Director of Public Prosecutions v Lodding
[2024] ACTSC 244
•24 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Lodding |
Citation: | [2024] ACTSC 244 |
Hearing Date: | 3 July 2024 |
Decision Date: | 24 July 2024 |
Reasons Date: | 31 July 2024 |
Before: | Taylor J |
Decision: | (1) The application in proceeding filed on 30 May 2024 is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application to adduce tendency evidence – whether exceptional circumstances exist – consideration of s 97A of the Evidence Act 2011 (ACT) – whether presumption of probative value can be rebutted – significant gap in time and differences between the offending – presumption rebutted – unfair prejudice outweighs probative value – tendency evidence inadmissible in the trial of the accused |
Legislation Cited: | Crimes Act 1900 (ACT), s 54(1) Evidence Act 2011 (ACT), ss 97, 97A, 101(2), 197A, pt 3.6 Legislation Act 2001 (ACT), Dictionary |
Cases Cited: | Davidson (a pseudonym) v The King [2024] NSWCCA Decision restricted [2023] NSWCCA 163 DPP v Duncan (A pseudonym) [2024] ACTSC 80 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v R (2016) [2016] HCA 14; 257 CLR 300 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R vGaray (No 2) [2020] ACTSC 331 Taylor v R [2020] NSWCCA 355 TL v The King [2022] HCA 35; 275 CLR 83 |
Parties: | Director of Public Prosecutions ( Crown) Christopher Adam Lodding ( Accused) |
Representation: | Counsel C Muthurajah ( DPP) S Pararajasingham ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Canberra Criminal Lawyers ( Accused) | |
File Number: | SCC 37 of 2024 |
TAYLOR J:
Introduction
1․The accused, Christopher Adam Lodding, has been charged with the following offence by way of indictment:
(a)Count 1 (CC023/10832): sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT) (the Crimes Act), with a maximum term of imprisonment of 12 years.
2․The prosecution sought an advance ruling under s 192A of the Evidence Act 2011 (ACT) (the Evidence Act) as to the admissibility of tendency evidence, pursuant to s 97 of the Evidence Act.
3․On 30 May 2024, the prosecution filed an application to adduce tendency evidence under pt 3.6 of the Evidence Act, relying on an Amended Tendency Notice filed 6 June 2024. The prosecution seeks leave to adduce evidence to demonstrate the following tendencies on the part of the accused:
(a)Tendency 1: to have a sexual interest in female children.
(b)Tendency 2: to use his intimate relationships to obtain access to female children so that he could engage or attempt to engage in sexual activities with them.
(c)Tendency 3: to act on that sexual interest to engage or attempting to engage in sexual conduct with female children by either:
(i)Touching them in an inappropriate sexual way;
(ii)Touching the child’s vaginal area;
(iii)Penetrating or attempt to penetrate the child’s vagina; and
(iv)Carrying out sexual acts or attempting sexual acts upon the child where there was a risk of detection.
4․The application to adduce tendency evidence was before me on 3 July 2024. While there is no trial date, the ruling will influence the nature and extent of the evidence the prosecution will adduce at the pre-trial stage. On 24 July 2024, I made the orders expressed at [54] with reasons to follow. These are those reasons.
Evidence sought to be adduced by the prosecution
5․The prosecution relies on the one count on the indictment, in addition to a further six separate uncharged acts, as tendency evidence.
