood … 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”. Ms Warren accepted that the call could have been made on 9 January 1982.

271. The Crown submitted that the absence of XD and YD on the night of 9 January 1982 (because they were overnighting with Helena at Clovelly) gave the applicant an opportunity to dispose of the deceased’s body, if he had not done so already.

272. Helena’s diary entry for Sunday 10 January 1982 read:

“Didn’t sleep all night. Down Bay for swim with [XD & YD]. Great! Chris rang. Lyn rang him not coming home. With Sid, Joan + [XD & YD] to Northbridge Pool. Kids home with Chris. Lyn to ring to me Wednesday.”

273. In his statement, Phillip Day said:

“I maintained regular contact with Chris over the following weeks. On one or two such occasions I was advised by Chris that Lynne had telephoned. He also informed me that she had used her bankcard somewhere near to her home.”

The applicant’s call to JC and his collection of her from South West Rocks

274. On about 10 January 1982, in the last of JC’s calls to the applicant from South West Rocks, the applicant 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”. This was the only time he had mentioned the deceased in their phone calls while JC was away. Although JC accepted that it was not in her statement dated 17 May 1990 that the applicant had said that Lyn was not coming back, she was adamant in cross-examination that the applicant had definitely told her that the deceased was not coming back and had not said that he did not know whether the deceased was coming back. On appeal, the applicant contested the finding that the applicant had said that the deceased was not coming back (made in verdict judgment [187]) and submitted that this Court ought be “cautious about the alleged conversation”.

275. JC agreed to come back with the applicant to Sydney to live with him. The applicant arranged for XD and YD to be looked after on the night of 10 January 1982 and dropped them off before leaving for South West Rocks to pick JC up. He drove through the night, slept in the car and arrived there at dawn.

276. KL was sitting beside JC on the beach when she saw the applicant standing by a car “off in the distance”. KL asked JC, who had her back to the applicant, “What’s he doing here?”, to which JC responded, “I don’t know”. KL described JC as being “hunched up and … sort of turned away from where [the applicant] was”. According to KL, JC “collapsed her body and cringed”. KL did not see JC again until after JC had left the applicant, which was in 1990 (see below).

277. In the day or days prior to the applicant’s arrival, a male friend, CN, heard JC and her female friends talking about the possibility that the applicant would come. CN said that the applicant “turned up and said [to JC] ‘we’re going’”. CN estimated that the applicant was only at South West Rocks for ten or fifteen minutes.

278. JC and one of her sisters met the applicant on the beach at South West Rocks. JC’s imminent departure came as a shock to MC, who was in the campground when the applicant arrived. MC said in evidence:

“I didn’t know she was going to leave. I thought she was there with us, and I was really happy about that, because I hadn’t seen her a lot in year 11 or in year 12, and I was so happy that she was there, and I didn’t know that she was going to leave, and then all of a sudden she was gone.”

279. When MC realised that JC was leaving, she asked her not to go, in part because she wanted JC to stay for MC’s birthday, which was on Tuesday 12 January. JC responded, “I have no choice, I have to go”.

280. For the purposes of the appeal, the applicant accepted the trial judge’s finding at [555] as follows:

“By no later than 11 January 1982, however, Mr Dawson had driven to South West Rocks to collect JC and immediately returned with her ...”

The return of JC to Sydney

281. The applicant drove JC and one of her sisters (who needed a lift) back to Sydney. JC’s recollection was that they arrived back in Sydney on 10 or 11 January 1982. This accords with MC’s evidence that they left before her birthday on 12 January 1982.

282. The applicant and JC dropped JC’s sister off at her place before returning to the Bayview house. As for the applicant’s children, JC said:

“We might have picked them up on the way home, but they were dropped off somewhere when he drove to pick me up.”

283. From the first night of their return, they slept in the same bed which the applicant had formerly shared with the deceased. JC denied that she had stayed at her mother’s place first, had only moved in shortly before XD started school and slept in the study. JC explained:

“Mr Dawson told me that he had needed my help. He said that Lyn was not coming back, he needed my help with the children. I felt obligated to do that. He’d come up to pick me up from South West Rocks, he’s done me a favour, I felt as though I had to do that. I didn’t feel like I had a choice.”

284. The following exchange occurred in her cross-examination:

“Q … Do you agree he needed some assistance with the children?

A. He needed assistance with the children. He couldn't cook, he couldn't clean, he couldn't do the washing.

Q. And you, I suggest, wanted to be with him?

A. No I didn't.

Q. And that whilst as your older self, you may look back and think why did I do all that cooking, cleaning, looking after the kids, with respect to you, Ms [C], at the time you were very happy to do it?

A. No. I had to look up a cookbook to learn how to do mashed potatoes as the three of them sat at the counter watching me. It was an awful situation.”

285. JC was later recalled for further cross-examination. Once again, it was put that after returning from South West Rocks, JC went to live with her mother before moving into the Bayview house, which she again denied, maintaining her evidence that she moved straight into the Bayview house. The following exchange occurred:

“Q. And that there was some discussion before that actually occurred?

A. No, there was not. He came up to get me to install me into his place to look after his children and take care of all the cooking and cleaning, et cetera, because he told me his wife was not coming back.”

286. In the main bedroom of the Bayview house, there was a basket where there were “two diamond rings” and “various costume jewellery” belonging to the deceased. The deceased’s underwear was in the drawer and her clothes were in a walk-in robe. As far as JC could judge, the wardrobe and drawers were full. The applicant told JC that she could take anything she wanted of the deceased’s belongings. JC took a couple of tops and some pants. In the ensuing days and weeks, the balance of the deceased’s personal effects were put into green garbage bags and eventually delivered to the deceased’s mother’s place.

287. From time to time, JC, who was frustrated by the difficulty and rigours of looking after the children full-time, would ask the applicant when the deceased was coming back. He responded by telling her that she had gone away with religious people.

11 January 1982

288. On Monday 11 January 1982, the deceased was rostered to work at the Warriewood Children’s Centre. She did not turn up. The applicant rang Ms Cruise (at work as he did not have her home number) to tell her that the deceased had “gone away and needed some time out and he didn’t know when she would be back”. Further telephone calls were exchanged between them to the same effect. As at 11 January 1982, the deceased had outstanding pay, which she never collected. Ms Cruise returned it to the pay office.

289. After 11 January 1982, a bankcard statement was delivered to the deceased’s work. Ms Cruise opened it because she was “curious” because she “had [her] doubts”. She could not recall what the statement disclosed. She rang the applicant and told him that she had received a statement for the deceased. The applicant came to collect it.

290. On about 11 January 1982 (on the basis that they left on 4 January 1982 and stayed away for about a week), Paul and Marilyn Dawson returned with their children from their break at Lake Munmorah. They walked over to the Bayview house and spoke with the applicant and JC who were both at the front door. Marilyn considered the applicant’s demeanour to be “perfectly normal” and that he did not seem “upset”. However, she also said that he was concerned that the deceased was missing.

291. Ms Simms’ diary of Wednesday 13 January 1982 said:

“… Lynn didn’t phone as promised – upset! No call to Chris either.”

292. Subsequent diary entries record the movements of XD and YD, including between grandparents on both sides, as well as Helena’s calls to the applicant to find out if he had news of the deceased.

