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. The facts 1. In respect of count 1 the facts are of the accused and the complainant GM becoming acquainted with that acquaintance developing into a consensual sexual relationship. Between January 2021 and December 2021 they had sex three or four times. 2. On 5 December 2021 they met at a hotel. The accused had been drinking, the complainant believes the accused was still awake from another party the night before. They consumed the drug psilocybin in tea and in separate cars went to the accused's home. The allegation is that they were lying on a bed and the accused started talking about having sex and the complainant said she wasn't feeling like that and had her period. The complainant consensually performed oral sex on the accused. The complainant had a vision of the accused as the devil states she was unable to move away and eventually did so and left the house whereupon they went back to the pub. 3. They subsequently returned to the accused's house and laid down in the bedroom. The complainant had taken off her pants and was wearing, in her words, "just my undies on and a top". The accused had an erection and was pushing it into the back of the complainant who again told him she did not want to have sex and was on her period. He suggested anal intercourse and she said no. He suggested how they do it and she said she did not think it was the time for it. The accused was naked and kept pushing himself into the complainant's back. The complainant could feel his penis move into her butt and he had pulled down her undies. The complainant again said no she did not want to do it and thought he was joking. 4. The accused pushed the complainant on the bed facedown with a hand up on the pillow near her head and his entire weight was on her. He had his arms across her forearms and she could not free them. He then penetrated her with his penis causing great pain. He did this twice. The complainant described it as the accused "slam into my anus with his penis". She elbowed him and he stopped penetration and she said "what the fuck are you doing". The accused was crying, and apologised to the complainant and went to sleep. The complainant lay there before leaving at about 1 AM. This founds count 1. 5. In terms of counts 2 to 6 where AD is the complainant she met the accused about September or October 2021, had one date and then sporadic contact. The complainant states that on New Years Eve 2021 the accused said he loved her and then was away for a month, and since then they have been in a relationship, I infer from towards the end of January 2022. The complainant would stay in the accused's house on weekends and during one night of the week. The complainant describes the relationship as turbulent with good periods, and also times where they would break up following a fight. The complainant's statement sets out alleged conduct of the accused including telling her she was disgusting and telling her to shut the fuck up, as well as of excessive drinking and drug taking. 6. On 14 May 2022 they agreed to meet at the XY Hotel. The complainant was with friends of hers and there was some tension between them and the accused. The complainant with some friends went to the accused's house to collect some things where there was then an argument between her and the accused. AD then later called the accused to ask him to come and get her and he said he would do it if she sent a message saying she did not feel safe where she was and she sent a text saying she did not feel comfortable there. Some disagreement occurred in the car with the complainant wanting to get out and the accused not letting her. 7. There were more arguments at the accused's house. The accused allowed AD to hug him and he said she was lucky she was female because otherwise he would be bashing the shit out of her. He made allegations of infidelity and demanded to see her phone. She went to leave and he grabbed her by the collar and threw her on the lounge which is the first common assault charge ( the Crown Case Statement states this is a s166 related matter, so a matter in addition to what is charged on the indictment). 8. The complainant again tried to leave and the accused stopped her, and he pulled all her clothes off which is a second common assault charge (the Crown Case Statement states is a s166 related matter so again a matter in addition to what is charged on the indictment). 9. He then pulled her to the floor and put her on the floor facedown and said he was going to get something to tie her up and returned with a dark leather belt. The complainant states the accused used the belt and whipped her on her back, bum and she told him it hurt, and he whipped her vagina. The accused said this was by way of punishment. This is count 2 on the indictment, a charge of common assault. 10. After the whipping ceased, the accused is alleged to have grabbed the complainant's jaw and pulled her head to face him and then spat on her face. This is count 3, a charge of common assault. 11. The accused then forced the complainant onto her knees and forced her head towards his groin and his erect penis into her mouth. This is the first count of sexual intercourse without consent concerning this complainant, and is count 4 on the indictment. 12. The accused then moved AD onto the couch so she was lying face down with her legs off the end of the couch. He had his hands around her throat applying pressure. He then penetrated her vagina with his penis thrusting hard and at one point causing her to fall onto the floor where he continued to have sexual intercourse. This is count 5 on the indictment. 13. The accused then put three fingers into her mouth and down her throat. She tried to pull away and he then put his hands around her throat and applied pressure so that she felt dizzy hot and felt pressure behind her eyes as if they were going to pop out. He then put his fingers down her throat again. This is the choking count, count 6. 