| Incident Number | Relevant tendency | Summary of Incident |
| 1 (uncharged act) | (i) (ii) (iii)(a) (iii)(c) (iii)(d) | This incident occurred between 2002-2003 at an unknown address in Bateman’s Bay. The accused was driving a vehicle and Ms A was sitting in the front passenger seat at the time. The accused pulled into the driveway of his house and undid the button and zipper of his pants and pulled out his erect penis. The accused the attempted to pull Ms A’s hand towards his penis. Shortly after, he pulled Ms A’s pants down and tried to put his finger in her vagina. The accused then lifted Ms A up, out of her seat and put her on top of him. The accused then spread Ms A’s leg and tried to insert his penis into her vagina. |
| 2 (uncharged act) | (i) (ii) (iii)(c) (iii)(d) | This incident occurred sometime later on the same day as Incident 1, being sometime between 2002-2003 at an unknown address in Bateman’s Bay. While the accused and Ms A were sitting in the accused’s car, the accused attempted to insert his fingers into Ms A’s vagina. The accused stopped when he saw his friend, Graham Button approaching. |
| 3 (uncharged act) | (i) (ii) (iii)(c) (iii)(d) | This incident occurred sometime later on the same day as Incidents 1 and 2, being sometime between 2002-2003 at an unknown address in Bateman’s Bay. Ms A was on a mattress on the floor in the bedroom of the accused, next to the accused’s bed. The accused and Mrs Button were on the bed in the room. Mrs Button left the room to use the toilet. During this time, the accused reached down and tried to insert his fingers into Ms A’s vagina, underneath her pyjama pants. The accused stopped when Mrs Button entered the room. |
| 4 (uncharged act) | (i) (ii) (iii)(d) | This incident occurred sometime between 2002-2003 at an unknown address in Bateman’s Bay. At some point during Ms A’s visit to Bateman’s Bay, Mrs Button was at work and Ms A was at the accused’s home watching television. The accused’s mother or father was outside the home mowing the lawn. The accused pulled his pants down and told Ms A to look at him while he masturbated. The accused then pulled his pants up and took the remote control for the television. The accused put pornography on the television. The accused placed his hands either side of Ms A’s head and said “watch”. She was crying. |
| 5 (uncharged act) | (i) (ii) (iii)(a) (iii)(b) (iii)(d) | This incident occurred between 2002-2003 at an unknown address (Mrs Allens’ address) in Queanbeyan NSW. During this period, Ms A, Mrs Button and the accused were sharing a bedroom which contained a bunk bed with a single bed on the top and a double bed on the bottom. Whilst Ms A was putting on her pyjama pants, the accused approached her from behind and grabbed Ms A’s crotch area and rubbed her vagina. At this time, Ms A was only wearing underwear. The incident lasted for less than a minute. |
| 6 (uncharged act) | (i) (ii) (iii)(c) (iii)(d) | This incident occurred between 2002-2003 in Conder, ACT. The accused was driving Ms A to school. At this time, Ms A was seated in the front passenger seat. As the accused was driving, he used his left hand to attempt to insert his fingers into Ms A’s vagina under her underwear. The accused told Ms A to tell him if it hurts. |
| 7 (Count 1) | (i) (ii) (iii)(a) (iii)(b) (iii)(c) (iii)(d) | This incident occurred on 5 January 2022, between 10:00PM and 11:59PM, at the accused’s residence in Charnwood, ACT. Ms B, the complainant, was laying on her side on a mattress in a bedroom as she was feeling unwell after she had been drinking. The accused came into the bedroom whilst the complainant’s mother was in the room. After the complainant’s mother left the room, the accused rubbed the complainant’s left thigh until her mother re-entered the room. After the complainant’s mother left the room a second time the accused rubbed the complainant’s vagina through her tights. The accused then put his hands down the complainant’s tights and under her underwear and rubbed the complainant’s clitoris. The accused then inserted one finger in and out of the complainant’s vagina for 5-10 minutes. |
Background
The prosecution case
6․In summary the prosecution case is that the conduct relied upon for count 1 occurred in the context of the accused being in a relationship with the complainant’s mother. The complainant was 16 years old at the time the offence is said to have occurred. The accused was 35 years of age.
7․The prosecution alleges that the accused used his relationship with the complainant’s mother to gain access to the complainant and that the offending conduct occurred at a time the complainant was intoxicated and feeling unwell at his residence. The prosecution case is that the complainant’s mother was present at the residence when the offending occurred, though had just stepped out of a bedroom of that residence when the conduct occurred. The prosecution allege that the accused began by touching the complainant’s thigh and vagina over her clothing, and rubbing her clitoris under her underwear while she was laying on a mattress. The offending then occurred and is particularised as an act of digital penetration of the complainant’s vagina.