Ms Andrew’s observations of the backyard of the Bayview house

293. The applicant made no contact with Ms Andrew about the deceased’s whereabouts. In the new year (of 1982), Ms Andrew observed over the fence that JC was beside the pool wearing only a G-string bikini bottom. When Ms Andrew noticed that the deceased was not living in the Bayview house anymore, she “felt that something bad had happened to her”. When she was challenged about why she did not go to the police, Ms Andrew explained that at that time “women were disenfranchised” and she herself did not have any experience with family breakdown, domestic violence or the police. She described her inaction as being (with the benefit of hindsight) “to [her] great regret and shame”.

The sketches of XD and YD which the deceased had commissioned

294. By mid-January 1982, Ms Hardiman had finished the sketches of XD and YD from the photographs which she had taken in December. She phoned the Bayview house to ask when she could deliver them. The applicant answered the phone and said, “She’s gone away and doesn't want them anymore”. Ms Hardiman then “asked if he wanted to see the drawings because they were of his children and he said ‘no’ and that was the end of the conversation. I remember it very very clearly because of - it was so odd”.

295. On 21 January 1982, Helena wrote to Pat, reporting on the deceased’s disappearance. She said:

“Have been trying to write you for a couple of weeks, hoping things would resolve themselves. This will only be a short note + one day I will write a fuller letter with all the news soon. The long + short of it is, Lyn took herself off on the 9^th + after 3 phonecalls to Chris + none to me, as promised, we now haven't heard for well over a week. Wont state where she is, only once it was Central Coast, Gosford, … now North. I was with Chris at Northbridge Pool when he had the first call + he was obviously very much affected and emotional.

… She was very affected with Chris leaving her + the girls right on Xmas but Chris assures they were ‘coming good on the Friday things were happy, yet she'd about turned on the Sat morning. Whether she has cracked under strain or is being vindictive or what the answer is I don't know. …

As she told me at one stage she had said to Chris ‘You give all your love to your 2 girls, your companionship to your twin brother, where do I come in?’ I think now Chris is going to put it in the hands of Missing Persons. Chris has looked after the 2 girls until he took them + Paul's three down to Shoalhaven to Joan + Sid for a 2 week stay. They are supposedly having a holiday but they also have Lynelle's 2 as well so it will certainly be no holiday for Sid + Joan.

I've been walking around the house like a ‘zombie’ sleeping nightmares thrown in. I brought the 2 girls home on the Sat from the pool + took them back on the Sunday. Chris has dropped them in here for a day visit while he dashed into town on business.

…

Lyn has told Chris on the phone she doesn't care about her job so after C informed them that her return to work is not definite no doubt they will fill the position.

Hopefully I will drop you a line in a few days to say all is well. 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].”

296. It is plain from the terms of the letter that the applicant was the source of much of its contents.

297. The deceased had planned a surprise party for Helena’s birthday (1 February) to be held at the Bayview house on 30 January 1982. Prior to 8 January 1982, the deceased had sent out the invitations, which contained directions. Pat received the original invitation from her aunt and kept it with Helena’s papers, which were subsequently given to the police. On 22 January 1982, Helena learned of the surprise party and noted it in her diary. When her birthday, 1 February, came and went, she noted:

“What a sad birthday & no ring from Lyn.”

298. Marilyn Dawson recalled that, over the period following the deceased’s disappearance, the applicant had told her the following about her whereabouts:

“He said that she’d been sighted by Sue Butlin at Gosford. He said there’d been some religious people come to the house and he wondered if she’d gone to a retreat. He would have said that Lyn had phoned him at the baths and said she needed some time out and, um - I might be confused there because my husband may have told me that.”

299. When asked about her understanding of the nature of the relationship between the applicant and JC in early 1982, Marilyn said, “Well, I thought they were a couple”.

JC’s 18^th birthday

300. The applicant and JC continued living in the Bayview house with XD and YD. On JC’s 18^th birthday in February 1982, the applicant gave her a card to mark the occasion. On the envelope, the applicant wrote, “To the most beautiful girl in the world on her 18^th birthday”. The printed part of the card said, on the cover, “Let’s have some good clean fun on your birthday …” Inside the card, the message continued: “… Like taking a bath together! Happy Day!”. He wrote the following message: “To my beautiful [J], Hoping it is a Happy Day for you – you deserve every day full of happiness & love. All my love always, Chris xxx”. He also wrote the following message to her from his daughters: “Happy Birthday, [J], Thank you for being our [J]. Love the terrible two [XD and YD] x x.”

301. Also on her 18^th birthday, a photograph was taken of JC in clothes which she identified as having belonged to the deceased.

The missing person’s report made by the applicant on 18 February 1982

302. The applicant reported the deceased missing on 18 February 1982. His report is summarised as follows in the missing person’s file:

“Initial missing persons report: 18 February 1982.

Possible destination: North Coast.

Reason for inquiry: Concern for welfare

Last heard of: [1]5/1/1982

DOB 25/10/1948.

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.”

(Emphasis added to highlight the first version the applicant gave about the deceased’s bankcard statement.)

303. As a result of the applicant’s report, the Missing Persons Unit conducted an investigation into the deceased’s disappearance from 1982 until 1991, at which point the matter was investigated as a suspected homicide (as to which see further below).

304. On 27 March 1982, the applicant placed a personal advertisement in the Daily Telegraph which said:

“LYN I love you, we all miss you. Please ring. We want you home, Chris.”

Alleged sighting by Sue Butlin

305. In about mid-April 1982, Sue Butlin was working at a food barn beside the Pacific Highway at Kulnurra. She knew the deceased as their husbands had an association through the Gosford Rugby League Club and the two couples had built a retaining wall together at the Bayview house. They also socialised together as the Butlins’ daughter used to like coming for a swim in the Dawsons’ pool. Ms Butlin thought that she saw the deceased and walked towards her but the woman she saw turned around and got into a car and drove off without showing any sign of recognition. This evidence was given by Sue Butlin’s husband as she had died before the trial.

306. On 29 April 1982, a report in the Missing Person file for the deceased recorded that the applicant had said that he and the deceased had had marital problems for 18 months and that they had attended a “psychiatrist the day prior (to the deceased’s disappearance) to resolve the issue”.

307. Helena noted in her diary for 18 May 1982 that she had seen Sue Butlin at Circular Quay and that Sue “thought she saw Lynn 5-6 weeks earlier at Gosford”. Helena documented that she had phoned the applicant. On 20 May 1982, Helena again noted the sighting and that she had spoken to the applicant about it.

308. Ms Butlin died in May 1998 without having been interviewed by police about this sighting. Mr Butlin, who was first interviewed by police in 2001, recounted his wife’s version. He told police that she was “positive that it was Lyn and she approached Lyn and Lyn moved off”.

Ongoing Missing Persons investigation

309. The deceased’s family believed, for a time, that the deceased had gone away, but was safe and would return. Pat explained the basis for their collective belief as follows:

“When someone just drops out of your life, a much loved person just drops out of your life you don’t know what to believe. There’s always that little tiny - even when things seem otherwise there is always that little bit of hope that, you know, you’re going to find her. And, you know, that was a very distressing time for all of us. So there was, that was a remote possibility but to think otherwise would mean we wouldn’t see her again so we had to have hope.”

310. On 17 August 1982, the staff of the Missing Persons Unit contacted the applicant and asked him to supply a profile of the deceased. On 17 August 1982, the applicant provided the Antecedent report, which said in part:

“Possible Contacts

All girlfriends have been contacted- no success.

