Dixon v The King
[2025] NZCA 564
•24 October 2025 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA739/2024 |
| BETWEEN | JAXON DIXON |
| AND | THE KING |
| Hearing: | 6 October 2025 |
Court: | Palmer, van Bohemen and Gault JJ |
Counsel: | J C Hannam for Appellant |
Judgment: | 24 October 2025 at 2 pm |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by van Bohemen J)
Jaxon Dixon appeals his conviction on the charge of arson following a trial by jury in the District Court at New Plymouth in September 2024.[1] He also appeals the imposition of a protection order made when he was sentenced by Judge G F Hikaka on 25 October 2024 on the arson charge, and on one charge each of breaching a protection order[2] and attempting to pervert the course of justice,[3] to which he had pleaded guilty.[4]
[1]Crimes Act 1961, s 267(1)(b). Maximum penalty 14 years’ imprisonment.
[2]Family Violence Act 2018, ss 90(c) and 112(1)(a). Maximum penalty three years’ imprisonment.
[3]Crimes Act, ss 117(e) and 66(1). Maximum penalty seven years’ imprisonment.
[4]R v Dixon [2024] NZDC 25935.
Mr Dixon does not appeal the primary sentence of four years’ imprisonment for the three charges, or the reparation order of $3,620.70, made by Judge Hikaka.
Mr Dixon says the trial that led to his conviction on the arson charge was unfair on three grounds. The grounds are:
(a)propensity evidence was introduced by the victim in her evidence in chief about an earlier arson event that was not prosecuted or proven, which may have caused prejudice against Mr Dixon;
(b)in re-examination, the victim was asked why she thought Mr Dixon had been doing other things to harass her, which had the effect of introducing propensity evidence by speculation; and
(c)the prosecution case relied on cellphone polling data which contained several errors and called into question the accuracy of the evidence.
Mr Dixon also says there was an insufficient evidential basis for the Judge to conclude that the victim and Mr Dixon were in a close personal relationship, which was the basis on which the protection order was imposed.
Relevant background
In his sentencing notes, the Judge described the relationship between the victim and Mr Dixon as follows:[5]
[3] … The relationship between you and the victim of the charges began after a Tinder exchange in 2017. The complainant in the arson trial described the relationship as “very close”. … She said you were her “best friend”. It was a sexual relationship. It continued for about a year to a year and a half. When it ended, you were very upset. You threatened suicide and that appeared to be what led the complainant to cut off contact with you.
[4] That did not end your involvement with the complainant, however. That is shown by a number of convictions you accumulated. …
[5]R v Dixon, above n 4.
The Judge summarised Mr Dixon’s three convictions for causing harm by digital communications in January 2022; the service on Mr Dixon of a protection order on 28 January 2022; a breach of that order on 24 March 2022, for which Mr Dixon was found guilty on 4 September 2023; and Mr Dixon’s guilty plea to a further breach of the order in September 2023 and to a related charge of attempting to pervert the course of justice.[6]
[6]At [4]–[6] and [8].
The Judge described the offending that gave rise to the convictions for causing harm by digital communications as follows:
[14] … You created an advertisement using intimate photos that she had shared for you only. You used those to create not once but three times, sites that members of the public could access through the internet. Those photos and the sites created an advertisement using her business contact as a point of contact and listed various sexual acts that the victim could perform and the prices for those acts. That led to her contacting the police and the police having the advertisements taken down.
[15] After the first one was taken down, you got straight back into it with the next two offences of the same sort. Members of the public, one in particular, turned up at the victim’s address to make good on what the advertisement said.
[16] You set all that up by what you did, using your internet skills. Not only was there, what appears behind it, the motivation to humiliate and degrade the victim, but it also was indicative of a high level of manipulation and a high level of premeditation and planning. You could not have done all of that without considerable attention to how it would be done and the process by which you would ensure that those who responded to the advertisements had the ability to make direct contact with the victim.
The Judge described the evidence of the arson, which occurred in the early hours of 17 September 2022, as follows:
[20] The circumstantial evidence was presented by the investigating detective. He referred to CCTV footage of this particular part of the New Plymouth city area … There are four cameras there. One of the cameras captured a view of a number plate of a motor vehicle. Inquiries were made with respect to that number plate which showed what was visible to the camera, … matched a … Chevy. That obviously was not the car that was also captured on camera. The detective expanded the inquiries with Land Transport and it disclosed that, and it could be seen on the image, the first letter and final digit of the number plate had been obscured, they were hidden.
