R v Dixon [2017] NZDC 28095

Published 08 August 2018

Application for s 147 discharge — application for cross-propensity evidence — propensity evidence — R v Flyger [2001] 2 NZLR 721 — Parris v Attorney General [2004] 1 NZLR 519 — Gorgus v R [2012] NZCA 415. The court considered two applications in respect of the burglary charges faced by the defendant. The defence sought to have the defendant discharged under s 147 on each of the seven charges faced. The crown sought the admission of propensity evidence in respect of those charges. The court noted that it had previously indicated that it intended to discharge the defendant on two of the charges for insufficient evidence. The defence argued that all of the charges should be dismissed on the grounds that the evidence relied on by the crown only provided "moderate support" of the defendant's identity and that a properly directed jury could not convict based on that evidence. The crown disagreed and argued that it will ask the jury to work from the strongest charge against the defendant and use circumstantial evidence on a cross propensity analysis. The court dismissed the charges relating to the first two addresses as no property from those addresses was located in the defendant's possession and that there was insufficient evidence for a properly directed jury to convict on those charges. In respect of the remaining charges, the court dismissed the application to have the charges dismissed as there was sufficient evidence for a trial to commence including the possession of property from the addresses that the remaining charges related to in the defendant's property. The crown's application for cross-propensity evidence to be admitted in respect of those remaining charges was also granted by the court having found that there was considerable circumstantial evidence which went beyond that of being a mere coincidence. Judgment Date: 11 December 2017.