When the judge discharged the jury, he gave little indication of why he did so. The reason for his reticence was that the evidence, which the judge had heard in the absence of the jury, was not and could not be reported in the press because of the risk of prejudicing a retrial. Such evidence has the quaint Norman French description voir dire meaning ‘speak the truth’. Mrs Dawson had survived the first battle, but she was far from home free.
Justice Isaacs remanded Mrs Dawson for a retrial, reduced her bail and deleted the reporting conditions. The tense atmosphere eased a fraction.
* * *
Before any of this happened, there was a short adjournment sought by both counsel. Speculation was rife. It was obvious Vin Wallace QC could see the writing on the wall, and foresaw the possibility of an outright acquittal down the track. Speculation began that perhaps he would offer to accept a plea of guilty to manslaughter in full discharge of the murder indictment. This would remove the dreaded spectre of a mandatory life sentence, even for a young mother with no criminal record.
Right at the end of the transcript of the proceedings comes an intriguing episode. It is recorded at page 166, when the Crown foreshadows the inevitable application to discharge the jury without verdict.
Justice Isaacs indicated his intention to make the formal order for a retrial on ‘some other date and to be fixed at such place as the Attorney-General may appoint’.
Mr Wallace QC responds, ‘It is only in respect of that latter situation that it might be of some advantage if we could have a few minutes.’
Mr Shields’ reply is equally as intriguing and, for him, laconic: ‘Before I indicate my attitude I would want some express instructions from my client and I would like the opportunity of speaking to her in any case.’
Does the judge have a clue? The official record continues:
His Honour: Yes. Is there some place here where you can speak to her privately?
Mr Shields: Yes Your Honour.
(Short adjournment.)
What, at that stage, other than a plea-bargain offer, would require ‘express instructions’ and that the judge be so anxious to ensure ‘privacy’ for it?
When the court resumed, there is not a mention of what transpired during the break and the private conversation.
Nothing.
The judge takes the initiative and, with a leading question, simply obtains Mr Shields’ support for the jury to be discharged.
Why had the jury not been discharged earlier, before that adjournment? Mrs Dawson was formally in that jury’s charge. Had a plea bargain been reached, Mrs Dawson would have been rearraigned, affirmed her plea of not guilty to murder, but then pleaded guilty to manslaughter. When the Crown accepted that plea, the judge would then have formally obtained the verdict from the jury. After which, the judge alone would have proceeded to the task of sentencing for manslaughter.
It is important to remember murder then carried but one penalty: life. Allowing time for the defence to consider accepting the plea bargain could have been the only purpose of that short adjournment, so discreetly arranged.
Before the court adjourned, at the request of Mr Wallace QC, the judge cleared Detective Sergeant Hole of any mala fides, that is, ‘bad faith’.
To me, that was a generous finding.
* * *
The appointed venue for the retrial of Mrs Dawson in November 1973 was the university city of Armidale in the heart of New England. The cast was the same except for the judge. The new judge was Justice Robert Lindsay Taylor. Feared by the bad, but loved by the good, or so they said.
Suddenly, the word no one dared mention aloud at Tam-worth was all the rage: manslaughter.
Mrs Dawson had survived the first trial on a technicality, but she still faced a life sentence if found guilty of murder at the second. The situation had changed. The Crown was openly prepared to accept a plea of guilty to manslaughter. If Mrs Dawson did so, that would mean a minimum prison term of around three to five years, perhaps much longer. This seemed far better than risking the horror of fifteen years or more if she were found guilty of murder. But, thank goodness, the decision was never mine. It now rested alone with Mrs Dawson herself, advised by John Shields, her Public Defender.
Mr Wallace made his proposal and what then transpired in discussions between Mrs Dawson and her lawyers remains privileged. Suffice to say, there was never any plea of guilty to anything, and the trial proceeded.