[21] The actual number plate was [of] a car linked to you. It was registered to Jaxon Dixon, also known as Shay Mahon, and Shay Mahon was the name you used at the time of the relationship with the victim. You told the report writer that you had changed your name by deed poll in 2022 – an interesting additional bit of information – and you just nodded that yes that was the case.
[22] Other aspects of the evidence the jury heard showed this vehicle driving past the victim’s address, this vehicle then being parked at some distance from her address. A hooded figure walking toward the victim’s street, walking down the street and past her vehicle which was parked immediately in front of the dwelling. The same figure walked back past and then, at one stage, placed a bag at the right rear wheel of her vehicle. From the fire investigator’s evidence that bag contained fire starters and various flammable materials … and then the hooded figure again is seen in camera view. Eventually a glow from where the bag had been placed could be seen and that glow expanded into what was obviously a fire. The hooded figure then returned to the vehicle that had been parked at a distance and drove out of town. Thereafter, the video footage showed the Fire Service attending and the fire extinguished.
[23] The victim’s dog barked causing the victim to wake. The victim saw the glow outside and saw that the fire had taken hold of the back right rear wheel of her vehicle. She was able to alert her … sister who was staying with her in the bedroom close to where her car was parked. Her statement says that she … fell part way down the stairs in order to get out of the building.
When directing the jury on the propensity evidence adduced at trial in his summing up, the Judge said the following:
[17] Now you have got the admission of facts when it comes to previous convictions and those convictions relate to a behaviour that the defendant accepted as proven, pleaded guilty or was found guilty and convictions were entered. Those details are not only in the admission of facts but also in the nature of some of what’s there also and the complainant’s evidence when she was asked about events in her own words.
[18] So that sort of evidence is called propensity evidence and what that means is a person’s propensity is a tendency to have a particular state of mind or act in a particular way. That is the legal definition of it and obviously by way of those convictions the Crown rely in part on that evidence of the previous convictions to help prove this charge.
[19] Now as defence counsel Mr Hannam has said that is in the past. It does not actually prove these charges and he is quite right. The point of you being able to have that evidence available to you is whether you believe there is a propensity in this case, at the time of the alleged offending that goes toward the defendant having a particular state of mind and a tendency in a sense to make life difficult for the complainant.
[20] Now that is what the Crown says that he had a propensity to act in the way that he did to make life difficult for the complainant and that it was well thought out, well planned, ultimately intrusive and destructive.
[21] Now the Crown says that this propensity evidence makes it more likely that the accused committed the crime for which he is now charged so you must consider whether the evidence actually does prove that the accused has that propensity and if so how much such propensity helps you decide whether he is guilty of this charge. So if you find first that the propensity exists, that tendency is there then you may use it as part of the total evidence in this case and use it in assessing the issues, the reliability of what the evidence presented to you … and ultimately whether the Crown’s proven the accused’s guilt. It is for you to decide what weight you should give that propensity evidence as part, as I’ve said considering all the evidence. If you are not satisfied that propensity existed then you leave that evidence entirely out of consideration.
[22] Also you are not to reason that because Mr Dixon has behaved in a certain way on a previous occasion that he must be guilty on this occasion. The propensity to offend by itself cannot be sufficient to make you sure of his guilt. Propensity is only one [item] of the evidence to be considered with all the evidence. Do not allow any such propensity to prejudice you against Mr Dixon because as Mr Hannam has pointed out it does have a prejudicial effect but as to presenting a basis for you to find him guilty on this charge, that’s where you need to be very careful and you can only do that if you are satisfied that propensity existed and then you consider it as one aspect of all the evidence that is presented on this charge.
Appeal against conviction
Under s 232(2)(c) of the Criminal Procedure Act 2011, the court must allow an appeal against conviction if a miscarriage of justice has occurred for any reason. Otherwise, in this case, the court must dismiss the appeal.[7] A miscarriage of justice means:[8]
… any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
Submissions for Mr Dixon
[7]Criminal Procedure Act 2011, s 232(3).
[8]Section 232(4).
Mr Hannam, for Mr Dixon, submits that the victim’s reference to an earlier arson event when giving evidence in chief suggested Mr Dixon had been responsible for the earlier arson. Mr Hannam says this evidence was purely prejudicial and should not have been before the jury.
On the second ground of appeal, Mr Hannam submits that the prosecutor’s question to the victim in re-examination as to why she thought Mr Dixon was doing other things to harass her created a lingering prejudice, even though this line of questioning was prevented by the Judge. Mr Hannam submits this prejudice was highlighted in the Crown’s closing submissions, which referred to Mr Dixon as being “obsessed” with the victim.
In relation to the first two grounds, Mr Hannam submits the Judge’s summing up directions did not appropriately address the propensity evidence and prejudicial evidence that was improperly put to the jury.
