District Court New South Wales Medium Neutral Citation: R v Dixon (a pseudonym) No.2 [2024] NSWDC 219 Hearing dates: 13 June 2024 Date of orders: 14 June 2024 Decision date: 14 June 2024 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [Orders] Catchwords: CRIMINAL PROCEDURE — Stay of proceedings — Temporary Legislation Cited: Evidence Act 1995 Cases Cited: 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 Category: Procedural rulings Parties: Rex (The Crown) Dixon (a pseudonym) (The Offender) Representation: Boenisch for the Director of the Office of Public Prosecutions Cusack for The Offender File Number(s): 2022/148556, 2022/00184667 JUDGMENT 1. By a notice of motion dated 31 May 2024 the accused seeks a stay of the proceedings in which the complainant AD makes five allegations ("the AD trial") until the trial in which the complainant GM ("the GM trial") makes one allegation is complete. 2. Initially all 6 counts were on the one indictment. By an earlier order made on 7 September 2023 the allegation made by GM which had been count 1 was severed from the indictment. The reason for that severance was the ruling concerning tendency evidence was that the evidence of counts 2-6 on the indictment was not admissible in the trial of count 1 but that the evidence of count 1 was admissible in the trial of counts 2-6 for the reasons given in that earlier judgment; see R v Dixon (a pseudonym) [2023] NSWDC 368. That judgment determined that the tendency asserted in the Crown's tendency notice had not been made out but also found there had been established a tendency of the accused as identified at [31] of the earlier judgment, namely as stated there "a man in a sexual relationship with a woman sexually assaults her"; that is the evidence was capable of satisfying a jury that the accused had a tendency to sexually assault a woman with whom he is in a sexual relationship. 3. In the closing paragraph of the earlier ruling it was said the evidence of count 1 (the complaint of GM) was 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. For the avoidance of doubt, as there was some suggestion in the submissions otherwise, there was no suggestion in the earlier judgment as to which of the now two trials should proceed first. The ruling as to the admissibility of the evidence of GM in the AD trial concerning the complaints of AD with its proviso just outlined did not carry with it any direction that the AD trial of counts 2 to 6 based on the complaint of AD should proceed first. 4. In the event the Crown has determined that the AD trial should proceed first. It is that decision that has been met by this application. 5. The asserted facts of all six allegations are canvassed in the earlier judgment; see from [7]. In short GM alleges sexual assault by the accused on 5 December 2021 at a time at which the accused and GM were parties to an ongoing consensual sexual relationship albeit somewhat intermittent. The allegations of AD arise from events on 14 May 2022 and allege conduct by the accused of sexual assault but with significantly greater violence than is alleged by GM. 6. The accused put a number of arguments. Firstly, that to run the AD trial first would be an abuse of process because it will allow as tendency evidence the allegations of GM before they are tested. Put another way the argument is that if the GM trial was to be conducted first and if the verdict was not guilty then, on the argument of the accused, it may well be that the tendency evidence could no longer be led due to the principle of incontrovertibility. 7. Secondly it was argued that by running the AD trial first then the accused is prejudiced because in order to meet the tendency case against him puts him in the position potentially of needing to give evidence as to the allegations of GM, thus circumventing his right to silence in that regard. 8. A third argument was that the jury would become aware of the charges relating to GM. Whether or not such evidence would be led might be open to question; certainly the evidence relied on to found GM's allegations would be led but whether the jury would necessarily be informed by evidence that charges were pending is debatable. 9. In support of these submissions the accused relied upon ELD v R [2005] NSWCCA 446 for the proposition that where a charge of indecent assault had resulted in acquittal it was said by Justice Sully that that complainant's evidence had no probative force in respect of other allegations concerning another complainant. Similarly in R v Young [1998] 1 VR 402 it was noted that evidence concerning three counts of indecent assault of which the accused was acquitted was inadmissible at the second trial. In short, to adduce that evidence was to deny the accused the full benefit of his acquittals. I note that the judgment of Barwick CJ in R v Storey (1978) 22 ALR 47 at p52-52 was to similar effect. 10. The Crown stated its position to be firstly that it is a matter for the Director as to what trials should be conducted in which order. Of that there is no doubt but that of course is not some power to be exercised free of any opposition and the accused here by seeking a temporary stay seeks to oppose that decision. 11. More substantively the Crown argues that by conducting the AD trial first the matters are far less complicated. This is because should the trial of AD be conducted first there is no issue owing to the earlier ruling that the proposed tendency evidence from GM would be admissible. This is said to give efficacy to the earlier ruling. To run the trial of GM first potentially gives rise to a further argument in the event of an acquittal as to what may be made of the proposed tendency evidence of GM. That is there may well be an argument that despite the acquittal of the accused in respect of the allegation of GM that evidence in whole or in part may, on the Crown's argument, still be admissible, a position that would likely be opposed by the accused. In any event it was submitted that the case relied upon by the accused of ELD is not authority that evidence of the type of GM, in the event of an acquittal, would not be permitted in the later trial of AD. 12. The passages of ELD that the Crown is referring to commence at [20]. The submission of the Crown is quite correct. What those passages and the various authorities there referred to demonstrate is that evidence of allegations from an earlier trial in which the accused was found not guilty may be admitted into evidence in the later trial in respect of what is alleged to be similar conduct or where the evidence would be considered to be tendency evidence from the first trial in which there was the acquittal. This can be for the reason that the evidence is admissible for some other purpose besides the tendency as was discussed in Garrett v The Queen [1997] 139 CLR 437, or as tendency evidence. The difficulty for the Crown however is that in the passages that then follow in ELD and when considering sections 97 and 101 and indeed 137 of the Evidence Act it was held that the evidence of the complainant of the earlier trial would have very limited if any probative value owing to the jury having rejected her evidence. It is perhaps curious in the present case because the evidence has already been ruled admissible however in the event of the trial of GM proceeding first and an acquittal being arrived at there would no doubt be a further application by the accused to exclude what had previously been permitted. 