Work colleagues- Warriewood Sq Child Minding Centre- no success

…

There was a slight possibility of contact with a religious organisation -- Ms Helena Simms ([phone number supplied]), Lyn's mother followed through on this possibility.

History-Lyn + I had been having marital problems for app[r]ox 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.

We both went to a marriage guidance councillor/psychiatrist on Friday 8^th Jan.

Everything seemed fine, when I dropped her back at work, we were both in particularly good spirits. We were holding hands+ once again felt close. Later that night, she appeared distressed and had difficulty coping with our youngest daughter.

Sat 9 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.

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.

Lyn was reportedly seen at Narraweena- reported to her mother also at Gosford by Mrs Sue Butlin [phone number given].

The last contact I had with her was by phone on the 16 Jan 1982.

Sgt Brian Gardiner- Manly Detectives has been advising me on procedure

C.Dawson 17.8.82”

311. On 21 August 1982, Helena, too, provided a document to the Missing Persons Unit at their request, which said, in part:

“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 22^nd 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 8^th 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 a[l]right. That was January 9^th.

…

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 13^th.

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 26 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.

…

Around about the same time or earlier [end of April or May] 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.

…

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 … 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.

…

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.

…”

312. The Missing Persons file indicates that enquiries were consistently being made to find the deceased, including by Helena. None of these enquiries yielded anything.

313. In December 1982, the deceased’s family engaged private investigators to look for the deceased but nothing was discovered.

The dissolution of the marriage of the applicant and the deceased

314. On 23 April 1983, the applicant commenced proceedings seeking an order for dissolution of his marriage to the deceased on the ground of abandonment. A decree nisi order was made on 15 June 1983. Following the dissolution of the marriage, the applicant was awarded all marital assets, including the Bayview house, and sole custody of XD and YD.

315. In July 1984, Jeffrey Linden, the solicitor with carriage of the family law matter on behalf of the applicant, wrote to Helena (presumably as the deceased’s next-of-kin) seeking her signature on an enclosed form (which was not identified by the evidence). Helena responded on 27 July 1984:

“Dear Sirs,

I am in receipt of your letter delivered today and have signed the enclosed form as requested.

It would be my dearest wish to be able to comply with your other request but I last saw my daughter on Jan 3, 1982 & last spoke to her over the phone on Jan 8, 1982 + up to this very minute neither her parents, brothers, sisters or friends have had any contact from her.

Yours in despair,

Helena M Simms”

The marriage of JC and the applicant, their move to Queensland and the birth of KD

316. In January 1984, the applicant and JC married. Photographs of the occasion depict JC wearing rings. When asked where they came from, JC said:

“The wedding ring was made from scratch to match his one that he had left from his first marriage and the diamond ring was made using the diamonds from Lyn’s engagement ring and eternity ring that she left.”

317. In December 1984, the applicant, JC (who by that time was at least eight months’ pregnant), XD and YD moved to Queensland. After driving his family to Queensland, the applicant returned to Sydney to pack up the house. On the return trip north, he travelled with his brother, Paul, Marilyn and their three children, who settled nearby. In January 1985, the applicant and JC’s daughter, KD, was born. JC was then 20. When she gave birth to KD, JC was overcome with love for KD and realised that she felt very differently towards KD than she did to XD or YD. This led to tension with the applicant which JC considered arose as a result of the applicant’s wish to be a family with three children, like Paul’s family.

The progress of the investigation into the deceased’s disappearance

318. In 1985, Ms Strath wrote to the NSW Ombudsman, asking about the police investigation into the disappearance of the deceased. The investigation in the Missing Persons Unit was not taken up by the Homicide Squad until 1990 (as outlined below).

The applicant’s representation about what Ian Kennedy had told him

319. In about 1985, the applicant and Paul attended a Sydney Boys High School reunion, as did Ian Kennedy, who was a police officer in the NSW Police force from 1968 until 2000. Mr Kennedy had no information about the deceased’s whereabouts and at no time did he tell the applicant that he had heard a “whisper” that the deceased had moved to New Zealand. To the extent to which the applicant alleged that Mr Kennedy had intimated as much, I reject the applicant’s version and put it to one side.

The end of the marriage of JC and the applicant

320. Towards the end of 1989, JC decided to leave the applicant. In January 1990, JC, the applicant, XD, YD and KD went down to Sydney to visit JC’s mother, as they usually did at that time of year. In March 1990, JC separated from the applicant and, on 1 March 1990, she commenced proceedings seeking custody of KD. JC subsequently obtained a divorce from the applicant. She obtained custody of KD and the applicant was given rights of access. The property division was resolved by agreement.

The meeting between JC and Greg and Merilyn Simms

321. In 1990, JC arranged to meet Greg and Merilyn Simms. They exchanged details of what they knew of the deceased’s disappearance from which it became obvious that there was a stark difference between what the applicant had told JC (that the deceased had gone and was never coming back) and what he had told others (that the deceased had contacted him and told him that she needed a break). JC wanted to alert the police to this.

The Mayger/Wright investigation from 1990-1992

322. JC was first interviewed by police in May 1990 and made a statement dated 17 May 1990. A case management report of the investigation recorded that a number of friends and associates of the deceased were interviewed by police, including Greg and Merilyn Simms. There were also inquiries into bank accounts, social service and tax records.

323. On 15 January 1991, the applicant participated in the ERISP. He was interviewed by Detective Mayger, the officer in charge of the investigation (OIC), who was part of the Major Crime Squad. The applicant’s then solicitor, Ms David (who appeared for him in the trial), was present.

324. The applicant made various statements in the ERISP, which were referred to in the verdict judgment. For example, he said:

“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 [to] come along to the meetings and getting her literature and all.”

325. The case management report recorded, without explanation, that “Inquiries [were] suspended” on 29 May 1992. Detective Mayger gave evidence that, as far as he could recall, it was suspended because of the reference in the Missing Persons file to Ms Butlin having sighted the deceased (which, if true, indicated that the deceased had not been murdered by the applicant). Detective Mayger had never spoken with Ms Butlin.

The investigation conducted by Detective Damian Loone from 1998 to July 2015

326. Ms Strath’s criticisms of the Homicide Squad for suspending the investigation in 1982 came to the attention of Inspector Paul Hulme in a social setting. Inspector Hulme revived the investigation and, on 21 July 1998, appointed Detective Loone as the OIC of the investigation and instructed him to take the matter to the Coroner’s Court. Detective Loone conducted the investigation until 20 March 2014.

327. During the period of his investigation, Detective Loone and those under his command conducted interviews and took statements, including from JC and her family (her sisters and parents); the deceased’s family (Pat, Greg, Merilyn, and Phillip Simms); the applicant’s family (Lynette and Ross Hutcheon, Paul, Marilyn and Peter Dawson); the applicant’s and deceased’s daughters (XD and YD); JC’s friends (including VE and PS); the applicant’s and deceased’s friends (Mr Day); those associated with the Northbridge Baths (Mr Stubbing, CB); the deceased’s colleagues from the Warriewood Children’s Centre (Ms Warren, Ms Strath and Ms Grantham); the neighbours at Bayview (Ms Andrew); and witnesses relating to potential sightings (Mr Butlin). He also conducted an investigation of the land surrounding the Bayview house.