On the third ground of appeal, Mr Hannam submits the cellphone polling data was flawed and unreliable and should have been excluded. He also says the police witness acknowledged he was not an expert on this evidence and was unable to explain the anomalies in the data.
Submissions for the Crown
Ms Wynne, for the Crown, submits none of the grounds resulted in errors which caused a miscarriage of justice. She submits all evidence was properly given or appropriately dealt with by the Judge.
Ms Wynne submits the mention of the earlier arson was unprompted and was not linked to Mr Dixon. She notes that, in cross-examination, the defence chose to highlight the reference to the earlier arson and also referenced it in their closing submissions as part of their theory that the victim had sought to blame Mr Dixon for her difficulties. Ms Wynne submits that, by drawing attention to the arson, the defence invited the victim to connect the event with Mr Dixon.
Ms Wynne submits no unfairness arose in relation to the second ground of appeal. The prosecution questioned the victim about Mr Dixon’s further harassment after the defence had questioned the victim about the previous arson and had put to her that she tended to hold Mr Dixon responsible for bad things that occurred. Therefore, Mr Dixon had opened himself up to further exploration of the victim’s assumptions. Ms Wynne notes that, following objection by defence counsel, the Judge directed that the line of questioning not be pursued, which prevented the Crown from replying to the defence’s assertions.
Ms Wynne submits any characterisations made of Mr Dixon as obsessed were fair and based on a solid evidential foundation.
In relation to the third ground of appeal, Ms Wynne notes that Mr Dixon did not originally challenge the cellphone polling evidence. Ms Wynne submits that, as a detective of 16 years’ experience, the police witness was sufficiently qualified to answer the questions of the jury relating to anomalies in the data set, and the reliability of cellphone polling data generally. She notes that the anomalies in the cellphone data also related to a period well after Mr Dixon had been polled as driving towards and back from Taranaki and had no bearing on the evidence of those movements.
Analysis
We are satisfied there is nothing in any of the points raised in the three grounds of appeal that justify allowing the appeal.
First ground of appeal
The victim’s reference to the earlier arson arose in her response to a question from the prosecutor about a photo in the evidential photo booklet. In response to the prosecutor’s question, “[c]an we see a camera in that picture?”, the victim said:
A.Yes, there was a camera, um, that we had set up on the shed. There’s also ones going around the back of the house, um, we’d set all these up as this was the second time that my car had been set on fire in my driveway.
The prosecutor did not pursue the reference to the earlier arson and neither the prosecutor nor the victim made any reference to Mr Dixon in relation to the earlier arson.
Shortly afterwards, Mr Hannam started cross-examining the victim. He began by asking the victim about her evidence that harassment had occurred before early 2022. He obtained her agreement to the proposition that things had settled down between the victim and Mr Dixon by September 2022, although the victim added that she would not say they had stopped.
Mr Hannam then asked the victim if she was saying that other things had occurred between March and September, and put to the victim that she could not say that other things that had occurred in that period had been because of Mr Dixon. The following exchange occurred:
A. Just give me a moment please. I’m just thinking about my response. I think that, unfortunately, you require a lot of evidence to be able to say that it is someone, and no, I did not have that evidence. However, I would say yes, it was Jaxon Dixon.
Q. You suspect that because if it was any more than that you would have gone to the police with that information, wouldn’t you?
A. There was a lot of information that I went to the police for that was dropped.
Q. And one of those is this mention of another time that your car was set on fire, isn’t it?
A. Correct.
Q. Yes.
A. Which there is a video recording which the police have and this case has not been completely dropped, however there just is not currently enough evidence for it, though it is still as I believe being investigated, as in the phone call there is a lot of evidence to suggest that Jaxon Dixon also lit my car on fire then.
Q. … the reality is if something bad happens to you, you have a tendency to think that it’s Jaxon Dixon or Shay Mahon who has done it?
A. I have evidence and he has pleaded guilty and both been found guilty, so I disagree with that as otherwise he would not have been found or pleaded guilty, would he? So therefore, he did do it, didn’t he?
Q. We are talking about those events where you suspect he is responsible for things, but you accept that there is not the evidence to support that?
A. Yet.
Q. Okay, all right.
It is apparent Mr Hannam deliberately decided to ask the victim about the earlier arson and invited the victim to link that event to Mr Dixon. We agree with Ms Wynne that such questions appeared to be part of a strategy of seeking to impute to the victim a tendency to blame Mr Dixon for her difficulties and to raise in the minds of the jury a doubt as to Mr Dixon’s responsibility for the arson of which he was charged.
