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District Court 14 June 2024

R v Dixon (a pseudonym) No.2

[2024] NSWDC 219

Sexual offences

Citation: R v Dixon (a pseudonym) No.2 [2024] NSWDC 219
Court: District Court of New South Wales
Date: 14 June 2024
Judge(s): Priestley SC DCJ

Background

The accused faced two separate trials arising from sexual assault allegations made by two complainants, referred to as AD and GM. Originally, all six counts appeared on a single indictment, but an earlier ruling severed the GM allegation (count 1) from the AD allegations (counts 2 to 6). The reason for severance was that tendency evidence from the AD counts was admissible in the GM trial, but not vice versa. By contrast, GM's evidence was ruled admissible as tendency evidence in the AD trial, subject to a proviso: if the GM trial ran first and resulted in an acquittal, a further application to exclude that evidence would be available.

The Crown elected to run the AD trial first. The accused responded by filing a notice of motion seeking a temporary stay of the AD trial until the GM trial was completed.

The core dispute was whether the Crown's decision to proceed with the AD trial first created an unfair forensic advantage by allowing tendency evidence from GM's untested allegations to be placed before the jury, potentially in circumstances where that evidence might later be found inadmissible had GM's trial run first.

  • Whether conducting the AD trial first, before the GM allegation had been tested at trial, amounted to an abuse of process or otherwise created unfairness for the accused.
  • Whether the accused's right to silence in respect of the GM allegation was prejudiced by the sequencing of the trials.
  • Whether the principle of incontrovertibility, applied following an acquittal in the GM trial, could render GM's tendency evidence inadmissible in a subsequent AD trial.
  • Whether the court should exercise its power to grant a temporary stay of the AD trial pending completion of the GM trial.

Decision

Priestley SC DCJ accepted the accused's core argument. Running the AD trial first would place before the jury tendency evidence from GM's allegations before those allegations had been tested at trial. If the GM trial were to run first and result in an acquittal, the previously admitted tendency evidence would likely be subject to a further exclusion application, and, consistent with the reasoning in ELD v R and R v Young, might well be regarded as having no probative value and as carrying significant unfair prejudice.

His Honour considered the Crown's argument that proceeding with the AD trial first would avoid procedural complications, including the risk of a contested further pre-trial application in the event of a GM acquittal. While acknowledging that this concern had some substance, his Honour found it did not provide a legitimate basis to prioritise administrative convenience over the accused's entitlement to a fair trial.

The Crown's reliance on DPP v DL and R v Chase was distinguished. Both those decisions addressed the meaning of s 101(2) of the Evidence Act 1995 as a question of law, and arose in factually different circumstances where other significant considerations were in play. They did not resolve the present question.

His Honour concluded that conducting the AD trial first created genuine unfairness. The accused was not seeking an evidentiary advantage but rather to be tried on evidence whose admissibility had been properly determined. There was no legitimate disadvantage to the Crown in requiring the GM trial to proceed first. Applying the principles confirmed in MacDonald v R; Maitland v R, the court found a temporary stay was appropriate to relieve against that unfair consequence.

Orders Made

  • The trial of the accused based on the complaints of AD is stayed until the completion of the trial based on the complaint of GM.

Key Takeaways

  • The District Court confirmed that a temporary stay of proceedings is an available remedy where the sequencing of related trials would expose an accused to tendency evidence that may not properly be admissible if the related trial runs first and results in an acquittal.
  • Administrative convenience for the prosecution, including avoiding future pre-trial applications, does not provide sufficient justification to override the accused's right to a fair trial.
  • Where a tendency evidence ruling contains a proviso preserving the accused's right to make a further application in the event of an acquittal, that proviso carries real procedural weight in determining the appropriate order of trials.
  • Under the principles confirmed in MacDonald v R; Maitland v R, a temporary stay will be granted only to the extent necessary to relieve against identified unfair consequences, not as a general remedy against inconvenience.
  • Decisions such as ELD v R and R v Young indicate that evidence from a complainant whose allegations have been rejected by a jury may carry very limited, if any, probative value in a subsequent trial, and may be excludable on unfair prejudice grounds under the Evidence Act 1995.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 101, 137

Cases
- R v Dixon (a pseudonym) [2023] NSWDC 368
- ELD v R [2005] NSWCCA 446
- R v Young [1998] 1 VR 402
- R v Storey (1978) 22 ALR 47
- Garrett v The Queen (1997) 139 CLR 437
- DPP v DL [2018] ACTCA 61
- R v Chase (a pseudonym) [2018] NSWCCA 71
- R v Medich (No. 38) [2018] NSWSC 322
- MacDonald v R; Maitland v R (2016) 93 NSWLR 736; [2016] NSWCCA 306