328. During the course of his investigation, Detective Loone submitted briefs of evidence to the State Coroner. The first inquest (at which no evidence was called) took place in 2001. The second inquest, at which oral evidence was called, took place in 2003.

329. In July 2015, the matter was transferred to the Unresolved Homicide Squad.

The school reunion in about 2007

330. Some time before Phillip Day died in February 2007, there was a “living wake” for him which was attended by several former students from Sydney Boys High School including the applicant and Paul. They were sitting next to each other when Kay Sinclair, whose second husband was an old scholar, engaged in conversation about first and second marriages. Ms Sinclair asked how the applicant’s first marriage had ended, to which he responded that his first wife had left him to join a commune in the Blue Mountains. At about this point, Paul volunteered that the applicant’s first wife was “a bit crazy”.

The investigation conducted by Detective Daniel Poole from July 2015

331. In July 2015, the investigation was allocated to Detective Senior Constable Daniel Poole of the Unsolved Homicide Squad. Pat gave him Helena’s diaries and letters.

332. In 2018, the applicant was arrested and charged with the murder of the deceased.

Proof of life enquiries

333. Despite extensive searches, no evidence was obtained to indicate that the deceased was alive after 8 January 1982. The searches established that the deceased has not travelled from Australia on an Australian passport; is not registered with Medicare or the Australian Taxation Office; does not have a driver’s licence in any Australian state or territory; has not been located by reference to unidentified bodies or human remains; is not registered as a nurse; is not enrolled as an elector; and is not registered with Centrelink. Despite extensive publicity and two coronial inquests, no person has come forward to offer reliable information about her whereabouts since 8 January 1982. As referred to above, the applicant accepts that it was open to the trial judge to find that the deceased was dead by the time of trial.

Character evidence

334. The applicant adduced evidence from character witnesses who did not accept that he would ever act in an aggressive or violent way and, in particular, did not accept that the person they knew as the applicant would kill his wife.

Other matters

335. The trial judge accepted the anecdotal evidence that the deceased did not have the financial resources to support herself and was generally short of cash ([297]). His Honour also found that the deceased did not contact her employer asking about any money she might have been owed as back pay ([300]).

336. The deceased was described as a “confident, decisive” woman ([261]), who was “intelligent” ([262]). The trial judge found at [262]:

“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.”

337. The deceased did not have any physical health conditions which may have explained her sudden departure ([282]).

338. The deceased’s belongings which the applicant delivered to Helena’s place included “a pair of gardening gloves with dirt still on them, … clothes, … [the deceased’s] nurse’s badges … that the nurses wore when they were on duty to show they had passed their exams or they were sisters [and] a small blue container with contact lenses in them”.

Consideration of ground 4(ii)

The limited challenge to JC’s evidence

339. Ms Rigg challenged the trial judge’s acceptance of the whole of JC’s evidence and submitted that his Honour ought not to have accepted JC’s evidence in so far as JC said that the applicant had told her not only that the deceased had gone (which Ms Rigg did not challenge) but also that she was not coming back. She submitted that the trial judge ought not to have accepted this evidence in circumstances where JC did not include the “not coming back” part of the statement when the police took her statement dated 17 May 1990. She also submitted that this Court, when reviewing the evidence for the purposes of the unreasonable verdict ground, ought not accept this evidence of JC.

340. Having reviewed all of the evidence I accept JC’s evidence that the applicant told her, when she called him from South West Rocks on either 9 or 10 January 1982 that the deceased had not only gone but also was not coming back. Almost all aspects of JC’s evidence were corroborated in important respects by other witnesses and documentary evidence (including the cards the applicant gave to her).

341. JC’s evidence of the applicant’s conduct towards her at Cromer High School was corroborated by the love notes he sent to her as well as by the evidence of RH and MC. The applicant thwarted RH’s attempt to ask her out and MC noted that, in years 11 and 12, JC no longer spent time with her friends at school because she spent lunch hours with the applicant in his office. The applicant’s design to separate her from male contemporaries or friends was also evidenced by PS’s evidence of the applicant’s intimidation of him in the Coles car park.

342. JC’s evidence that she and the applicant returned to Paul and Marilyn’s place on Christmas Day 1981, two days after they had set off for Queensland from that same location was corroborated by Marilyn’s evidence about their arrival and the applicant’s request of his brother that he and JC be permitted to sleep in Paul and Marilyn’s bed on Christmas Day.

343. The evidence of JC’s friends at South West Rocks also supported JC’s evidence that she went straight back to live with the applicant at the Bayview house. The applicant’s sense of entitlement to JC was evident from his announcement to her on the beach at South West Rocks, “we’re going”. That he stayed only about 15 minutes there, after having driven from Sydney, showed that he was intent on retrieving JC for the purpose of appropriating her. Had she intended to live with her mother on her return to Sydney, there would have been no need for him to come and collect her or for her to accompany him when he came since there were any number of people at South West Rocks with whom she could travel back to Sydney.

344. JC’s evidence that all of the deceased’s possessions appeared to be still in place when she moved into the Bayview house on about 11 January 1982 is corroborated by Greg’s evidence of what the applicant delivered to Helena’s house in large green plastic bags: Greg found the sales agreement in the pocket of her dressing gown; her contact lenses (without which she could barely see); and her gardening gloves which still had dirt on them.

345. Further, the evidence which established that JC was living at the Bayview house on her 18^th birthday, the wording of the applicant’s card to her and her unchallenged evidence that she was wearing the deceased’s clothes on her birthday, also corroborated her evidence that she had slept with the applicant in the matrimonial bed from the first night of their return from South West Rocks.

346. Ms Rigg also submitted that the trial judge did not find JC to be a credible witness in respect of her evidence concerning the applicant’s attempts to find a hitman to kill the deceased and that, accordingly, this Court ought not accept her evidence that he told JC that the deceased was not coming back. The trial judge did not accept the evidence of Mr Silkman (the alleged hitman), which left the evidence of JC on this topic uncorroborated. Because of the gravity of the allegation intrinsic in this evidence – that the applicant had investigated hiring a hitman to kill the deceased – the evidence required to satisfy the trial judge that he ought to make a finding to that effect was necessarily weightier. I do not regard the trial judge’s non-acceptance of JC’s evidence on this topic as affecting other aspects of her evidence.

347. Although, for the reasons given in respect of grounds 2 and 3 above, the trial judge erroneously took into account impermissible matters as evincing a consciousness of guilt, I am not persuaded that this error had any effect on the trial judge’s assessment of JC’s credibility. The lies referred to by his Honour related, in the main, to the deceased. To the extent to which the applicant’s lies related to JC, their falsity was exposed by other evidence and did not wholly depend on JC’s version. As referred to above, I consider that JC’s evidence (other than that rejected by the trial judge) ought be accepted: it was internally consistent, consistent with contemporaneous documents and supported by a wealth of evidence from Crown witnesses, which is referred to in detail in the factual narrative above.

The alleged hypothesis consistent with innocence

348. Ms Rigg submitted that the Crown could not exclude beyond reasonable doubt the hypothesis that the deceased had chosen to depart the scene, at least for a few days, on 9 January 1982 and that, accordingly, the Crown could not prove that the deceased was dead by lunchtime on that day. She contended that, in light of all that the deceased had gone through – the applicant’s conspicuous infidelity to her with JC and the humiliation this had caused her with her family, friends and work colleagues – the reasonable possibility that the deceased might take a break from an intolerable situation, either permanently or temporarily could not be excluded. Ms Rigg relied on the deceased’s heartbreak, given her erstwhile adoration of the applicant and belief that he would never do anything wrong (which had proved to be misplaced).