Whatever the merits of such a strategy, any prejudice that arose from the reference to the earlier arson was largely the consequence of Mr Hannam’s questions and not the result of the victim’s passing reference to the earlier arson. It cannot be the case that a defendant, having elected to pursue a line of questioning directed to eliciting a victim’s views on whom they consider to be responsible for earlier alleged offending, can then say the trial was rendered unfair by that election. Short of incompetence — which is not and could not credibly be asserted — the references to the earlier arson in response to defence questions cannot be said to have resulted in an unfair trial.
We are also satisfied that the prosecutor’s description, in her closing remarks, of Mr Dixon being obsessed by the victim, was open to her on the evidence of Mr Dixon’s behaviour in the period leading up to the arson on 17 September 2022 and afterwards, as later summarised by the Judge in his sentencing notes.
Second ground of appeal
The relevant exchange between the prosecutor and the victim was as follows:
Q. And it has also been put to you that you suspect it is Jaxon Dixon doing things?
A. Yes.
Q. What made you think it was Jaxon Dixon doing those things?
A. Sorry, I’m just trying to –
At this point, Mr Hannam objected and, in a discussion in chambers, the Judge directed that this line of questioning not be continued, even though, as Mr Hannam accepted before us, the prosecutor’s questions related directly to matters raised in cross-examination.
Nothing was said in that exchange that could be considered to be adding to the prejudice that arose from the questions of defence counsel.
For that reason, we are satisfied that the Judge was not required to refer specifically to the evidence of the earlier arson or the victim’s views as to who was responsible for that arson and other alleged harassment when directing the jury on propensity evidence. We are satisfied that the general reference to the victim’s evidence at [17] of the summing up and the general directions on how to assess propensity evidence were sufficient. To have gone further would have risked drawing further attention to that evidence, and would have been inconsistent with Mr Hannam’s objection to the Crown’s proposed re-examination and the Judge’s direction that the line of questioning should not continue.
Third ground of appeal
It is common ground that there were two anomalies in the cellphone polling data. On two occasions, the phone was recorded as polling simultaneously at two different locations. That is:
(a)at 16.27:37 on 17 September 2022, the phone was recorded as polling simultaneously at cell towers at Tongapōrutu and Morrinsville; and
(b)at 17.06:57 on 17 September 2022, the phone was recorded as polling simultaneously at cell towers at Tongapōrutu and Te Aroha.
The jury asked a question about the reliability of the data in view of these discrepancies. The question was put to the police witness as part of his evidence. The witness sought to explain the double entries by reference to bank statements in which transactions for purchases are recorded at the time funds are withdrawn from an account even if actual purchases occur earlier. In cross‑examination, the witness acknowledged that at least one of the two entries for the double recordings was wrong, while maintaining that electronic data is generally quite reliable. Accordingly, the anomalies, and such explanation as the police witness was able to provide, were squarely before the jury to consider.
In any event and whatever the reason for the simultaneous recordings, as Ms Wynne says, both instances related to a time period well after Mr Dixon was said to have driven from Hamilton/Morrinsville to New Plymouth and back again. There were no anomalous recordings for the essential part of that journey which, according to the polling data, took place from between 23.04 on 16 September 2022 and 8.18 on 17 September 2022.
Whatever the reasons for the anomalies, the fact anomalies were recorded some eight hours after the relevant period does not provide an adequate basis for calling into question the reliability of the data which recorded Mr Dixon’s movements during the period the alleged offending is said to have occurred. Nor does the fact the police witness was unable to provide a satisfactory explanation for the anomalies provide any basis for questioning the reliability of the data recording Mr Dixon’s earlier movements.
More generally, we are satisfied the combined weight of the evidence of Mr Dixon’s car being in the street where the complainant lived on the night of the arson, the polling data showing that Mr Dixon had passed twice through a point on the route between Hamilton/Morrinsville at times on either side of the arson, and Mr Dixon’s past behaviour provide a sufficient basis for the jury to be sure Mr Dixon committed the arson.
We do not consider any of the matters raised by Mr Hannam give rise to a real risk the outcome of the trial was affected or resulted in an unfair trial.
Appeal against sentence
Under s 250(2) of the Criminal Procedure Act, the court must allow an appeal against sentence if satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.[9]
[9]Criminal Procedure Act, s 250(3).
It is well-established that an appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower court’s sentencing discretion.[10]
Sentence imposed in the District Court
[10]R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[139]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; and Tamihana v R [2015] NZCA 169 at [14].
In this section of the judgment, we address only Mr Dixon’s appeal against the protection order.