Mrs Dawson’s resolute refusal to even contemplate pleading guilty to the lesser charge of manslaughter was, with all due respect to the lady, illogical. She was not well educated and had no prior experience with criminal law. Defence counsel’s personal views as to the merits of the client’s case are never disclosed; the client’s instructions, or account, are the yardstick. Mr Shields had to ensure Mrs Dawson did not allow her fear of gaol, which she had so recently tasted, to lead her to gamble her life away by not facing brutal inescapable facts. Mr Shields had done his duty.
As was her right, Mrs Dawson took the gamble.
That was indeed a brave decision. Its wisdom or recklessness would be known at the end of the trial. It was her decision but, if I had still been involved, I know what my emphatic advice would have been.
Counsel are always bound by the strictest of ethical rules in the plea-bargaining phase. Mr Wallace, a high public official, risked public criticism ‘for letting someone [Mrs Dawson] get away with murder’. The community might be better served ensuring a guilty woman went to gaol for some unknown and unspecified period of years than walk free, as was a real possibility. It was a delicate balancing act with practicality, duty and public interest intertwined. It must be made clear, there is nothing dubious or improper about so-called plea bargaining.
The Tamworth trial had abruptly concluded without verdict and the Crown lost its prize exhibit, the signed confession, but there was a chance the next judge would take a different view to Justice Isaacs. A chance, but not a strong one. Like it or not, Justice Isaacs’s decision was correct in law as it then stood. That was soon amply demonstrated when Justice Taylor reconsidered the issue at Armidale.
Noted for his abrasive style, Justice Taylor dealt with the bid to exclude the confession bluntly and unambiguously. To John Shields, it was along the lines of, ‘Why should I merely follow what another judge has done? I am the trial judge now. It is my decision.’
Equally bluntly, Shields replied, ‘Well, it was and is the correct and only decision open.’
The Crown conceded as much at Tamworth. Shields was implying, unsubtly, that any different decision would be a gilt-edged invitation to appeal. Such an appeal would be guaranteed success, he further implied, as sure as one can ever be with that august tribunal. The tender of the confession was rejected a second time. A different New England city, a different judge, an identical ruling.
But the Armidale trial was far from over, although the Crown was weakened. In reality, they never had the two little children as potential witnesses. Perhaps decisively, what would have been the prize exhibit, the three-page signed confession, was out. A heavy but not fatal blow.
It is always helpful for the jury to warm to the accused, but Mrs Dawson’s serious sexual indiscretion would have heavily told against her. The evidence of the sex in the car would have been highly prejudicial to Mrs Dawson in the eyes of the jury, but the provocation of her infidelity would have been more relevant if Mr Dawson had lost control and harmed his de facto—or if it drove him to suicide, but neither side suggested it did. If the Crown had thought Mrs Dawson’s love, if it were that, for Mr McInnes provided a motive to kill Lance Dawson, it didn’t say so. If it had tried, such a move would have been dismissed out of hand. It was a shabby episode, but not a factor in the ensuing tragedy.
The Crown still relied upon an admission by Mrs Dawson that, on a prior occasion, she had tried to shoot Lance Dawson, but missed. In that context, there was the bullet hole in the wall to prove it. The Crown also challenged Mrs Dawson’s denial she did n
ot know how to use a gun by the fact she had once been out rabbit shooting. This was a murder trial, not a neighbourhood dispute, and these were all items building proof of guilt. It was not, by any means, a weak Crown case.
Mrs Dawson made a moving statement to the jury when pleading her innocence. Midway through the statement she collapsed prostrate on the floor of the dock. This was no gesture seeking to gain the jury’s sympathy—Mr Shields moved to help her and noticed her eyes rolling.
Mrs Dawson recovered and after a glass of water, continued her statement.
It was the first time in her life Mrs Dawson had spoken in public. To make her statement she had stood in the dock, flanked by two uniformed police officers, and faced the jury in the large Armidale courtroom.
