Accused Murderer Granted Bail

Former high school teacher Lynette Dawson disappeared in 1982, just two weeks before her daughter was due to commence kindergarten.

The mother-of-two was last seen at the Bayview home shared with her husband, Chris Dawson.

Mrs Dawson’s body has never been found.

Mr Dawson has consistently and vehemently denied any involvement in his wife’s disappearance.

A cold case investigation into the suspected murder commenced in 2015, and the events surrounding Mrs Dawson’s disappearance have been the subject of an Australian podcast titled The Teacher’s Pet and a number of segments on television in recent times.

Arrest, extradition, charge and bail application

The investigation resulted in the arrest of Mr Dawson at a relative’s home on the Gold Coast, before he was extradited to New South Wales.

He was charged with murder and the case came before Magistrate Robert Williams in Central Local Court yesterday for a ‘release application’ (also known as a bail application).

During that application, the prosecution conceded that the case was entirely circumstantial but submitted the “irresistible conclusion [was that] Ms Dawson died on or around January 8, 1982… after a phone call with her mother”. The prosecutor submitted there was strong witness accounts regarding the marital troubles of the pair, referring to a marriage counselling session during which the defendant allegedly threatened to kill his wife, saying “if this doesn’t work, I’ll get rid of you”.

Mr Dawson’s criminal defence lawyer described the case against his client as “far from strong”, reiterating its entirely circumstantial nature and pointing out that police had failed to investigate several sightings of Mrs Dawson years after she had disappeared.

The Magistrate determined that the prosecution case was “not weak”, but considered a number of factors in reaching the conclusion that any bail concerns were alleviated by strict conditions.

He therefore granted bail on a number of conditions including that an acceptable person deposit security in the sum of $1.5 million. The proposed surety is the defendant’s older brother, who is reported to have mortgaged his home in Dural.

Mr Dawson is next scheduled to appear in court on 19 February 2019.

In the meantime, the prosecution has been ordered to serve the brief of evidence upon his legal representatives.

What is bail?

The rules relating to bail in NSW are contained in the Bail Act 2013 (‘the Act’).

The Act defines bail as ‘authority to be at liberty for an offence’.

It provides that, once granted, bail continues until it is either revoked or the case is finalised.

If police refuse to grant bail at the police station, the defendant must be brought before a court ‘as soon as reasonably practicable’ for the determination of bail.

There are three types of bail applications under the Act:

1. Release applications – which are applications for bail,
2. Detention applications – which are applications by a prosecutor to refuse or revoke bail, and
3. Variations applications – which are applications by either party to vary bail.

The process and considerations for bail applications

The determination of bail involves a two-stage process:

Stage 1 – determining preliminary requirements, namely:

1. Any ‘show cause requirement’, or
2. Any ‘exceptional circumstances requirement’

1(a) Showing cause

Section 16A of the Act states that a court must refuse bail where a ‘show cause’ situation applies unless the applicant shows why his or her detention is not justified.

Section 16B lists the applicable ‘show cause offences’, which comprise a wide range of offences and situations – including the offence of murder.

It is important to note, however, that case-law has made clear that neither ‘special or unusual or particularly special or unusual circumstances must be demonstrated before cause can be shown’.

There is certainly no requirement that ‘exceptional circumstances’ must be demonstrated before the show cause requirement is overcome.

Rather, each case turns on its own facts and a number of separately unremarkable factors can, in combination, cause the show case requirement to be met.

1(b) Exceptional circumstances

Section 22A requires a court to refuse bail for certain terrorism-related offences unless the applicant can establish that ‘exceptional circumstances’ exist which justify the grant of bail.

Factors which may be considered exceptional include:

• The youth of the applicant,
• The weakness of the prosecution case,
• The likelihood of unreasonable time or delay in the prosecution, and
• Principles of parity, including a grant of bail to a co-accused.

Stage 2 – determining risk

Where an applicant does show cause or exceptional circumstances, or where neither requirement applies, any ‘unacceptable risk’ of granting bail must be determined by the court.

This ‘unacceptable risk test’ is contained in Part 3, Division 2 of the Act.

Section 17, which is contained in that Part, requires a court to assess any ‘bail concerns’ before deciding bail.

Bail concerns

A bail concern is one that, if the applicant is released, he or she will:

(a) fail to appear in court, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.

The factors which may be considered when deciding bail

In determining whether which, if any, of these concerns apply, the court must only take into account the matters contained in section 18, which are:

(a) background, including criminal history, circumstances and community ties,

(b) the nature and seriousness of the offence,

(c) the strength of the prosecution case,

(d) whether there is a history of violence,

(e) whether the applicant has previously committed a serious offence while on bail,

(f) whether the applicant has a history of compliance or non-compliance with court orders.

(g) whether the applicant has any criminal associations,

(h) the length of time the applicant is likely to spend in custody if bail is refused,

(i) the likelihood of a custodial sentence being imposed if convicted,

(j) if the applicant has already been convicted, whether the appeal has a reasonably arguable prospect of success,

(k) any special vulnerability or needs the applicant,

(l) the need to be free to prepare the case,

(m) the need to be free for any other lawful reason,

(n) the conduct of the applicant towards the complainant or their family,

(o) in the case of a serious offence, the concerns of any complainant or family member regarding safety,

(p) the available bail conditions,

(q) whether the applicant has associations with a terrorist organisation,

(r) whether the applicant has made statements or carried out activities advocating support for terrorist acts or violent extremism,

(s) whether the applicant has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.

Determination of bail

The court must refuse bail if it determines that the applicant poses an unacceptable risk.

The court must grant bail, with or without conditions, if it decides the applicant does not pose an unacceptable risk.

In what circumstances may a court impose bail conditions?

Section 20A provides that a bail conditions can only be imposed if there is an identified bail concerns, and must only be imposed where the condition is:

• reasonably necessary to address a concern, and
• reasonable and proportionate to the offence, and
• appropriate to the identified concern, and
• no more onerous than necessary, and
• reasonably practicable, and
• likely to be complied with.

What conditions may be imposed on bail?

Part 3, Division 3 of the Act states that bail conditions can be imposed which relate to:

• Conduct requirements; section 25,
• Security requirements (eg the deposit of money); section 26,
• Character acknowledgements; section 27, and
• Accommodation requirements; section 28.

Going to court for a bail application?

If your friend or loved-one requires expert legal representation for a bail application in NSW, call us today on (02) 9261 8881 and let our experienced criminal defence team fight for his or her release from custody.

We offer fixed fees for bail applications in all courts, from Local Courts throughout the state to the Supreme Court of NSW.