14. The tendency notice states the tendency sought to be proved is the accused's tendency to act in a particular way namely to use physical dominance to overpower and have intercourse with females with whom he had previously had a consensual sexual relationship without their consent knowing they were not consenting. Some principles 1. In the matter of R v Rodriguez-Saldana a tendency ruling was required. At [6] and following some relevant principles were set out which are as relevant in this case. Those passages were as follows: 2. [6] It assists in considering the questions raised in this matter to set out some uncontroversial general principles concerning tendency evidence. The following major points are taken from the judgment of Bell P in Taylor v R [2020] NSWCCA 355, omitting the citations made in that judgment, so that the par references are to the judgment of Taylor. 3. [7] The unstated premise of section 97 is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered; at [92]. 4. [8] The approach to the tendency issue is found in Hughes v the Queen (2017) 263 CLR 338 (Hughes at [41], Taylor at [105]) where it was said: "The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence". 1. [9] In a case of more than one complainant there ordinarily needs to be a feature which links the two; absent such a feature evidence of offending against A proves nothing but that; and that mere fact is ordinarily not significantly probative of the accused having offended against B; at [109]. 2. [10] At [122] Bell P sets out a lengthy summary of the principles and of relevant inquiries to make in determining the tendency question, from which for present purposes I note the following: 1. What is the tendency asserted? 2. Is the evidence proffered evidence of that tendency? 3. If so, is the evidence of probative value, that is, per s55 of the Evidence Act? 4. If yes, is the probative value significant as per section 97, that is, more than "just" relevant; that is, will it rationally affect the likelihood of the fact in issue to a significant extent? 5. The assessment is carried out assuming the Crown evidence is accepted. 6. It need not be strikingly similar, but the closer the similarity the more significant and probative it is likely to be. 7. Similarity can be circumstances in which conduct occurred as much as the conduct itself. 8. Significance may be affected by: 1. The number of alleged incidents. 2. Similarity. 3. Lapse of time from the tendency evidence to the alleged offending. 4. Nature of relationship between the tendency witness and complainant. 1. Tendency evidence is inherently prejudicial. 2. Unfair prejudice in 101(2) is a real risk a jury will misuse evidence by irrational response or giving it more weight than it deserves. 1. The tendency alleged is set out above. It is stated in the notice as one tendency. For the reasons that follow that one rolled up tendency is not established, however the tendency to sexually assault women the accused has a consensual sexual relationship is established. The tendency notice refers to the following characteristics: 1. The tendency is to act in a particular way. 2. To use physical dominance; 3. To overpower; 4. To have intercourse with females; 5. With whom he had previously had a consensual sexual relationship. 1. The essence of the tendency argument is of the alleged sexual assault occurring with females with whom the accused had a consensual sexual relationship. That the accused used physical dominance to overpower the complainants is a feature in very many cases of sexual assault, and so to allege "overpowering" or the "use of physical dominance" is more akin to simply saying the accused had offended before, rather than establishing a relevant tendency. 2. The evidence proposed by the Crown, which is to be taken at its highest, plainly establishes a tendency to sexually assault a person with whom the accused had previously had consensual sexual relations. The fact the complainants have been consenting sexual partners of the accused provides the link referred to at [9] of Taylor above. 3. Beyond that characteristic, the circumstances leading up to the alleged offending are very different. In respect of count 1 the offending occurs when the complainant and accused are consensually lying in the accused's bedroom, the accused naked, and the complainant wearing her underwear and a top. They had both been drinking and had consumed psilocybin. There was no suggestion of aggression or assault prior to the offending, and until moments before the alleged penetration, the complainant believed the accused was joking. In contrast the 2 counts of sexual assault alleged by AD occur after 4 earlier common assaults. The way in which the alleged overpowering and physical dominance occurs is so dissimilar that the evidence in this regard, that is, beyond the fact of the complainant having previously had consensual sex with the accused, is of little probative value. Not only is the actual overpowering and physical dominance very dissimilar, but so too are the circumstances leading up to the overpowering and physical dominance. In the case of GM, the surrounding circumstances are not of conflict, but rather of consensual lying together; in the case of AD it is a situation of aggression and anger. 4. That said, there is a significant similarity in the core aspect of the alleged offending; a man in a sexual relationship with a woman sexually assaults her. Whilst the rolled up tendency set out in the notice is not established, the tendency just stated is established. 5. The accused argued that the lapse of time in the offending weakened the Crown argument. The time difference is some 6 months, long enough for the accused to begin a different relationship and for the circumstances to arise in which the argument is he has a tendency to offend. This aids rather than detracts from the Crown argument. I also take into account that there are only the two instances of this tendency being demonstrated. 6. In line with Hughes at [41] cited above, the second question to consider in determining whether the evidence has significant probative value is the extent to which the tendency makes more likely the facts making up the charged offence. The proposal of the Crown here is for the evidence relating to count 1 on the one hand, and counts 2-6 on the other, to be cross admissible, so the evidence for count 1 will include as tendency evidence the alleged facts of counts 2-6, and the evidence for counts 2-6 will include as tendency evidence the alleged facts of count 1. Strictly, it will be the evidence as to counts 4 and 5, and not 2-6, that should be spoken of, yet those alleged sexual assaults occurred in the circumstances of the happening of the other counts, and could not sensibly not be led. 7. This evidence of tendency which is established, is of the tendency to sexually assault an existing sexual partner. That evidence is more than just relevant; in the words of s97 it has significant probative value. 