Could reform help secure safer convictions in circumstantial cases?

Andrew L. Urban. 

The most recent – and highest profile – murder conviction based on circumstantial evidence was that of Christopher Dawson, for the murder 40 years ago of his then wife Lynette. The conviction, in a judgement delivered August 30, 2022, by Harrison J, raises questions about the way circumstantial cases of serious crime are tried. Is there a safer way? We propose one …

The Crown’s cases against Robert Xie for the 2009 murders of five members of his wife’s close relatives, Sue Neill-Fraser for the murder of her long-term partner Bob Chappell in 2009, Henry Keogh for the murder of his fiancée in 1992 and the ongoing scandal of Kathleen Folbigg’s 2003 convictions for the murder of her three infant children – are other examples of convictions based on circumstantial evidence. We regard all these as wrongful convictions, although Neill-Fraser and Folbigg are legally still guilty. We regard Chris Dawson’s conviction as unsafe, not claiming his innocence but questioning the security of the conviction. More on that in a moment. As in the case of Neill-Fraser, neither the body of the victim nor a murder weapon have ever been found.

The severity of the incarceration penalties for murder (ranging from 23 years to life) and the importance of thoroughly reliable convictions both for the accused, their families and for public confidence, demands it. The golden rules of our legal system are built on two crucial pillars: the assumption of innocence and the requirement for guilt to be proven beyond reasonable doubt. Additionally, in circumstantial cases such as these, the rules require that the Crown must exclude any reasonable hypothesis consistent with innocence of the accused.

Dawson’s trial was heard by Harrison J alone. The others were all jury trials. Our criminal justice system requires judges to publish their reasons for decisions, while (perversely) forbidding juries to do so. That is why the Dawson case affords us the opportunity to analyse the reasoning behind this decision – and to argue for reforms in the way circumstantial cases are heard.

While this analysis of the Harris J judgement is not exhaustive, it is meant to highlight the inherent dangers presented by cases where there is no direct evidence. (As we have seen in some of the other cases, the prosecution is able to present the circumstantial evidence in the most damning way. Although this is strictly speaking against the rules, it is unavoidable; in our adversarial system, the prosecution seeks a conviction, not necessarily the truth, lip service notwithstanding.)

The following is a brief (and necessarily simplistic) analysis of parts of the judgement, along with our observations that lead us to question the safety of the conviction; paragraph numbers refer to the judgement transcript; emphasis added.

PAR 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.

The time of death issue is equally applicable in both the cases of Robert Xie and Sue Neill-Fraser. In both those cases, the Crown’s case fails to provide such a link in its chain of reasoning.

PAR 15
There is a wealth of evidence dealing with the events of Friday 8 January 1982. Part of that evidence demonstrates that Mr Dawson and Lynette Dawson attended marriage guidance counselling and that they returned to her workplace together holding hands and in good spirits. Evidence of events later in the evening suggests that Lynette Dawson was still in good spirits when she spoke to her mother by phone for the last time. The Crown relies upon this as evidence in support of an inference that Lynette Dawson was unlikely to have left the marriage voluntarily the following day because of matrimonial difficulties.

By the same token, it can be argued that it was equally ‘unlikely’ that Chris Dawson murdered her, given the positive mood. Neither scenario is established as fact, nor disproved.

PARS  55 – 57 & 59, 60
Example 1: “I do not accept that Lynette Dawson, a woman allegedly determined to abandon her home and family and to disappear from sight and all that she had would at one and the same time continue to remain in contact with the very person who was on this analysis the reason for her departure. The contention that Lynette Dawson, a woman supposedly desperate to leave a relationship, would be inclined to provide telephonic updates concerning the status of her decision to leave is simply absurd: it defies common sense.”

Example 2: “It is in my view fanciful to suggest that conversations as lacking in content and pregnant with cliché as those described by Mr Dawson ever occurred.”

