R v Dixon (a pseudonym) [2023] NSWDC 368

District Court New South Wales

Medium Neutral Citation: R v Dixon (a pseudonym) [2023] NSWDC 368 Hearing dates: 29 August 2023 Date of orders: 7 September 2023 Decision date: 07 September 2023 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [43-45] Catchwords: CRIMINAL PROCEDURE – Severance of count on indictment CRIMINAL PROCEDURE – admissibility of evidence at trial Legislation Cited: Criminal Procedure Act 1986 (NSW) Cases Cited: R v Rodriguez-Saldana Taylor v R [2020] NSWCCA 355 Hughes v the Queen (2017) 263 CLR 338 Hammoud v R [2020] NSWCCA 339 Texts Cited: NA Category: Procedural rulings Parties: Rex (The Crown) Dixon (a pseudonym) (The Accused) Representation: Solicitors: Boenisch for the Director of the Department of Public Prosecutions Weller for the accused File Number(s): 2022/00184667, 2022/00148556 Publication restriction: Section 578A Crimes Act applies

Severance ruling 1. The accused is charged by way of indictment with 6 offences. Count 1 on the indictment alleges sexual intercourse without consent knowing the complainant was not consenting. That complainant is GM and the alleged date of offending is on or about 6 December 2021. 2. For the five other charges the complainant in each case is AD. Counts 4 and 5 on the indictment are allegations of sexual intercourse without consent knowing the complainant was not consenting. Counts 2 and 3 are allegations of assault and count 6 is an allegation of choking. All of the counts in which the complainant is AD allegedly occurred on 15 May 2022. 3. By notice of motion dated 4 August 2023 the accused seeks an order that pursuant to section 21 of the Criminal Procedure Act ("CPA") count 1 be severed from and tried separately to the other five counts. 4. In evidence on this application was the Crown case statement, statements of the complainants and a tendency notice the Crown has served. The tendency notice postdates the notice of motion. The trial of the matter is listed for 3 October 2023 and no issue is taken that the notice is not reasonable. 5. The tendency notice helps to define the issues on this application. That is because if the tendency evidence is permitted to be led then the severance application would be unsuccessful. In saying that the argument for the accused is not solely that the evidence is not tendency evidence because of what is said to be the extreme conduct alleged in counts 2 to 6 as compared to count 1. The accused further argues the evidence of the counts 2 through to 6 is of an alleged extreme level of violence including whipping and other matters which are said to be highly prejudicial. The argument is that (with reference to s101) the probative value of the evidence does not outweigh the danger of unfair prejudice to the defendant. That unfair prejudice is said to be that the jury may misuse the evidence and if they accept counts 2 to 6, (and in particular, counts 2, 3 and 5) will simply punish the accused and find him guilty of count 1. 6. By section 21(2) CPA an order for a separate trial of a count on an indictment may be made if the accused may be prejudiced in his defence by reason of being charged with more than one offence, which is the accused's argument here. By section 29A CPA a court must hear proceedings for 2 or more offences together if they are alleged to have been committed by the one person, and are charged in the same indictment and the prosecution has given notice it intends to rely on tendency evidence. By section 29A(2), section 29A is subject to s21(2). The focus is therefore on section 21.