8․The prosecution seeks to adduce tendency evidence from a tendency witness in relation to six uncharged acts that are said to have occurred sometime between 2002 and 2003 when the tendency witness was between 7 and 8 years old, and the accused was between 15 and 17 years old.
Legislation
Tendency evidence
9․The application is brought pursuant to s 97 of the Evidence Act. That section provides:
97The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if—
(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b) the evidence is presented to explain or contradict tendency evidence presented by another party.
Note The tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
10․In this matter, the tendency witness and the complainant were children under the age of 18 years (as defined in the Dictionary in the Legislation Act 2001 (ACT)) at the time of the incidents. Accordingly, s 97A of the Evidence Act applies to those incidents involving children as defined, which creates a presumption in relation to “significant probative value”:
97AAdmissibility of tendency evidence in proceedings involving child sexual offences
…
(2)It is presumed that the following tendency evidence about the defendant will have significant probative value for section 97(1)(b) and section 101(2):
(a)tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest);
(b)tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.
(3)Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally.
(4)Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
(5)The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account:
(a)the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act);
(b)the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred;
(c)the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act;
(d)the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act;
(e)the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act;
(f)the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features;
(g)the level of generality of the tendency to which the tendency evidence relates.
…
11․The presumption of significant probative value introduced by s 97A may be rebutted pursuant to s 97A(4), if the court is satisfied there are sufficient grounds to determine that the tendency evidence does not have significant probative value. Section 97A(5) provides matters not to be taken into account, “unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account” (emphasis added).
12․In this matter, the accused submitted that the tendency evidence does not have significant probative value and identified a number of factors said to establish “exceptional circumstances” that warrant consideration of the matters listed at ss 97A(5)(a)-(g). The burden is on the accused to establish the existence of exceptional circumstances.
13․An assessment of the significance of the probative value of the evidence upon which the prosecution seeks to rely for tendency purposes requires the evidence to be taken at its highest and on the assumption that the jury will accept it: IMM v R [2016] HCA 14; 257 CLR 300 at 314-315 [50].
Exceptional circumstances, sufficient grounds and probative value tendency evidence
14․Correctly in my view, and no submission was advanced by the prosecution to the contrary, Berman AJ in DPP v Duncan (a pseudonym) [2024] ACTSC 80 (Duncan) at [35] observed that a consideration of “exceptional circumstances” (s 97A(5)), was difficult to isolate from a consideration of whether there were “sufficient grounds” (s 97A(4)) when determining whether the presumption was displaced, concluding at [36]:
Whatever it is that makes circumstances “exceptional” must be decided by considering whether they demonstrate the absence of significant probative value of the proposed tendency evidence.
15․This approach is consistent with the approach endorsed by Beech-Jones J (as his Honour then was), with whom Hamill J agreed, in Decision restricted [2023] NSWCCA 163 at [14]:
In this Court, the Crown accepted that “exceptional circumstances” may be established where the particular circumstances of one or more of the matters identified in s 97A(5) are such that they demonstrate the absence of significant probative value on the part of the subject evidence; i.e. in a particular case, the particular feature or features identified in s 97A(5)(a)−(g) may be so strong in terms of their bearing upon an assessment of probative value that they warrant the description “exceptional”. This concession was well-founded and is reflected in the words “exceptional circumstances in relation to those matters” in s 97A(5).
16․Like Berman AJ, I approach this matter on the basis that cases contemplating the question of the probative value of tendency evidence, prior to the enactment of s 97A, are instructive as to an assessment whether exceptional circumstances and sufficient grounds have been established: Duncan at [38].