13. These considerations support the Crown's argument that by proceeding first with the AD trial the conduct of the two pieces of criminal litigation would be less complicated. The difficulty for the Crown in this argument however is that there has not been any argument made that would justify the prioritisation of a lack of complications over the goal of ensuring the accused is not deprived of a fair trial; that is, is the preferred course one which avoids a possible further pre trial application but at the cost of the first trial, the AD trial, consisting of evidence that, should there be an acquittal in the later GM trial, was evidence likely able to be viewed in the way described by Sully J in ELD, of no probative value and of significant unfair prejudice? 14. The Crown also relied on DPP v DL [2018] ACTCA 61 and R v Chase (a pseudonym) [2018] NSWCCA 71. Both those cases are considering as a question of law the meaning of section 101(2) of the Evidence Act. They are as a result both distinguishable from the present issue. That said there is reference in those cases to matters that are being considered presently. For example at [20] of DL it is recorded that the judge at first instance was persuaded not to allow tendency evidence which was the subject of another trial as charged matters on the basis that the accused may be compelled to reveal his defence and lose his right to silence. In DL the other case which had yet to be determined was the subject of proceedings in a different jurisdiction namely Queensland. In the case of Chase there had been a trial and verdicts of guilty entered and an appeal lodged and the question was whether the evidence in respect of the guilty verdicts could be led in the upcoming trial. The Court of Appeal considered that the matter said to give rise to prejudice involved a high level of speculation. 15. Not only is the legal question the subject of those cases different to the present but the factual circumstances are also different. In both of them there were other forces at play as to when it would be known what the ultimate fate of the tendency evidence would be; in one case whatever might be the situation concerning the Queensland proceedings and in the other whether or not the appeal would be successful. In the present case it had been proposed in the first instance that there be only one trial dealing with the charges based on the allegations of both complainants. The Crown presently has control as to the order in which these trials will be conducted; the two cases have been dealt with together and the expectation is that the trials run "back to back". 16. One argument of the Crown was that the accused was seeking to gain an evidentiary advantage which I infer is a reference to possibly the exclusion of the tendency evidence should there be an acquittal in respect of the GM allegation. I consider that the Crown has placed too much emphasis on a possible further application should the GM trial run first, an application that may not be contested depending on how that trial runs. It is noted by the accused that the evidence in that case rests entirely on GM. In doing so the Crown has in my view failed to give sufficient consideration to the impact of adopting the lesser complication route may have on the accused. That impact is in essence as contended for by the accused, namely that by running the AD trial first there will be tendency evidence heard by the jury which may not be admissible if the GM trial was to be conducted first. One answer to that by the Crown was to say if GM was to be rejected at her trial then it is likely that the jury in the AD trial would not place much if any weight on the tendency evidence. That approach in my view overlooks the inherent prejudicial effect of hearing a second allegation by a second complainant of a sexual assault even if the jury were to be of a mind that GM was not a persuasive witness. 17. Apart from removing the possibility of a further application, which might as already noted not even be contested depending on what transpires at the GM trial, running the AD trial first results in the possibility that a man is to be tried upon evidence that will include tendency evidence which, if the GM trial was held first and led to acquittal, may possibly not be admissible evidence in his trial. 18. Contrary to the Crown's submission, the accused is not seeking some evidentiary advantage, but rather seeks to be tried fairly. Although the Crown's intention is to avoid complications, that course results in a possible unfair evidentiary advantage to the Crown by ensuring there is evidence before the jury which, if the GM trial runs first, should likely not properly be before the jury. 19. All of the above considerations lead me to the conclusion that to conduct the trial of AD first is to create an unfairness upon the accused. There is no legitimate disadvantage to the Crown in requiring the case of GM to be heard first. 20. In respect of the power to grant a temporary stay of proceedings there was no suggestion of any lack of power in the court to make such an order in these circumstances should an unfairness be established. In terms of the basis on whether such an order should be made the accused referred to R v Medich (No. 38) [2018] NSWSC 322. At [50] Bellew J stated: As far as a temporary stay of proceedings is concerned, there is no doubt that the Court has the power to grant that remedy. The principles governing the exercise of the discretion to do so were summarised by Bathurst CJ (with the concurrence of R H Hulme J and myself) in MacDonald v R; Maitland v R (2016) 93 NSWLR 736; [2016] NSWCCA 306 at [140]: "It is well established that the court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness. However … a stay will only be granted to the extent necessary to relieve against unfair consequences." 1. The only relief sought is a temporary stay namely that the AD trial be stayed pending the determination of the GM trial. Such relief in my view is appropriate in the present case as it relieves against the unfair consequence of hearing the AD trial first as identified above. Order 1. That the trial of the accused based on the complaints of AD be stayed until the completion of the trial based on the complaint of GM. ********** 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: 14 June 2024