The Armidale Express described her statement as an ‘impassioned plea of innocence’. In her own words, Colleen Dawson said, in part:
I was standing beside the car and Lance came up and grabbed me by the hair, pulled me down and dragged me on the ground. He then pulled me up by the hair and kicked me and told me to get home. I went home and he walked into the kitchen and walked around the table, punched me on the back of the neck and then he walked to the fridge, poured out half a glass of sherry and threw it in my face. He was swearing at me while he was doing this and then he walked back to the fridge and poured out a glass for himself. He sat down on the cupboard and then he was trying to shut the fridge door—banging it which had to be lifted to be shut and he was swearing at the same time. With the noise of this he had woken the kiddies up. They came into the kitchen screaming and he said, ‘I am going to kill you and the bloody kids,’ and as he said that the kiddies ran over to me and grabbed me. I turned around to look at them and then the gun went off. I never touched the trigger and he had the gun. I had never used—handled a gun in my life.
Mr Shield asked the accused, ‘Do you want to say something about a previous incident, Mrs Dawson?’
‘The incident of the hole in the kitchen wall? That occurred about three and a half months ago. He came home. He was drunk. He got the gun and he was going to shoot the kids and I struggled with him and the gun went off.’
Mr Shields had broken no rules prompting his client. The law permitted this provided counsel did not whisper but spoke in a voice all could hear.
Today, the Mrs Dawsons of the world no longer have the right to tell their side of the story to the jury from the dock. The atmosphere of prejudice is bad enough where, as here, the accused sits in the dock, flanked by uniformed guards. Today, an accused person, if they wish to speak at all, must go into the witness box or remain mute. The right to make a statement from the dock was abolished in 1995. It was a retrograde step. If she had gone into the witness box at Armidale, Mrs Dawson would have faced Vin Wallace QC, the Deputy Senior Prosecutor. As a cross-examiner he was fearless and fearsome and, above all, firm.
Mrs Dawson had crumbled almost immediately when interrogated by the police in Texas. Some of those answers, she claimed, were factually wrong. How would she have coped in the huge Armidale courtroom surrounded by police, lawyers and a public gallery, and the robed judge and barristers with their wigs and gowns? Her ordeal in the witness box would have gone on for hours, as she was challenged line by line through her testimony. This is unfair. A Crown Prosecutor with a powerful intellect and a lifetime in the law, always on the side of the prosecution, never the defence, against a young, poorly educated, unemployed, inarticulate and unsophisticated country woman who, as she told the jury, had never been in a courtroom before. No, not fair.
* * *
The evidence had concluded and now it was John Shields’ time to make his final address to the jury. Whatever his personal view, John Shields gave it his all. On Mrs Dawson’s instructions, his mission was not a compromise reduction to manslaughter but to convince the jury to an outright acquittal. He earnestly pursued his client’s unrealistic ambition and instructions.
In the two trials, Mr Shields had achieved a great deal for Mrs Dawson. Two Supreme Court judges had been forced to rule out her confession. One suspects, as a realist, a verdict of manslaughter remained her best hope.
The elephant in the room, which was the whole cause of the domestic argument, was escalated into tragedy. Was Mrs Dawson’s act of infidelity on the night important? It had no relevance to whether the Crown had proved the elements of murder against Mrs Dawson. Unfaithfulness and the provocation it caused would have been relevant had Lance Dawson shot dead his de facto. But human frailty had resulted in the reverse: Mr Dawson’s violent end. Sexual infidelity might have provoked violence and scuffle, but it can never justify it.
Likewise, back at the homestead, there was no question of self-defence or retaliation by Mrs Dawson. She did not deny being unfaithful, she simply denied firing the fatal and only shot.
The sexual activity with Mr McInnes in his car had no bearing upon her legal liability for her de facto husband’s death, as distinct from her perceived moral frailty. Justice Taylor was presiding over a court of law, not of morals, but that could not and would not prevent the jury from judging Mrs Dawson adversely for her indiscretion. This is a point which defence barristers find themselves having to emphasise again and again to juries.
Very much in her favour was the undisputed, independent evidence that, at all times until his death, Lance Dawson was holding the rifle. Although a victim of domestic violence, she loved him. In his address, Mr Shields described Mr Dawson as ‘a likely street angel and house devil’.