349. The viability of that hypothesis is to be assessed by reference to the deceased as the evidence showed her to be. A woman might choose to leave a family situation made untenable by a husband’s infidelity, either with a view to demonstrating to him the enormous consequences of his actions, in the hope of bringing him to his senses and returning him to the family fold, or permanently due to irretrievable breakdown of the relationship. However, the question is whether it is reasonably possible that the deceased, on late 8 January or early 9 January 1982, did so. Although people may behave atypically in situations of stress, I do not discern any indication in the evidence that the deceased would not, as at 8 January 1982, have continued to conduct herself as she had done in the past with a clear resolution to care for her children and protect and maintain her marriage to the applicant which his obsession with JC had placed in jeopardy.

350. The applicant had already, in a real sense, done his worst: by purporting to leave permanently with JC on 23 December 1981. By this act, the applicant had forced the deceased to face the future as a single mother who had been abandoned by her husband. That the applicant had called on Christmas morning to say that he would be home the next day would not necessarily have lessened the shock, although it gave the deceased considerable hope of reconciliation (which she imparted immediately to her mother and later that day to Paul at the Dawson Christmas lunch). The deceased responded quickly and practically to arrange a marriage guidance counselling session to take place on 8 January 1982.

351. The deceased was in regular contact with her mother, by phone and in person, and had, since at least October 1981, chosen to take the children, including overnight, to her mother’s place, as well as her in-law’s home in Maroubra and place in Nowra, leaving the applicant at the Bayview house. Indeed, the deceased’s trips with the children led Marilyn to counsel her not to leave the applicant “unsupervised” in the Bayview house, in circumstances where it could be expected that he would take advantage of her absence to continue his sexual relationship with JC. JC’s evidence that the applicant had sex with her in his car, in the Bayview house and in Paul’s house was not seriously, much less successfully, challenged. While the deceased was generally apart from the children when she worked (three days a week at Warriewood Children’s Centre) and for particular commitments, she was otherwise so constantly in their company that Mr Downie, the next door neighbour in Bayview, was surprised to see her without them on the occasion when she came to the laundry door to see if Ms Andrew was home.

352. In light of all of this evidence, no credence can be given to the applicant’s version that the deceased rang him at the Northbridge Baths. The alleged Northbridge Baths phone call was relevantly uncorroborated since, even if there was in fact a call, it was only on the applicant’s say-so that the caller was the deceased. At that time, it was not reasonably possible that the deceased would leave the applicant, much less her two children, even for a few days. The suggestion that she would not contact her mother about a matter of such great importance (since she was the person to whom she had frequently resorted for child care arrangements in the past) is no more than fanciful. Further, the deceased was rostered to work on 11 January 1982 in a job she was good at and which she valued. It gave her a modicum of financial independence as well as social and professional contact with peers, some of whom became her friends and confidants.

353. The applicant had shown himself to be entirely without credibility, both by reference to direct lies and half-truths, of which there is a litany in the evidence and his versions. For example, he rang the deceased on Christmas morning to tell her that he would be coming “home” tomorrow when he was probably already at Paul and Marilyn’s place, intending to skip the Dawson family Christmas lunch and spend the day with JC in Paul and Marilyn’s bed. He specifically directed them not to disclose this fact to his parents or anyone else when they visited Maroubra for Christmas lunch.

354. The applicant told the deceased that he could not spend New Year’s Eve with her and the children because he was going on a yachting party, when in fact he went to Manly Point to spend time with JC in his car. When the deceased asked if she and the children could watch the boat from the shore, he said, “no”. On his return home on New Year’s Day, he told the deceased that he had been “sea sick all night” (presumably to add verisimilitude to his false claim that he had been sailing). The applicant’s parents drove the deceased and the two children to Helena’s place at Clovelly “for a few days”. By that stage, the applicant was terrified of losing JC who was about to set off for South West Rocks.

355. The applicant had told the Missing Persons Unit that he had gone up north “by himself” when he and JC had left together on 23 December 1981 to start their new life and referred to there being marital problems as a result of the deceased’s spending. His statement that he went north alone was a lie. His omission of any reference to JC as a reason for the “marital problems” (which he attributed to the deceased’s spending) was, on any view, dishonest. Further, the applicant fabricated the alleged statement from Ian Kennedy at the school reunion to suggest that the deceased might be living in New Zealand when Mr Kennedy told him no such thing.

356. There were also various inconsistencies revealed by a comparison between the ERISP and the other evidence. The applicant told the police that the deceased was “disturbed by the results of [the marriage counselling]” when the evidence of Ms Strath and her other colleagues at the Warriewood Children’s Centre was to the contrary. He mentioned that he had gone away “to try to clarify how [he] felt”, which was a glaring non-disclosure of his obsession with JC. He also referred to a man associated with a “religious sect” who had come to do work on a shed. There was no evidence whatsoever of this aside from the applicant’s word: had this been true, it could confidently be expected that the deceased would have mentioned it to her mother.

357. Ms Warren gave evidence that the applicant called her on 9 January 1982 before he had arrived at the Northbridge Baths to see whether the deceased was with her. What the applicant told Ms Warren was inconsistent with what he told police in the ERISP at A10 that he was expecting the deceased to come to the Northbridge Baths with her mother and that when her mother arrived without her, he wondered where the deceased was (who subsequently called the Baths to tell him that she was on the Central Coast). On the version in the ERISP, there was no reason for the applicant to be concerned or make enquiries about the deceased’s whereabouts before Helena arrived at the Northbridge Baths without the deceased.

358. I accept the Crown’s submission that the alleged call from the deceased was a contrivance by the applicant to explain the deceased’s absence and to achieve the outcome that Mr Day would drive Helena and the children back to Clovelly so that she could look after them that night.

359. The applicant’s statements to Helena Simms (which, in light of the evidence, must have been lies) about the deceased having called were the cruellest because they engendered false hope. He told her on Sunday 10 January 1982 that he had spoken to the deceased who had said that she would call her mother on Wednesday. Ms Simms noted in her diary on Wednesday 13 January 1982 that the deceased had not called.

360. The applicant’s statement to Ms Hardiman, “She's gone away and doesn't want them anymore” reflected the applicant’s certainty that the deceased was not coming back and would not want the portraits she commissioned of her dearly beloved children. He could only say this with such certainty because he had killed her. It also indicated that he did not want to engage in any discussion about the deceased.

361. Following the deceased’s alleged disappearance, the applicant’s non-disclosure of his continuing relationship with JC and the fact of their cohabitation was also dishonest. It would appear from Helena’s diaries that she only found out on 6 February 1982 that JC was living at the Bayview house when XD told Helena that JC was there. When Paul and Marilyn returned with their children from their break at Lake Munmorah, the applicant and JC greeted them at the front door of the Bayview house but did not, apparently, invite them in, as to do so would have disclosed their cohabitation shortly after the deceased’s disappearance. While the applicant may have been able to rely on his brother, Paul, to side with him, he may have feared that Marilyn would be less sympathetic.