17․The probative value of tendency evidence is no longer evaluated by reference to striking similarity as between the conduct said to evince the tendency. That said, the extent to which there is similarity in the conduct relied upon remains a relevant, though not determinative, consideration. In TL v The King [2022] HCA 35; 275 CLR 83 the High Court observed at 95-96 [29]:
There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence. Such a rule is not required by the text of s 97. The authorities establish that similarity is relevant to, but not determinative of, probative value. Indeed, universal rules are to be avoided, as the relevant facts are determinative in tendency cases. Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of “significant probative value”. That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the facts or facts in issue. The specificity of the tendency has a direct impact of the strength of the inferential mode of reasoning. Put in different terms, that is why tendency evidence must have significant probative value. Otherwise, s 97 is reduced to relevance, which is addressed in s 55.
Footnotes omitted.
18․In Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes) the majority held at 355-356 [39]:
Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
19․The majority in Hughes went on to conclude at 356-357 [41]:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence […] In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
20․In R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 (Bauer) the High Court considered tendency evidence in the context of single complainant sexual offence cases, stating at 87 [58]:
[T]he logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
Footnotes omitted.
21․The extent of the similarity as between the conduct enhances the probative value of the evidence. As Bell P expressed in Taylor v R [2020] NSWCCA 355 (Taylor) at [122(vii)]:
[W]hilst in order to qualify as tendency evidence, the conduct sought to be adduced does not necessarily need to bear a striking or even close similarity with the offences charged …the closer the degree of similarity, the more significant and more probative the evidence is likely to be. This is because the specificity of the tendency directly informs the strength of the inferential mode of reasoning.
22․Relevantly, Bell P went on to observe at [122 (xiv)(c)] that the probative value of the evidence sought to be relied upon for tendency reasoning may be influenced by the period between the charged conduct and the conduct relied upon for tendency purposes, stating at [122(xiv)(e)] that the absence of any evidence “as to the manifestation of the tendency in a lengthy intervening period will undermine the likely probative value of the history of the history tendency evidence”.
23․In Davidson (a pseudonym) v The King [2024] NSWCCA at [47] Adamson JA (with whom Stern HA and Wright J agreed) observed
In some cases, the tendency will be established by an accused’s continuing sexual interest in the complainant; in others, by an accused’s sexual interest in another child whose gender, age and, potentially, relationship with the accused, share common features with the complainant; or the tendency will be sought to be established by evidence of an accused’s sexual interest in children generally. These various possibilities reflect the circumstance that tendency can be established in as many ways as it is exhibited.
24․Plainly then, there is no requirement for striking similarity between the conduct to be established, in order that the tendency evidence be considered to have significant probative value. Further, the nature of the precise sexual acts engaged in, need not be similar if the combined effect of the tendency evidence provides strong support for the tendency: see Hughes at 362 [62]. Nonetheless an assessment of the probative value of the evidence will include an assessment of whether there are features of the offending which “links the two together”: Bauer at 87 [58].
The application
25․The accused conceded that s 97A applies in circumstances where the tendency witness and the complainant were both under the age of 18 at the time the conduct is said to have occurred. The accused relied on several matters in combination to demonstrate the existence of “exceptional circumstances” and ultimately, sufficient grounds in order to demonstrate that the tendency evidence lacks significant probative value.
26․The accused relied on the following factors:
(a)The absence of a substantive link between the alleged offending due to significant differences in the individual circumstances of the incidents and the significant gap in time between the conduct, being 20 years.
(b)The tendency witness and the complainant, while under the age of 18 years, were at dramatically different stages of childhood with respect to physical development and maturity at the time of the alleged conduct. The tendency witness was between 7 and 8 years old and the complainant was 16 years old.
(c)The significant difference in the age of the accused at the time of the alleged incidents. In relation to the tendency witness, the accused was a young person himself aged between 15 and 17 years old. At the time of the alleged offending against the complainant, the accused was an adult, being 35 years old.
(d)The absence of any evidence that the tendencies as particularised manifested in the significant period between the incidents.