Example 3: “Mr Dawson never describes a telephone call from Lynette Dawson in which her decision never to return is communicated to him. Once again, it seems remarkable that a woman who was troubled enough to call to justify her continuing absence did not feel the need to inform her husband when her final decision had been reached.”

Harrison J falls into the trap of assuming how Lynette SHOULD have behaved if the phone calls were real, based on his own generalisations about human behaviour in the context of a breaking marriage. We might even share his assumptions, but they remain biased assumptions about behaviour that deviates from what is thought by His Honour to be ‘normal’. Speculating about complex emotional factors in such a scenario cannot inform a judicial decision. A useful rule is to never assume anything about anyone … especially in a court of law. Harrison J’s reasons here only add to the fog of doubt around this case.

PARS 72-74
72 JC (the babysitter) was taken to a statement that she gave to the police on 18 September 1998, in which she said this:

“In 1982 I recall see something a bankcard statement at the house which indicated a transaction involving something connected to an optical purchase. I cannot remember how much it was or any other details or who made the transaction. I cannot remember the circumstances of my actual seeing this statement but it seemed to be an indication that Lyn was still around. Lyn used to wear contact lenses and spectacles.”

73 JC confirmed that she gave similar evidence at the coronial proceedings in 2003 in the following terms:

“Q. Did you ever see a bankcard statement come into the house?

  1. I can’t recall I think I might have.
  2. Can you remember when that was?
  3. Very early in 1982.”

74 It is extremely difficult to know what to make of this. The only evidence of the alleged bankcard transactions by Lynette Dawson is what Mr Dawson has told other people. It is obvious that if the evidence raised the reasonable possibility that Lynette Dawson made bankcard purchases after 8 January 1982, it would be fatal to the Crown case. The documents themselves are not available. Mr Dawson says it is unsurprising that he did not keep them as he had no reason at the time to suspect that they would ever achieve significance. He also maintains that if the present proceedings had been prosecuted with alacrity, the documents would in all likelihood have been available for inspection and that they would exculpate him. However, the question of how properly to assess the extent of any alleged prejudice in these circumstances is not one sided: the existence and the content of the statements are in the realm of conjecture.

The fact Dawson told other people about the transactions is potentially exculpatory and fatal to the Crown’s case (see PAR 13 above). As Harrison J says, ‘it is extremely difficult to know what to make of this’. That = uncertainty = doubt.

There is no proof of death, and intimations to the contrary (above) is indeed a ‘difficulty’ for the Crown. There’s no death record for Lynette in the period prior to this trial. Did anyone look at the Deed Poll register? She could have died under a different name… or remained alive; 40 years ago it was a lot easier to establish a new identity with very few computerised systems and no internet footprints.

Chris Dawson may be guilty (he claims not) – but this judgement does not convince beyond reasonable doubt.

 Did the high public profile of the case through The Australian’s extensive coverage and podcast ‘Teacher’s Pet’, prime the public? Could Harrison J have ingested unconscious bias in view of the public appetite for a guilty verdict?

 Perhaps cases that are purely circumstantial should be heard by three judges and require a unanimous verdict, setting a higher bar for conviction in light of the potential for miscarriage of justice. In the event of a dissenting opinion, the matter is automatically referred to the court of appeal.




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14 Responses to Could reform help secure safer convictions in circumstantial cases?

  1. Brian Johnston says:

    Possibly the main flaw in our judicial system is the police have an unlimited budget to back up their prima facie cases. The defence don’t. The police effectively use taxpayers money to gaol taxpayers.
    The defence just does not have the same budget. Most defendants cant afford lawyers and why should one if one is innocent.
    The police are required to share some information. It is often what they don’t share which puts an innocent in gaol.

    One of the worst miscarriages of justice must be the Scot Watson matter where the prosecution (headed by Paul Davison) at the closing stages of the trial introduced the two trip theory saying to the effect “Watson went back to shore, we do not know how he got back, we do not need to know, we just need to know he did”.
    We do not know Watson went back to shore and the judge supported that invented hogwash. Watson’s lawyers threw their hands in the air. The trial finished and on the strength of the invention Watson went to gaol for a crime he did not commit.