362. None of these lies can be used as implied admissions since the Crown, on appeal, did not rely on them as such. However, they indicate the unreliability of the applicant’s versions. The Crown, through the evidence narrated above and for the reasons given below, has excluded beyond reasonable doubt the reasonable possibility that the applicant’s version that the deceased rang him at the Northbridge Baths on 9 January 1982.

363. From about the time the applicant identified JC, he became obsessed with her and wanted to possess and control her at all costs. At the outset, his obsession was satisfied by having sexual intercourse with her at his parents’ house at Maroubra and in his car on Friday nights at Manly Point, while fending off his school boy rivals by threatening PS and obstructing RH who had come to him for assistance.

364. By October 1981, the applicant’s ambitions had grown to a point where he installed JC in the Bayview house as the “babysitter” and drugged his wife with alcohol so that he could have sex with JC under the matrimonial roof. This arrangement was thwarted when the deceased’s parents observed JC with him in the Mona Vale Hospital on 5 November 1981 and were driven to the inevitable conclusion that they were sexually intimate. That night, JC, having been confronted with the truth by the deceased (albeit that the deceased had put it the wrong way around when she accused JC of taking liberties with the applicant), JC moved out, resorting to Paul and Marilyn’s home where she was permitted to remain until she had finished the HSC.

365. By 23 December 1981, JC’s tenure at Paul and Marilyn’s can be taken to have expired. Such was the applicant’s desperation to make JC his that he was prepared to leave the deceased, his children and the Bayview house and separate himself geographically from his brother Paul (to whom he was very close) and drive to Queensland to start a new life with JC. When that did not work out because of JC’s immediate homesickness and physical reaction to leaving her family, the circumstances forced him to return, once again imposing on Paul and Marilyn by occupying their bed on Christmas Day, putting them in the awkward position of having to spend the day with the Dawson family, pretending that the applicant and JC were not where they knew them to be.

366. The ultimate blow was struck on Boxing Day when JC told the applicant that she wanted to end the relationship and went to stay with one of her sisters at Neutral Bay. Her decision made it plain to the applicant that what he was in a position to offer her at that time – continued sexual intimacy with a married man who was living with his wife and two children – was, despite her vulnerability and need for support, unacceptable. The applicant did not give up. In the week or so before her departure for South West Rocks, the applicant maintained the pressure on JC by phoning and visiting her every day.

367. In early January 1982, JC went to South West Rocks to stay in a caravan owned by her father. This gave her the opportunity to spend time with two of her sisters and several friends who were her contemporaries. Her departure rendered the applicant’s position particularly precarious and put him at grave risk of losing her. There was a real prospect that, in that environment, JC would be able to arrange for somewhere to live in Sydney (which did not involve the applicant); enrol in a course which would take her away from the Bayview area and put her into a new cohort; or form an attachment to a male who was, unlike the applicant, around her age and not married with children. Any one of these possibilities could have put JC well beyond the applicant’s reach and influence. The applicant’s hold over JC when she was at South West Rocks depended on her compliance with his instruction that she call him daily: his capacity to control her actions and interactions and quarantine her from her male contemporaries was significantly less than it had been when he intimidated PS in the Coles carpark or intervened to prevent RH asking her out.

368. Apart from the few days from Boxing Day 1981 until her departure for South West Rocks in the new year which JC had spent with her sister at Neutral Bay, JC’s accommodation had been, since October 1981 when she moved into the Bayview house, dependent on, and effectively controlled by, the applicant. Having been evicted from the Bayview house by the deceased in early November 1981, JC would not have returned while the deceased was still living there. She did not feel that she could go back to her mother’s house because of her step-father. At the age of 17, she was homeless and without means of support, as the applicant well knew.

369. The only way the applicant could offer JC a roof over her head and apparently permanent security was to remove the deceased from his life. As the deceased was intent on staying with him and the children, and retaining close connections with his side of the family (no matter how badly he treated her), killing the deceased on 8 January 1982 or early on 9 January 1982 was the only way in which the applicant could get what he wanted before JC made other arrangements for her adult life and it was too late.

370. When JC phoned him from South West Rocks on 9 or 10 January 1982, he made the best offer of which he was capable, which was designed to apply the maximum pressure on JC to take him back: he asked her to come and live with him and help him care for his children because the deceased had gone and was not coming back, and promised to drive to South West Rocks to collect her. He knew that the deceased was not coming back because he had seen to it by killing her.

371. When the applicant arrived at South West Rocks to retrieve JC, her quandary which manifested itself in her posture (which was hunched up, as if her body had collapsed) was obvious to her friends, who pleaded with her not to go. Her feeling of obligation and the sense that she had no choice make plain her emotional vulnerability and financial predicament. The hold which the applicant had over her defeated her ultimately fruitless attempts to distance herself from him. His offer entailed an apparent guarantee of security: if the deceased had gone and was not coming back, JC would, at last, have a home with someone whom she had been led to believe loved her and would look after her.

372. What the applicant told JC in order to induce her to live in the Bayview house – that the deceased was not coming back – was true. Because he had killed the deceased, he knew that she was not coming back and that therefore there was no risk associated with installing JC in the main bedroom and inviting her to wear the deceased’s clothes and jewellery. Thus, on their return to Sydney, there was, as the applicant perceived it, no impediment to JC sleeping in the matrimonial bed, which is what occurred from the first night. Although JC had been told that the deceased was not coming back, she soon longed for the deceased to return so that she would be relieved of the responsibility of looking after XD and YD.

373. The situation which the applicant had represented to JC stood in stark contrast to the lies he told and was telling the deceased’s mother, Mr Day, Ms Warren and the staff at the Missing Persons Unit – that the deceased wanted some time alone, that she had called and would call and that she was sorting herself out. The juxtaposition between what he told JC and what he told everyone else demonstrated, in light of all of the other evidence, including the lack of corroboration of his statements, that his statements about being contacted by the deceased were lies which could not reasonably possibly be true. That the deceased’s family and friends believed his lies for so long is testament not only to the applicant’s capacity for duplicity but also to their forlorn and misplaced hope that the deceased was alive and would return.

374. Indeed, it was only when JC spoke with Greg Simms and learned of the difference between what the applicant had told her and what he had told the deceased’s family and the police, that JC felt obliged to go to the police. It would appear, having regard to the lengthy delay before the applicant was charged with murder that the investigating police did not necessarily appreciate the import and veracity of her statement. However, this Court is to determine the grounds by reference to all of the evidence adduced at trial which, as I have said above, constituted an overwhelming circumstantial case.

375. I have considered the character evidence adduced in respect of the applicant. On the findings of the trial judge, there was no evidence that the applicant had ever inflicted violence on anyone (apart from when he was playing rugby league and rugby union, each of which is inherently physically combative). However, the evidence of PS established that he had threatened PS with violence to deter him from asking JC out and Ms Andrew’s evidence of the trampoline incident established that he had acted in an overbearing and intimidating way towards the deceased.

376. Having reviewed all of the evidence, I am not persuaded that the verdict of guilty of murder was unreasonable. None of the arguments advanced on behalf of the applicant by Ms Rigg causes me to doubt the applicant’s guilt of murder. Ground 4(ii) has not been made out.