As recorded above, the Judge began his sentencing remarks by outlining the nature of Mr Dixon’s previous relationship with, and offending against, the victim. After deciding on the sentence of imprisonment to be imposed, the Judge considered whether a protection order should be imposed. He stated:
[67] In a “close personal relationship”, the Court has to have regard to the nature and intensity of the relationship and in particular the amount of time spent together, place or places where the time was ordinarily spent and the manner in which the time was ordinarily spent and the duration of the relationship. I have already referred to aspects of that.
[68] There was an intimate sexual relationship coupled with you being described as at one time a “best friend,” ongoing telephone contact, albeit what was at some point described as an open relationship. Nonetheless, there was enough trust and confidence in the relationship for her to provide you with intimate photos of herself. That in my view enhances what is within what I regard as the nature and intensity of the relationship.
[69] One would not share such images, if not in a “close personal relationship”. There was a level of trust and confidence in the other person in the relationship leading to those photographs being shared. You used them to offend against the victim, which means you breached the trust.
[70] I am satisfied on the basis of the definition of “close personal relationship,” your history within the relationship, including those areas of the relationship that you have admitted to by your own count in spite of your concern about the nature of the relationship.
Relevant provisions of Sentencing Act 2002 and Family Violence Act 2018
Under s 123A of the Sentencing Act 2002, “family relationship” has the meaning given in s 12 of the Family Violence Act 2018, and “family violence offence” means an offence under any enactment, including the Family Violence Act, which involves “family violence” as defined by s 9 of the Family Violence Act.
Section 123B of the Sentencing Act provides that the Court may make a protection order if an offender has been convicted of (or discharged without conviction for) a family violence offence; there is not currently in force a protection order against the offender under the Family Violence Act for the protection of the victim of the offence; the Court is satisfied that the order is necessary to protect the victim; and the victim does not object to the making of the order.
Under s 9 of the Family Violence Act, “family violence” means violence inflicted against a person by someone with whom that person is, or has been, in a family relationship. “Violence” is defined in the same section to mean all or any of physical abuse, sexual abuse or psychological abuse.
Under s 12(d) of the Family Violence Act, person A is in a family relationship with person B if they have a close personal relationship with person B.
Section 14(3) of the Family Violence Act provides that, in determining whether person A has a close personal relationship with person B, the court must have regard to the “nature and intensity of the relationship” and, in particular, “the amount of time A and B spend together”, “the place or places where that time is ordinarily spent”, and “the manner in which that time is ordinarily spent”. The court must also have regard to the duration of the relationship. Pursuant to s 14(5), the court may also have regard to other factors.
Submissions
Mr Hannam submits that the protection order was imposed against an information vacuum in which there was inadequate information from which the Judge could conclude that Mr Dixon was in a relationship with the victim. In particular, he says there was no information on the amount of time Mr Dixon and the victim spent together, the place or places that time together was spent or the manner in which that time was ordinarily spent. He also noted that Mr Dixon had on another occasion denied being in a relationship with the victim. Accordingly, he submits that a protection order was not appropriate.
Ms Wynne submits the Judge was correct in making a protection order. She notes the observations of the Judge that there had been an intimate sexual relationship between Mr Dixon and the victim, the pair were seeing each other for approximately one year, and the victim had described Mr Dixon as being her best friend.
Analysis
There was no protection order in force when Judge Hikaka sentenced Mr Dixon. As Mr Hannam helpfully explained, the protection order to which Mr Dixon had been subject had remained a temporary order for three years but had lapsed, enabling Judge Hikaka to impose a protection order if he considered it appropriate.
As recorded by Judge Hikaka, the breaches of the temporary protection order to which Mr Dixon pleaded guilty and for which he was being sentenced involved family violence. The summary of facts, which was the basis of Mr Dixon’s guilty plea, included Mr Dixon encouraging a person to call the victim to tell her to remove herself as a witness in Mr Dixon’s trial and to make unspecified threats to the victim’s wellbeing if she did not. That is patently psychological abuse. Mr Hannam does not submit otherwise.
The only issue in contention is whether the victim and Mr Dixon were in a close personal relationship.
At [67] of his sentencing notes, Judge Hikaka summarised the requirements of s 14(3) of the Family Violence Act. While he did not explicitly consider the amount of time the victim and Mr Dixon spent together, the place or places that time was ordinarily spent, and the manner in which that time was spent, those factors were implicit in his consideration of the nature and intensity of the relationship: an intimate sexual relationship coupled with Mr Dixon being described as a “best friend”, ongoing telephone contact, albeit in what was described as an open relationship, and the provision by the victim of intimate photos of herself.
We are satisfied these matters provided sufficient basis for the Judge to conclude that Mr Dixon and the victim were in a close personal relationship and to impose a protection order.
Result
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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