(e)The number of factors that expose the lack of similarity in the conduct relied upon in support of the tendencies. Those factors were identified as:
(i)The relationship between the accused and the tendency witness and the complainant being different in nature, necessarily revealed in the different stages of their childhood. The complainant was 16 years old and did not require the same degree of supervision or care by the accused that the age of the tendency witness would have demanded when she was in his care. The complainant, in her evidence in chief interview, described her relationship with the accused as one of “friendship” and that he was her “mate”. Accordingly, the age of the accused and the female children at the time the acts are said to have occurred, cannot see the relationship between them characterised as “of the same nature”.
(ii)While both female children were known to the accused because of his romantic relationship with their relatives at the time of the conduct, in reality the accused had access to the tendency witness and complainant on different terms. On the evidence of the tendency witness, the conduct occurred when the accused was, in effect, babysitting her. The conduct in Count 1 occurred in a different setting and context.
(iii)The difference in the nature and extent of the sexual acts alleged, in particular with respect to incidents 1 and 4, when compared to the charged act. Incident 1 involved forcing the tendency witness to touch his penis as well as attempted forceful penile penetration and the tendency witness screaming and crying while “trapped” alone in a vehicle with the accused. Incident 4 involved forcing the tendency witness to watch him masturbate and watch pornography while she was crying.
(f)The generality of the expressed tendencies as set out in the amended tendency notice.
(g)The different kind of sexual interest revealed by the conduct. The accused submitted that a sexual interest demonstrated by an adult man towards a 16 year old young person, capable of consenting to sexual activity, is significantly different to a sexual interest demonstrated by a teenage boy towards a young pre-pubescent child. The accused also noted a previous consensual intimate encounter with the complainant described in her record of interview as a foot massage, which he submitted was relevant to the kind of relationship between them revealed in the prosecution case.
27․The prosecution submitted that exceptional circumstances cannot be established. In support the prosecution relied upon the following factors:
(1)The similar circumstances of the conduct in incidents 2, 3, 4, 5 and 7 being all “overt” sexual acts done in circumstances where there was an immediate risk of detection by another. Additionally incidents 2, 3 and 7 involved the accused being interrupted by another person and stopping the conduct;
(2)The similarity of the sexual acts described in incidents 1, 2, 3, 6, and 7 being digital penetration or attempted digital penetration of a female child.
(3)Incident 4 while of a “different nature” to the other conduct, considered alongside the other incidents as well as the charged act, takes on an “intimate character consistent with the tendency alleged”.
(4)The circumstances of the uncharged acts and the charged act are “closely connected” by the accused being in an intimate relationship with a person close to the female children and using that relationship to gain access to the female children.
28․The prosecution sought to distinguish the outcome in Duncan, submitting that several features present in that matter are not present in this matter. Specifically, that while, like Duncan, the period between incidents was significant and the complainants were different ages, other factors present in Duncan (at [65(f)-(i)]) are not present in this matter, namely:
The different relationship the accused had with each complainant.
The different way he had access to them.
The very different acts alleged by the complainants.
The lack of specificity of the tendency alleged by the prosecution.
29․While Duncan is useful as an example of the operation of s 97A, the outcome of this application does not rise or fall on whether each factor engaged in Duncan has been engaged by this accused. The terms of s 97A make clear that one factor alone, or some or many in combination, may establish exceptional circumstances. As the cases to which I have referred above demonstrate, each matter in which tendency evidence is sought to be adduced will turn on a synthesis of the factors particular to it and not by rote assessment.
30․The prosecution relied on R vGaray (No 2) [2020] ACTSC 331 (Garay) at [18]-[19] in support of the submission that the passage of time alone was not sufficient to demonstrate exceptional circumstances for the purposes of s 97A. Depending on the circumstances of the case under consideration, so much may be accepted. Garay involved a set of factual circumstances that were somewhat unusual. The charged conduct came first in time, the tendency evidence, some 33 years later. The charged conduct related to a single complainant who was between 12 and 14 years old at the time the acts occurred. The tendency evidence that his Honour ultimately permitted the prosecution to rely upon was child exploitation material found in the possession of Mr Garay to which he made admissions. The material in his possession depicted children around the same age as the complainant, engaged in similar sex acts subject of the charged act. While not the only factor in Garay, the 33-year period between incidents was a significant factor relied upon to oppose the admission of the tendency evidence. That period was insufficient to establish exceptional circumstances.