Mrs Dawson’s problems were not over yet. Even without the confession, there was still the problem of Mr Dawson being shot in the back of the head. John Shields’ task was to try to convince the jury there was not enough evidence to convict Mrs Dawson of murder. The discredited suicide theory was desperately revived.
The Crown case was based on the argument that Lance Dawson could not have shot himself in the back of the head. It seemed commonsense. Then a decisive and stunningly dramatic incident occurred.
During his final address, Vin Wallace QC attempted to show the jury it was not possible for a man to shoot himself from behind. In doing so, he placed his thumb on the trigger and his arms behind his back, with the empty gun pointing at the back of his head.
The court became absolutely hushed. Something had gone wrong. It became apparent Vin Wallace could, in fact, hold the weapon in such a way as to be able to shoot himself in the back of the head. He had obviously not rehearsed the move. The jury plainly saw he was able to hold the gun in position and fire it at the back of his head. It was a blow for the Crown, and undermined the police case. It was a stunning, memorable moment.
Thursday, 15 November 1973, was the big day. Justice RL Taylor began his summing up at 9.30 am and had concluded it by 10.45 am. By today’s standards, that was brief. Not noted for summings up which favoured the accused, the judge told the jury, as he was bound to do by law, Mrs Dawson’s good character must be considered, not only on punishment but on the very question of her guilt or otherwise.
The jury was back with their verdict straight after lunch at 2.05 pm, a total retirement of three hours and twenty minutes. For a murder trial, the jury’s retirement was a brief one, including as it did the lunch break.
The verdict? Not guilty.
Hearing the verdict, Mrs Dawson collapsed again in the dock.
It was an extraordinary result. When the police charge a person with murder they usually have a strong case and acquittals are rare. Five months earlier, Mrs Dawson had confessed to the murder and it seemed she would spend much of the rest of her life in prison. For her to walk free was almost unbelievable. Once she left the court that day, neither John Shields nor I ever saw her again. She was shaken by the verdict, but understood just how fortunate she was. In my entire career at the Bar I only won three outright acquittals of murder. John Shields was bolder than me and managed to win six.
Barristers never win cases, it’s the evidence. All lawyers agree on this. Although occasionally, they can
lose them. Having said that, against all those formidable odds, Mrs Dawson’s walk into the Armidale summer sunshine was a magnificent achievement for John Shields.
* * *
For me the real hero in this case was not any lawyer, but the local police officer, Detective Sergeant Alan Brown. His boss, Detective Sergeant RG Hole from Tamworth had, to be charitable, blundered by misleading Mrs Dawson and creating the valid argument that the confession had been gained by an untrue representation.
Detective Sergeant Brown’s honesty and frankness led me straight to his official notes, which were truthful. This in turn armed trial defence counsel, John Shields, with cogent material that he so skilfully used to have the confession excluded.
Detective Sergeant Brown’s honesty was the ultimate reason Mrs Dawson went free. A more cynical and wily police officer could have simply not revealed Mrs Dawson had been told her children had witnessed the shooting when he knew they had not. Loyalty would have bought his grudging silence. It was Detective Brown’s integrity and competence which stood him apart from so many other police from that era. I never found out if his commitment to telling the truth had a negative impact on his career. I hope not. His motive, throughout the whole process, was simply fairness and observing the law.
It was not my habit then, or later, to go around complimenting police—they are quite capable of looking after themselves. Only once did I formally commend a policeman. I was a judge then and his name was Detective Sergeant Nick Kaldas. I am more than pleased to see he has risen through the ranks to beome deputy commissoner. At the time when he was before me, Mr Kaldas exuded fairness and efficiency, as well as a high level of dedication as a detective. Plainly, those qualities have not diminished with the passage of time.
In 2016 Deputy Commissoner Kaldas resigned to accept a senior law enforcement role with the United Nations at The Hague. In my opinion, it was a loss to the people of New South Wales.
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