    Watson now cannot even get out on parole because a nutcase psychiatrist has deemed Watson unfit for release. Which raises the crazy question, how can an innocent man be unsuitable for release. The mind boggles. The murders happened 1998/1999 and Watson is still in gaol.

  2. David Smith says:

    All of these Cases have one thing in common – Questionable Police Investigations and Questionable Prosecution with selective Evidence being presented to the Jury or Judge????? Tunnel Vision by Police and Convict at all Costs Prosecutions are the common denominator with all these and this attitude that they are never wrong and do not make any mistakes – Investigators need to be Honest and accept they are not always right. Until there is an Honest Review Board nothing will change. The appeals process is a waste of time as they only look at the Law and not Common Sense Evidence.

    • andrew says:

      True. Which is why perhaps they say the law is an ass…

    • Peter says:

      Would an Aussie Criminal Cases Review Commission be able to do the job that your Honest Review Board would do?

      If you don’t know what a CCRC does, read

      Though I think a CCRC is needed in every state of Australia, I also think that improving the trial process, eg by having three Judges instead of one Judge, is a topic worthy of more discussion.

      • Father Ted Whalensky says:

        Under no circumstance will the existing video of the Brave German Policeymens Dog latched onto Jayden Abrahams face be shown to the gullible mug punters–in other words–it didn’t happen ! The WA Police are still pissed off–the future Commissioner desperately wanted to hang Darryl Beamish–AH well– our little German doggies can still chew an Aboriginal Childs Face with total immunity–The video disappeared–like Colin Mannocks qualifications-and the Vass DNA blue cloth-Jaydon Abraham should be thankful the brave policeymens didn’t beat him to death–as per John Pat ! That Vass Sheila is still a lurking problem– unfinished business .

  3. Peter says:

    I think Andrew’s “three Judge” idea for judge-alone trials is an excellent idea, even if it’s not yet been tried in most countries and would cost more – we might even have to appoint more – hopefully younger – Judges.

    I’ve attended only one Judge-alone trial. The bias shown by the Judge towards the side which won was apparent from about halfway through the trial. The Judge’s write-up of the decision had many rather obvious mistakes in it, all favouring that one side.

    At one jury trial I attended, the Judge’s bias towards the prosecution was so blatant that it was impossible for the accused to win.

    Nicholas Cowdery in a recent book of dubious merit accuses the Judge at the Keli Lane trial of bias towards Keli Lane. If the trial had three Judges instead of one, such unpleasant thoughts and accusations would not happen nearly as often.

    In an interview by Ray Hadley, I think Tom Bathurst mentioned how one of his roles is to try to minimise bias shown by the Judges he’s in charge of. That confirms that bias by a Judge does exist.

    If you look through the Annual Reports of the NSW ODPP, very roughly 20% of defendants win. Then at appeal, very roughly 20% of the remaining 80% win. It varies from year to year. So perhaps about half of people who at one of those two stages are found Not Guilty by this two-part process are thrown in jail between the trial and appeal. That just seems so weird to me. Appeals have three Judges. Why not start with three judges – why not try to get it right the first time rather than the second time in those 20% of trials which needed to be overruled?

    Football matches used to have one referee but now have several referees. Cricket used to have two umpires but now has three umpires, or four if you include the match referee. Is it possible for the Law to move into the 21st Century where contests now so often have multiple umpires, modern technology, and sin bins or suspensions for errant participants such as wayward prosecutors or ball-tamperers or spear tacklers?

    All the above indicate that three Judges right from the start would be better than one, and would be better than a Jury too, by the way.

  4. Brian Johnston says:

    Andrew will you drop references to the Keogh case. It does not help. If you go to Moles’ site you will find all Keogh’s lies including denying Anna-Jane had insurance policies. He lied and lied and lied. Moles did not get Keogh out because Keogh is innocent. Moles got Keogh out because Manock was not qualified. Keogh is guilty.
    Keogh was also sneaking back for nights with his wife. He was an a$$…e and Anna-Jane’s family did not like or trust him and nor would I.