31․The prosecution also submitted that the age difference between the accused in this instance and the tendency witness and the complainant at the time the acts occurred was not dissimilar.
32․The prosecution pressed the significance of the tendency of the accused to use his intimate relationships to gain access to female children, as a compelling “link” between the evidence. They submitted that the relationship between the accused and the tendency witness, and the accused and the complainant, was the same; namely, a relationship where he had caring responsibilities of the female child. The perception of the 16-year old complainant that the accused was a “mate”, was submitted to be irrelevant to an assessment of the nature of their relationship and that in any event, her perception likely arose out of “grooming” conduct engaged in by the accused such as the foot massage the complainant described.
Consideration
33․Section 97A(5) provides that either the individual or combined effect of any of the factors at sub-ss (a)-(g) can demonstrate exceptional circumstances. For the reasons that follow, the combined effect of a consideration of those factors in this instance, establishes exceptional circumstances.
34․First, while the 20 year period between incidents was conceded to be a lengthy period, the extent of the age difference between the accused and the female children was said to be a feature common to the offending. At first glance some difference in age is readily apparent. On closer examination though, the extent of similarity with respect to this feature is lost. The age gap between the accused and the tendency witness was at most, 9-10 years. The age gap between the complainant and the accused when the acts allegedly occurred was almost double that, being 19 years.
35․Second, the 20-year period while not determinative, is significant. It is this lengthy period, in combination with other factors, that supports the accused’s position on the application.
36․It is a compelling feature of this matter that the sexual interests revealed in the charged and uncharged conduct are distinctly different. There is a marked difference between sexual interest in pre-pubescent female children and sexual interest in 16-year-old female children capable of consenting to sexual activity. The former interest is undoubtedly paedophilic in nature. The latter is not. Undoubtedly of themselves, the incidents reveal sexual interest in the individual female children but beyond that general common feature it is difficult to identify any other similarity in the sexual interest where the female children are at starkly different phases of physical and psychological development. The generality of tendency 1 that the prosecution seeks to demonstrate illustrates the difference in the sexual interests.
37․The sexual acts share similarity to the extent that they involve the accused acting on a sexual interest and touching the genital area of the female children. Unlike the complainant, none of the incidents involving the tendency witness include actual penetration of her vagina. The possibility of detection or the proximity of others, is present across five of the seven incidents. Apart from the acts being attempts at or an act of penetration and the possibility of detection, the incidents described by the tendency witness and the complaint do not have any other unifying or common features. Some of the incidents (already described at [5]) involve at least, aggressive, forceful conduct where the tendency witness was screaming, shaking and crying in the context of what is said to be attempts at penetration. There is a level of force, control and aggression in the tendency incidents, not present in the charged incident. This is reflected in the terms of tendency 3 which, while containing some precision, is nonetheless fairly general in nature.
38․The prosecution sought to characterise the relationship between the accused and the female children as “the same” on the basis that he was in the status of carer at the time the incidents occurred. Tendency 2 attempts to capture the accused’s ‘use’ of his relationship with family members of the female children to gain access to them for the purpose of acting on his sexual interest. The tendency does not specify how, beyond gaining physical access to the female children, the accused used his intimate relationships to facilitate access.
39․On the face of the ages of the female children, their stage of development demanded ‘caring’ to varying degrees. The complainant was intoxicated on the night the charged incident allegedly occurred, from drinking with her mother and the accused, and using cannabis. Whether as a “mate” or otherwise, the complainant being unwell, the accused as her mother’s boyfriend was in the position of assisting his partner to care for the complainant.
40․There is I accept, a common aspect of the position of the accused with respect to the female children in terms of his general relationship with them including a supervisory component, but again, that role must be looked at through the prism of their respective ages and the nature of the connection between them. Further, while not carrying the day, another different aspect of the uncharged incidents is that the accused was a teenager when the acts are said to have occurred.