Grounds 4(i) and 5(i) and (ii)

377. These grounds can be addressed together. Grounds 5(i) and (ii) were added in order to permit Ms Rigg to submit that the trial judge’s alleged erroneous findings amounted to a miscarriage of justice (as alleged in grounds 5(i) and (ii)) as well as an unreasonable verdict (as alleged in ground 4(i)). She relied on EE v R [2023] NSWCCA 188 (EE) in which this Court (Beech-Jones CJ at CL, myself and Ierace J agreeing) said at [41] that if, in a trial by judge alone, the trial judge used illogical or clearly mistaken reasoning to decide an important question of fact, that could amount to a miscarriage of justice that would result in a retrial.

378. At the outset it is important to confirm that Ms Rigg accepted that although the trial judge categorised the Crown’s obligation to negative the applicant’s version that the deceased had phoned the applicant at the Northbridge Baths on 9 January 1982 as an “indispensable intermediate fact”, this was not necessarily a correct characterisation. It was common ground that, in order to prove the applicant’s guilt of the charge of murder beyond reasonable doubt, the Crown had to prove beyond reasonable doubt that the deceased had not phoned the applicant on the afternoon of 9 January 1982 (since if she had she must have been alive). It is therefore unnecessary for present purposes to address Shepherd v The Queen (1990) 170 CLR 573 at 579-580; [1990] HCA 56, the leading case on what will constitute an indispensable intermediate fact.

379. Accordingly, grounds 4(i) and 5(i) and (ii) turn on whether the trial judge’s reasons for finding that the Northbridge Baths phone call was excluded beyond reasonable doubt revealed illogical or clearly mistaken reasoning which amounted to a miscarriage of justice.

380. Ms Rigg relied on the structure of the verdict judgment to make out her submission. She submitted that the verdict judgment was, essentially, divided into two parts: the first part being from [1]-[330] and the second part being the balance. Ms Rigg pointed to the heading, “WAS LYNETTE DAWSON ALIVE AFTER 8 JANUARY 1982”, above [18] of the verdict judgment. In that section the trial judge identified the three categories of evidence which, if accepted, would prove that the deceased was alive after that time:

1. the Northbridge Baths phone call;

2. the bankcard purchases in January 1982; and

3. the alleged sightings of the deceased.

381. The trial judge then proceeded to address the evidence in each of these categories (as indicated by the headings in the verdict judgment set out above).

382. Under the heading, “Northbridge Baths”, the trial judge referred to the applicant’s versions in the Antecedent Report ([24]) and the ERISP ([23] and [35]); Mr Day’s statement and his evidence in the inquest about what the applicant had said to him about the call on 9 January 1982 ([25]-[26]); Helena Simms letter dated 21 August 1982 to the Missing Persons Unit ([27]); and the evidence of CB and JM about their work at the Northbridge Baths ([28]-[34]).

383. The trial judge said at [36]:

“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.”

(Emphasis in bold added.)

384. Ms Rigg submitted that the prefatory words, “Having regard to this evidence” at the beginning of [36], circumscribed the evidence to which the trial judge had regard when excluding the Northbridge Baths phone call as a reasonable hypothesis and that this evidence was manifestly insufficient to justify that finding. She submitted that the trial judge had “come to a conclusion of fact on a pivotal issue on an inadequate factual basis”. Accordingly, she submitted that the trial judge’s error caused a miscarriage of justice.

385. Ms Rigg’s submission has a superficial attraction. It is plain that the evidence recited from [23]-[35] was manifestly insufficient to disprove the Northbridge Baths phone call beyond reasonable doubt; and therefore manifestly insufficient to prove the applicant’s guilt of the offence charged since it did not exclude the reasonable hypothesis that the deceased was still alive on the afternoon of 9 January 1982. However, the verdict judgment is to be read fairly and as a whole: Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70 at [54] (Basten JA, McColl and Simpson JJA agreeing), citing, at fn 25, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456. The trial judge emphasised on several occasions throughout the verdict the need to consider the evidence as a whole.

386. For example, at [13], the trial judge referred to the Crown’s obligation to exclude beyond reasonable doubt the reasonable possibility that the deceased was alive after 8 January 1982, which his Honour said would be addressed first. His Honour then said, at [14]:

“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.”

(Emphasis added.)

387. Further, in [36] itself, his Honour said that he was satisfied that the applicant’s statement about the Northbridge Baths phone call was a lie and concluded the paragraph by saying, “My reasons for forming that view are as follows.” This last sentence comprehends the whole of the rest of the decision. In my view, it is sufficiently apparent from the trial judge’s reasons that his Honour took into account the whole of the evidence in his determination that the Crown had excluded the Northbridge Baths phone call.

388. Indeed, in [37]-[41], which is still under “The Northbridge Baths” heading, the trial judge addresses further aspects of the Northbridge Baths phone call. The reasons under this heading concluded at [41] where his Honour said:

“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.”

389. The reference to the trial judge’s intention to reconsider that evidence “in light of all the other circumstantial evidence in the case” is a further indication that, at all times, the trial judge was conscious of the need to consider the evidence as a whole before coming to a view about whether a reasonable hypothesis consistent with innocence (such as that the deceased made the Northbridge Baths phone call) had been excluded beyond reasonable doubt.

390. At [42]-[63] under the heading, “Later telephone calls”, the trial judge addressed the applicant’s versions of receiving phone calls from the deceased after 9 January 1982. His Honour concluded that section by saying at [63]:

“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.”

(Emphasis added.)

391. I reject Ms Rigg’s submission that the word “reinforced” in this paragraph indicated that the trial judge had already found that there had been no calls after 8 January 1982 because I consider that the reference to “other circumstantial evidence” is sufficient to indicate that his Honour considered all the evidence as a whole before making that finding.

392. At [64]-[75], under the heading, “The bankcard references”, the trial judge collated the evidence regarding the alleged bankcard transactions which post-dated the deceased’s disappearance. This section concluded as follows:

“74    … 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…

75   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.”

393. The trial judge addressed the evidence of sightings at [76]-[144], under a heading to that effect. His Honour recounted the evidence that Ms Butlin had seen the deceased at [77]-[85] and said, at [86]:

“In my view, this conundrum [whether Ms Butlin saw the deceased or whether she was mistaken] is best resolved by reference to other circumstantial evidence touching the likelihood or otherwise that Lynette Dawson was alive after 8 January 1982.”

394. Under the heading, “Conclusion”, which is followed by [145]-[147], it is plain that the trial judge appreciated the need to regard the evidence as a whole when arriving at the verdict. For example, his Honour said:

“146   … 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.

147   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.”

395. Latitude is to be given to a trial judge in a trial by judge alone in the way in which the verdict judgment is to be expressed. Some judges might choose to proceed chronologically, as I have done when considering ground 4(ii), in the hope that a sequential narrative will do justice to the whole of the evidence adduced in a circumstantial case and make it easier for the reader to follow. However, as was open to his Honour, the trial judge decided to approach the matter another way by beginning with the Northbridge Baths phone call.

396. The process of deliberation begins once all of the evidence has been adduced and the addresses have been concluded. It requires all of the evidence to be taken into account in an assessment of whether the Crown has proved its case beyond reasonable doubt. However, a verdict judgment can only proceed word by word and sentence by sentence. The reasons explain the reasoning process but are not required to simulate such processes.

