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

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

The rolled-up tendency asserted by the Crown was not established because the alleged use of physical dominance and overpowering was a feature common to many sexual assault cases and occurred in vastly different ways in the two sets of allegations. A narrower tendency to sexually assault women with whom the accused had a consensual sexual relationship was established and had significant probative value, but the evidence of counts 2-6 included assaulting and choking conduct that was not part of that tendency and created a real risk the jury would misuse the evidence in deciding count 1. That significant probative value did not outweigh the danger of unfair prejudice, so count 1 was severed...

Jurisdiction
Australia
Judgment Date
07 September 2023
Procedural Posture
Criminal / Notice of Motion for Severance of Count 1 From Indictment and Rulings on Admissibility of Tendency Evidence Before Trial
Outcome
Accused's motion granted; count 1 severed and admissibility orders made.
Legal Topics
['severance of Count on Indictment' 'admissibility of Evidence at Trial' 'tendency Evidence' 'unfair Prejudice' 'sexual Offences']
['criminal Procedure' 'evidence' 'criminal Law'] ['severance of Count on Indictment' 'admissibility of Evidence at Trial' 'tendency Evidence' 'unfair Prejudice' 'sexual Offences']

Case Brief

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Procedural Posture

Criminal / Notice of Motion for Severance of Count 1 From Indictment and Rulings on Admissibility of Tendency Evidence Before Trial

Legal Issues

  1. 1 ['Whether count 1 should be severed from and tried separately to counts 2-6 pursuant to section 21 of the Criminal Procedure Act 1986 (NSW).' 'Whether evidence relating to counts 2-6 was admissible as tendency evidence in the trial of count 1.' 'Whether evidence relating to count 1 was admissible as tendency evidence in the trial of counts 2-6.' 'Whether the significant probative value of the tendency evidence outweighed the danger of unfair prejudice to the accused.']

Ratio Decidendi

The rolled-up tendency asserted by the Crown was not established because the alleged use of physical dominance and overpowering was a feature common to many sexual assault cases and occurred in vastly different ways in the two sets of allegations. A narrower tendency to sexually assault women with whom the accused had a consensual sexual relationship was established and had significant probative value, but the evidence of counts 2-6 included assaulting and choking conduct that was not part of that tendency and created a real risk the jury would misuse the evidence in deciding count 1. That significant probative value did not outweigh the danger of unfair prejudice, so count 1 was severed...

Court Disposition

Accused's motion granted; count 1 severed and admissibility orders made.

Orders

  • ['That count 1 be severed from the indictment.' 'That the evidence of counts 2-6 on the indictment is not admissible in the trial of count 1.' '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...