R v Johnston (a pseudonym) [2019] NSWDC 61

R v Johnston (a pseudonym) [2019] NSWDC 61

Separate trials should be ordered because the proposed tendency evidence from Christine White is not admissible in the trial of counts relating to Monika Brown and Natalie Green, and vice versa, due to significant differences in nature, seriousness, and circumstances of offences. Tendency evidence is admissible only within trials relating to individual complainants, subject to better particulars. The risk of prejudice outweighs any utility of hearing all counts together.

Parties
Offender: Phillip Johnston; Prosecutor: Director of Public Prosecutions
Jurisdiction
Australia
Judgment Date
25 February 2019
Procedural Posture
Criminal / Pre Trial Interlocutory Orders
Outcome
Application for separation of trials granted; tendency evidence allowed in limited scope.
Legal Topics
Separate Trials, Tendency Evidence, Cross Admissibility, Prejudicial Versus Probative Value
Criminal Law Evidence Separate Trials Tendency Evidence Cross Admissibility Prejudicial Versus Probative Value

Case Brief

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Parties

Phillip Johnston

Offender

Director of Public Prosecutions

Prosecutor

Procedural Posture

Criminal / Pre Trial Interlocutory Orders

Legal Issues

  1. 1 Should separate trials be ordered for Counts 1 to 6 and 7 to 11?
  2. 2 Is tendency evidence admissible across all counts or only certain counts?
  3. 3 Does cross admissibility apply between complainants?

Ratio Decidendi

Separate trials should be ordered because the proposed tendency evidence from Christine White is not admissible in the trial of counts relating to Monika Brown and Natalie Green, and vice versa, due to significant differences in nature, seriousness, and circumstances of offences. Tendency evidence is admissible only within trials relating to individual complainants, subject to better particulars. The risk of prejudice outweighs any utility of hearing all counts together.

Court Disposition

Application for separation of trials granted; tendency evidence allowed in limited scope.

Orders

  • Counts 7 to 11 are separated from the proposed indictment.
  • Tendency evidence about the accused's alleged sexual interest in Christine and tendency to act on that interest is admissible in the proposed trial of Counts 1 to 6.