Accused in Charges for Murder Seeks Judge Alone Trial

R v Dawson [2022] NSWSC 552 (9 May 2022)

The parties are in dispute over an application for a judge alone trial where the accused was charged with murder.  The accused seeks an order for a judge alone trial upon refusal by the High Court of the accused’s last opportunity to obtain a stay.  The Court, in determining whether the application should be granted, assessed the "Teacher's Pet" podcast and the participation of public officials therein.

Facts:

On 3 April 2020 the accused, Christopher Michael Dawson, was arraigned in this Court on a charge that on or about 8 January 1982 he murdered Lynette Joy Dawson.  He pleaded not guilty.  Mr Dawson’s trial is currently listed to commence on 9 May 2022.  On 14 April 2022, he signed an election pursuant to s 132(1) of the Criminal Procedure Act 1986 (“CPA”) for trial by a judge sitting without a jury.

On the same day, he filed a notice of motion seeking that order.  The accused contends that it is in the interests of justice to order a trial by judge alone because of a combination of egregious prejudicial pre‑trial publicity, specifically that associated with the “Teacher’s Pet” podcast (the “Podcast”), the delay in the charging of the accused, an alleged defective police investigation and police misconduct, concerns about the assessment of the accused’s credibility arising out the pre‑trial publicity, the subjective views of the accused as to likely fairness of a trial before a jury, and the anticipated length of the trial.  The Crown contends that the accused murdered his then wife, Lynette Dawson, sometime shortly after she was seen leaving a childcare centre at Warriewood on the afternoon of Friday 8 January 1982.  Ms Dawson’s body has not been found and no human remains matching her have been located in the unidentified remains indexes of any Australian State or Territory.

The Teacher’s Pet Podcast was broadcast or published in sixteen episodes and one “Special Update Episode”.  Successive episodes were available to be downloaded from various online platforms between 18 May 2018 and 5 April 2019, including Apple Podcasts, Google Podcasts, Spotify and The Australian website, free of charge, as they became available.  This period coincided with the DPP’s consideration of charging the accused and his arrest.  The entire Podcast was available to be downloaded, also without charge, from Apple Podcasts, Google Podcasts, Spotify and The Australian website.  The Podcast contains a discussion of the accused’s guilt with several persons, some of whom are to be called as witnesses in the Crown case and some who are not.

Issue:

Whether or not “interests of justice” warrant an order for a judge alone trial. 

Applicable law:

Jury Act 1977 - pursuant to which the stay was refused principally because of the capacity to take various measures on the empanelment of the jury to address the prejudice that was accepted could arise including the giving of directions and exempting jurors for cause.

Arthurs v State of Western Australia [2007] WASC 182 - provides that there are of course many cases dealing with the extent to which prejudice that might be occasioned by pre-trial publicity can be ameliorated by an appropriate warning and direction to the jury, and it is standard practice in Western Australia to direct juries that they should not make any access to the Internet to conduct any of their own inquiries in relation to any aspect of the case before them. 

BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 - provides that the phrase “interests of justice” envisages a broad assessment of a variety of matters, some concerning the interests of the parties to the litigation, but also “interests wider than those of either party”.

Dawson v R [2021] NSWCCA 117 - where the Court of Criminal Appeal granted him leave to appeal but dismissed the appeal.

Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 - provides that a “permanent stay will only be ordered in an extreme case and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”.

Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28 - pursuant to which the Crown pointed to a further measure namely the potential to question jurors about their knowledge of the pretrial publicity and its effect as part of the trial of a challenge for cause.

R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 - where McClellan CJ at CL held that s 131 does not create a presumption that the trial should be with a jury which an accused person must discharge.

R v Dawson [2020] NSWSC 1221 - where Fullerton J dismissed that application although her Honour ordered that the trial not commence prior to 1 June 2021.

R v Simmons; R v Moore (No 4) [2015] NSWSC 259 - relied upon in holding that there is no basis for contending that this application was an instance of “judge shopping”. 

R v Villalon [2013] NSWSC 1516 - provides that the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice, is not sufficient to make such an order as it is contrary to the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict.

The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 - provides that a “permanent stay will only be ordered in an extreme case and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”

TVM v State of Western Australia [2007] WASC 299 - provides that there is a “public interest in the administration of justice [being] carried out in public and in serious cases by the representatives of the public sitting as jurors”. 

Analysis:

The accused unsuccessfully applied for a permanent stay of the proceedings.  The basis for his application was very similar to his application for a trial by a judge alone, including the effect of “egregious” pre‑trial publicity, the substantial delay in the bringing of the charges, as well as an alleged defective police investigation and police misconduct. The capacity to take various measures on the empanelment of the jury to address the prejudice that was accepted could arise including the giving of directions and exempting jurors for cause.  Contained in the podcast is the expression of opinions on the accused’s guilt by three former public officials with important roles in the criminal justice system and who were not part of any of the police investigative teams.  The broadcast statements by senior public officials which endorsed the object of the Podcast raises problems for the conduct of a fair trial for the accused before a jury.

A juror could reasonably assume that they all possessed particular expertise in the assessment of the guilt or innocence of accused persons or suspects even though, in the context of the accused’s trial, their opinions are completely irrelevant. This case involves the extensive publication of material which was specifically directed to persuading the listener of the accused’s guilt of the crime for which he is to now face trial.  Some and perhaps much of the prejudice occasioned by the Podcast can be mitigated by the various measures noted by Fullerton J and the Crown Prosecutor. However, it cannot be eliminated.  

As the content of the Podcast is so pernicious in terms of prejudice, and as it was so widely distributed, the risk that the prejudice cannot be eliminated is difficult to quantify and, if it materialised in the jury, a fair trial would be seriously imperilled.  The capacity to take various measures on the empanelment of the jury to address the prejudice that was accepted could arise including the giving of directions and exempting jurors for cause.

Conclusion:

The various factors that inform an assessment of whether the “interests of justice” warrant the making of an order for trial by Judge alone.  The Court granted the application for a Judge alone trial. “interests of justice” warrant such an order.  The trial of the accused before a jury should not be stayed.