    I am very concerned about the Robert Xie case and believe he could be innocent.

    I believe Sue is innocent.

    I believe Martin Bryant is innocent and you say nothing.

    Bradly Murdoch is surely innocent along with Ivan Milat.

    Why the interest in Dawson.
    I do not believe Christopher Dawson is innocent.
    Lynette Dawson on the 8th January arranged to meet her mother the next day.
    Lynette did not turn up. She has been not been heard of since.
    I believe Christopher Dawson murdered his wife.
    He had the girl friend living in the house while attending marriage counselling. What!

    This is where things get interesting. It is a prima facie case – most are -and by definition:
    1. At first sight.
    2. As it seems at first.
    3. Based on first impression.
    4. Accepted as correct until proved otherwise.

    To rebut a prima facie case:
    Find evidence that discourages or dissuades others from arriving at the same invention. Frightening!!

    So while the prosecution has to sort of prove their case one is highly reliant on their own defence lawyer to ‘get them off’. Or if one is innocent to save them.

    We certainly need a better system.

    • andrew says:

      Brian, I’m sure your multi-point comment will interest our readers, although they might wish for more & stronger evidence to support your opinions.

      One thing we all agree is that we do need a better system. This article explores just one aspect; I wonder if any law reform-minded lawyer will consider it?

    • Owen allen says:

      Martin Bryant is my brother from another mother.
      The poor boy was so indocrinated and manipulated he was not his own person. Tavistock. He was the classic patsy. Tasmania Mind Control.
      Tasmania cronyism, nepotism, whisper in your ear walking past, evil, Commenting annon, spreading rumours, defamation, lies, deceit, corruption; even destroyed a CASA ex employee, and his destroyer became Premier. That is how they live in Tasmania.
      In for penny, in for a pound, thats me, like USAAF and RAAF.

      • Owen allen says:

        Martin Bryant was not in the cafe shooting people from the hip.

        • Father Ted Whalensky says:

          Intriguing– who was shooting in the CAFE– ROGER ?

          • Brian Johnston says:

            Father …..: We have been informed the shooter had a military background. I am not aware if that has been proved.
            The head of the army at the time said the shooter has to be better than me and there aint that many people around that are that good.
            The shooter was on the day instructed to shoot up the cafe. A giant fiasco. Intelligence people were in the cafe. If you recall a naval officer who was shot and survived said the shooter had a pocked complexion. We have since learnt it was the result of childhood chickenpox and that aint Bryant.

  5. Moni says:

    Thank you Andrew for some clarity on Harrison J comments.

    I don’t know how people don’t realise that when the crown and the Judge make comments or present matters as if they were there watching or can read the minds of all the players it is all speculation.

    No body = doubt
    No confession = doubt
    No witness/es = doubt
    No murder weapon = doubt

    It is very dangerous and defies justice to convict on speculation.

    True story:
    I remember as a 12yr old my fathers cousin appearing one day with a blue trunk and a suitcase. The cousin explained to my parents he had been in America and married a woman with whom he had a couple of children. One day he told his wife that he was going out to buy a loaf of bread and he kept walking. He never went back and he never contacted them again. He just up and left. He then asked my parents to look after the trunk and suitcase and that he’d be back. They never saw him again. He never ever returned. Years passed, finally the inquisitiveness about what was in the trunk got the best of my brothers and I and we opened it only to find pretty much nothing. My parents heard vaguely that he went to Qld and married another woman.

    I hope no one in the US starts snooping around with a podcast idea that leads to the conviction of an innocent woman!

    Scary stuff, when you think about it.

    • Owen allen says:

      Get your drift Moni, took a while, I am a bit slow. But, eventually even slow thinkers like myself, get the drift, but sometimes it can be too late.
      Bring on a National Criminal Case Review Commission.
      Owen, ( owen nobodody nuthin except payback, Justice,)
      Great work Moni.

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