8. The main argument for the accused arises from the alleged facts of counts 2, 3 and 6, and the matters outlined as being related matters; that is, in order for the evidence as to counts 4 and 5 to be led in the case of count 1, there will unavoidably be the evidence of counts 2, 3 and 6 and the s166 matters. In permitting this evidence, there will be evidence beyond the found tendency, for it extends to the assaulting and choking of the complainant AD in a way that does not occur in the circumstances of count 1 concerning GM. Further it was submitted the facts alleged of counts 2-6 were appalling and insinuated the accused was a monster. 9. On the facts there is no meaningful similarity as would be expected of tendency evidence in those respects between count 1 and counts 4 and 5. The Crown, in what might be seen as an implicit acceptance of this evidence not being tendency, relied on Hammoud v R [2020] NSWCCA 339 to argue that such a difference in the level of aggression between the different acts alleged of the accused was not such as to give rise to unfair prejudice. I reject that argument because the facts of the present case are significantly different to Hammoud, in that the degree of violence here is more marked than in that case. This aspect is emphasised by the fact that in neither of the two instances considered in Hammoud was the circumstance of consensual behaviour immediately prior to the alleged offending. The passage relied on was in fact rejecting the accused's argument in that case that the conduct was too dissimilar to be tendency evidence, and not on the point of unfair prejudice. The Crown point here nevertheless, although unsuccessful, was reasonable to make. If the point from Hammoud at [69] is to say it is similar enough to be tendency, then for the reasons given at [25] above, it is rejected. 10. Whilst the description adopted by the accused of the conduct as appalling and of painting him as a monster may be overstated, it is evidence which shows him in a bad light, and significantly so. All tendency evidence will do so; but it is this part of the evidence that is not tendency evidence. There is a real risk of misuse of that evidence by the jury. 11. In arguing that all of the evidence going to counts 2-6 should be led in respect of count 1 (and also presumably the evidence as to the 2 common assaults on the s166 certificate) the Crown relied inter alia on the decision of SK. The point made was that prejudice is not tending to prove the offence was committed. With respect, that is not the accused's argument. The argument is that the prejudice is unfair prejudice by a misuse of the evidence. Part of the passages of Taylor set out above are relevant here and it is worth setting out again, when it was said: In a case of more than one complainant there ordinarily needs to be a feature which links the two; absent such a feature evidence of offending against A proves nothing but that; and that mere fact is ordinarily not significantly probative of the accused having offended against B; at [109]. 1. The alleged facts of this case are interesting because in a sense they do and they do not establish tendency; they establish the tendency to offend against women with whom the offender has a consensual sexual relationship, but they show no other similarity, and indeed the manner of offending is otherwise vastly different. 2. It is that difference which gives rise to unfair prejudice, that is, a risk of the evidence being improperly used by the jury; the jury may misuse the evidence and if they accept counts 2 to 6, (and in particular, counts 2, 3 and 5) may simply punish the accused and find him guilty of count 1, or as it was described in Taylor, the misuse of the evidence by the jury may be by an irrational response to the evidence in question. And whilst the heightened description of the evidence given in submissions by the accused is not accepted, the evidence is of a type that means there is a risk an attempt to remedy the unfair prejudice by direction may be inadequate. The probative value of the tendency evidence, which is significant, does not outweigh this danger of unfair prejudice. In reaching this conclusion, that the alleged tendency by the tendency notice is asserted to extend to using physical dominance, and to overpower is noted. Yet as already noted above, they are features very common in cases of sexual assault, and the way that common feature occurs in these two cases is vastly different, and is not part of what has been found to be the established tendency. 3. In brief summary, if the alleged tendency is taken to be the "rolled up" tendency as set out in the Notice, the tendency is not established. If the alleged tendency is treated as being to sexually assault women with whom the accused was in a consensual sexual relationship then that tendency is established and has significant probative value, but that significant probative value does not substantially outweigh the prejudicial effect it may have on the accused. 4. For these reasons there should be a separate trial of count 1 and the order sought in the motion will be granted. The above reasons mean that the evidence of counts 2-6 cannot be led in respect of the trial for count 1, however, evidence of count 1 may be led as tendency evidence in the trial of counts 2-6, though that may not necessarily be so if the trial of count 1 occurs first and a not guilty verdict was the result. ORDERS 1. That count 1 be severed from the indictment. 2. That the evidence of counts 2-6 on the indictment is not admissible in the trial of count 1. 3. That the evidence of count 1 is admissible in the trial of counts 2-6, subject to any further application in the event the trial of count 1 occurs first and a not guilty verdict is delivered. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2023