Citation: R v Dixon (a pseudonym) [2023] NSWDC 368
Court: District Court of New South Wales
Date: 7 September 2023
Judge: Priestley SC DCJ
Background
The accused faced six counts on a single indictment. Count 1 involved an allegation of sexual intercourse without consent against one complainant (GM), arising from an incident in December 2021 during an established consensual sexual relationship. The remaining five counts (counts 2 to 6) involved a different complainant (AD) and arose from a single incident in May 2022, encompassing two assault charges, two sexual intercourse without consent charges, and one choking charge. The conduct alleged in counts 2 to 6 included significant physical violence.
The accused applied to have count 1 severed from the indictment under section 21 of the Criminal Procedure Act 1986 (NSW), seeking a separate trial on the basis that being tried jointly on all counts would cause him unfair prejudice in his defence. The Crown opposed severance, relying on a tendency notice it had served, which asserted the accused had a tendency to use physical dominance to overpower women with whom he had previously had a consensual sexual relationship, in order to have intercourse without their consent.
The central question was whether the tendency evidence arising from counts 2 to 6 was admissible in a joint trial of count 1, or whether the prejudicial effect of that evidence outweighed its probative value.
Legal Issues
- Whether count 1 should be severed from counts 2 to 6 under section 21(2) of the Criminal Procedure Act 1986 (NSW) on the ground that a joint trial would prejudice the accused's defence.
- Whether the tendency evidence identified in the Crown's tendency notice was established, having regard to the facts alleged across both complainants.
- Whether the probative value of any established tendency evidence substantially outweighed the danger of unfair prejudice to the accused, as required for admissibility under section 101 of the Evidence Act 1995 (NSW).
Decision
Priestley SC DCJ considered the tendency the Crown sought to prove, as framed in the tendency notice: that the accused had a tendency to use physical dominance to overpower women with whom he had a prior consensual sexual relationship, and to have intercourse with them without consent. The court examined whether the factual circumstances of both complainants' accounts disclosed a common tendency with sufficient specificity to satisfy the legal threshold.
The court found that if the "rolled up" tendency as set out in the notice was applied, it was not established. At that level of specificity, the circumstances across the two complainants were too different to reveal a common tendency. However, if the tendency was stated more narrowly, namely a tendency to sexually assault women with whom the accused had a prior consensual relationship, that narrower tendency was established and carried significant probative value.
Despite finding significant probative value in that narrower tendency, the court concluded that value did not substantially outweigh the danger of unfair prejudice. The nature and degree of violence alleged in counts 2 to 6 was vastly more extreme than the conduct alleged in count 1, and the court accepted there was a real risk the jury would misuse the evidence. Specifically, a jury that accepted counts 2 to 6 might simply punish the accused in respect of count 1, or might respond irrationally to the graphic nature of the alleged conduct, and a judicial direction was unlikely to adequately remedy that risk.
Accordingly, severance was ordered. Consistent with that reasoning, the court held that while evidence of counts 2 to 6 could not be led in the trial of count 1, evidence of count 1 may be led as tendency evidence in the trial of counts 2 to 6. The court noted, however, that this remained subject to a further application if count 1 were tried first and resulted in a not guilty verdict.
Orders Made
- Count 1 be severed from the indictment.
- The evidence of counts 2 to 6 on the indictment is not admissible in the trial of count 1.
- The evidence of count 1 is admissible in the trial of counts 2 to 6, subject to any further application in the event the trial of count 1 occurs first and a not guilty verdict is delivered.
Key Takeaways
- A tendency that is framed broadly, such as using physical dominance to overpower and have intercourse without consent, may lack the specificity needed to be established where the factual circumstances across complainants are materially different, even if the general character of the conduct is similar.
- Significant probative value in tendency evidence is not, on its own, sufficient to defeat a severance application. Under section 101, that probative value must substantially outweigh the danger of unfair prejudice before the evidence is admissible.
- The District Court found that a marked disparity in the degree of violence alleged across counts can create a risk of jury misuse that a direction is unlikely to cure, supporting both exclusion of that evidence and the grant of severance.
- Severance does not necessarily prevent cross-admissibility running in the other direction. The court confirmed that tendency evidence from the severed count may still be admissible in the trial of the remaining counts, at least absent a not guilty verdict on the severed count first.
- Under section 29A of the Criminal Procedure Act, courts ordinarily must hear multiple counts together where a tendency notice has been served, but that obligation yields to the court's power under section 21(2) where prejudice to the accused's defence is established.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), sections 21, 29A
- Evidence Act 1995 (NSW), section 101
Cases
- R v Rodriguez-Saldana
- Taylor v R [2020] NSWCCA 355
- Hughes v The Queen (2017) 263 CLR 338
- Hammoud v R [2020] NSWCCA 339