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.
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.
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.
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?
- I can’t recall I think I might have.
- Can you remember when that was?
- 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.
REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE
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.
CONCLUSION & PROPOSAL:
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.