397. Having considered the verdict judgment, I am not persuaded that the trial judge erred in rejecting a reasonable hypothesis available to the applicant. I am satisfied that, in rejecting the Northbridge Baths phone call and the other evidence relied on by the applicant as indicating that the deceased might be alive after the evening of 8 January 1982 or the morning of 9 January 1982, the trial judge had regard to the whole of the evidence, as sufficiently indicated by his Honour’s reasons.

398. For the reasons given above, grounds 4(i) and 5 have not been made out.

The application of the proviso

399. Grounds 2 and 3 have been made out. As the Crown relies on the proviso in s 6(1) of the Criminal Appeal Act, it is necessary for this Court to determine whether the trial judge’s errors as alleged are made out regarding the use of lies as evincing a consciousness of guilt gave rise to a substantial miscarriage of justice.

400. Prior to the enactment of the proviso, the so-called “Exchequer rule” required that there be a new trial in respect of every departure from a trial according to law. The purpose of the proviso was to obviate the requirement for a new trial in cases where the appellate court is satisfied that there is no substantial miscarriage of justice: Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7 (Kalbasi) at [13] (Kiefel CJ, Bell, Keane and Gordon JJ).

401. The principles which apply to the application of the proviso include the following. First, the Crown must indicate to the Court whether it relies on the proviso in respect of a particular ground of appeal against conviction. Second, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (Weiss) at [39] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). Third, this task is objective and is to be performed by the appellate court on the basis of the record of the trial: Weiss at [39]. Fourth, a necessary, but not sufficient, condition for the operation of the proviso is that this Court is satisfied that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty: Weiss at [44]. Fifth, the appellate court is to consider the nature and effect of the error in every case: Weiss at [44]. Sixth, there is “[n]o single universally applicable description of what constitutes ‘no substantial miscarriage of justice’” (emphasis in original): Weiss at [44].

402. The High Court in Kalbasi described the approach to be taken by this Court as follows at [12]:

“… The determination of whether, notwithstanding the error, there has been no substantial miscarriage of justice is committed to the appellate court. The appellate court’s assessment does not turn on its estimate of the verdict that a hypothetical jury, whether ‘this jury’ or a ‘reasonable jury’, might have returned had the error not occurred. The concepts of a ‘lost chance of acquittal’ and its converse the ‘inevitability of conviction’ do not serve as tests because the appellate court is not predicting the outcome of a hypothetical error-free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had.”

(Footnotes omitted and emphasis added.)

403. The proviso has been applied when the error is the wrongful admission of evidence: Wilde v R (1988) 164 CLR 365 at 373; [1988] HCA 6; Kalbasi and Pratten v R [2021] NSWCCA 251.

404. In Pratten, the error was the wrongful admission of opinion evidence. Gleeson JA (Johnson and Beech-Jones JJ agreeing) said:

“320   There is no disadvantage in this Court deciding the appeal on the record of the trial, excluding the evidence wrongfully admitted. The error in admitting the opinion evidence of Mr Barns was not of a kind that could prevent this Court from having the capacity to assess whether the offences with which Mr Pratten was charged were proved beyond reasonable doubt: Kalbasi at [17].

321   The strength of the Crown case was manifest. Having considered the evidence, I am satisfied that the evidence, properly admitted at trial, proved beyond reasonable doubt Mr Pratten’s guilt of the offences on which the jury returned its verdicts of guilty. The possibility has been excluded beyond reasonable doubt that Mr Pratten has been denied a chance of acquittal which was fairly open to him. I consider that there has been no substantial miscarriage of justice. Accordingly, the proviso applies.”

405. By contrast, in Firbank v R [2011] NSWCCA 171; (2011) 223 A Crim R 301 where the jury was given a transcript of the cross-examination of the appellant by the prosecutor which contained errors as to his responses, this Court regarded the error as of such significance in the trial as to make it unfair to the appellant “[i]rrespective of the strength of the Crown case”: [85] (McClelland CJ at CL, Hidden and Johnson JJ agreeing) (see also Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217).

406. Whether there has been a substantial miscarriage of justice cannot be determined by reference to generalisations or categories and must depend on the facts, circumstances and error established in the particular case. Although it is necessary, before considering the proviso, for this Court to be satisfied that it was open to the tribunal of fact to find the applicant guilty of the offence charged (as I am, given my rejection of ground 4(ii), the unreasonable verdict ground), this does not determine whether the proviso ought be applied.

407. Ms Rigg submitted that, in considering the application of the proviso, the concessions she made in relation to some of the trial judge’s factual findings for the purposes of ground 4(ii) did not apply and that she “reserved her position” for the purposes of the proviso. I understood her to submit that this Court would need to consider the evidence for itself and in particular the evidence of JC, together with all the circumstances of the trial and decide whether it would be open to a tribunal of fact to reject that evidence or parts of that evidence, such that there is a real possibility that the applicant has been deprived of a chance of acquittal that was fairly open to him.

408. Ms Rigg submitted that as there had been a denial of procedural fairness in the way in which the trial judge dealt with Edwards and Zoneff lies (including because his Honour had not confined himself to COG (1)-(5) when considering which of the lies relied on by the Crown as Edwards lies actually met the Edwards conditions), the applicant was entitled to a new trial. She submitted that the applicant was entitled to have the credibility of JC assessed by a tribunal of fact whose decision-making capacity had not been compromised by error.

409. The body of evidence available to this Court (which excludes that evidence which the trial judge did not accept) for the purposes of deciding whether to apply the proviso has been addressed above. I have reviewed that evidence for the purposes of determining whether to apply the proviso, having regard to the principles set out above and the approach endorsed in Kalbasi.

410. I consider that the strength of the Crown case, based on the eleven pillars identified at the outset, is such as to exclude beyond reasonable doubt the hypothesis that the deceased left her husband, children, family, home and friends (which I regard as no more than fanciful) and prove the guilt of the applicant for her murder on 8 January 1982 or early 9 January 1982.

411. The applicant’s statements (many of which were exposed as lies, as set out above) were superfluous to the Crown case, as was demonstrated by the fact that they were not relied upon at trial in opening address. With one exception, they related to the deceased after 8 January 1982: her alleged intentions (to have a break from him); where she might be at a given time (Katies, Just Jeans, the Central Coast, the Blue Mountains or New Zealand); and what she might be doing (being part of a religious cult; shopping at Warriewood Square or a fruit barn on the Pacific Highway). The exception was the applicant’s statement to police that he had travelled north by himself before Christmas. This statement was shown to be false by a wealth of evidence, including the photograph he took of JC on 23 December 1981 before their departure for Queensland, JC’s evidence, Marilyn and Paul’s evidence and the wording of the note he had left for the deceased (the contents of which she imparted to her mother and brother). The applicant did not challenge this evidence at trial.

412. The Crown’s evidence proved beyond reasonable doubt that the applicant killed the deceased either late on 8 January 1982 or early on 9 January 1982 to make way for JC to move straight into the Bayview house as his life partner as soon as the applicant retrieved her from South West Rocks, as the evidence established occurred. Had the applicant said nothing at any time to anyone, including the deceased’s family and the police, the circumstantial case against him would not have been weaker in any real sense.

413. For these reasons, I am satisfied that the proviso applies in the present case. I consider that no substantial miscarriage of justice has actually occurred as a result of the errors established in grounds 2 and 3 and that the appeal ought be dismissed.

Proposed orders

414. For the reasons given above, I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

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Amendments

24 June 2024 - "21" replaced by "almost 12" - [262]

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Decision last updated: 24 June 2024