41․While not determinative, I consider it to be a relevant consideration that the complainant did not consider the accused to occupy a parental or fatherly role in her life, consistent with her age and the extent of his place in her life overall. The prosecution case is that the charged incident took place on 5 January 2022. The accused and the complainant’s mother were “dating” from around May 2021. From 25 December 2021, the complainant was staying with her mother at the accused’s house and she understood her mother and the accused were no longer in a relationship, though were still living together.
42․The complainant was intoxicated at the time of the charged incident, describing herself as “shitfaced”, a circumstance known to the accused. The tendency witness, while clearly vulnerable because of her age and reliance on those charged with her supervision, was not vulnerable arising from intoxication. In my view, there is a difference in the relationship and the circumstances operating at the time of the uncharged incidents as compared with the charged incident.
43․In combination, I am satisfied that the following factors establish exceptional circumstances:
(a)The 20-year gap between the uncharged incidents and the charged incident;
(b)The distinctly different sexual interest revealed in the incidents as between the tendency witness and the complainant;
(c)The difference in circumstances and relationship established by the evidence to be operating at the time the acts occurred;
(d)The difference between the acts allegedly perpetrated;
(e)The general nature of the tendencies alleged by the prosecution, in particular tendency 1.
Are there sufficient grounds to rebut the presumption of significant probative value?
44․The existence of exceptional circumstances does not answer the question of whether there are sufficient grounds to rebut the presumption of significant probative value. The prosecution submitted that the force of the tendency evidence it seeks to adduce is significantly probative of the tendencies in that it has the capacity to rationally affect the assessment of the probability of a fact in issue to a significant extent or is more than merely relevant but less than substantially so: Taylor at [122(v)].
45․The strength of the “link” between the evidence evincing the tendency is informed by the degree of similarity in the conduct. Tendency evidence provides a basis for a mode of reasoning based on inference. That mode of reasoning is necessarily strengthened by the degree of specificity revealed in the tendency. The factors relied upon by the accused in relation to exceptional circumstances weaken the strength of the link between the incidents and the strength of the probative value of the evidence.
46․The terms of s 97A do not permit an approach that automatically ascribes significant probative value to matters involving more than one complainant. I consider the distinct difference in sexual interest underlined by the significant difference in the age of the complainants is a matter that substantially weakens the probative force of the evidence in this instance and accordingly the foundation of the inferential mode of reasoning that tendency permits. The generality of the tendencies, even accepting the features I identified as common to the incidents, say no more than the accused 20 years ago as a teenager acted on a sexual interest in a pre-pubescent child and as a 35 year old man had a sexual interest in a 16 year old girl. Proof of the former in the circumstances established by the evidence, does not increase the likelihood that the account of the latter is true. It follows then that I do not consider that the uncharged incidents have the capacity to rationally affect the assessment of the probability of the existence of facts in issue to a significant extent.
47․There are sufficient grounds to rebut the presumption of significant probative value and the prosecution should not be permitted to adduce the evidence.
The s 101(2) test
48․If I am wrong about the probative value of the evidence this is a matter where I would consider that the probative value of the evidence does not outweigh the danger of unfair prejudice to the accused: s 101(2), Evidence Act.
49․The extent of the evidence in relation to the uncharged acts was significant. Additionally, the acts included serious, forceful, repeated conduct against a pre-pubescent child where she was crying, screaming and shaking and in some incidents, captive alone in a vehicle with the accused. The charged act while of course still serious did not involve physical force. The complainant described closing her eyes and not being able to “do anything to stop it”.
50․The difference in the nature and extent of the incidents as between the tendency witness and the complainant raises the very real prospect that a jury would place disproportionate weight on the tendency evidence in determining the outcome of the charged act. Sexual acts committed against very young children are apt to generate feelings of revulsion and drive a desire for accountability from perpetrators. The accused has not ever been charged in relation to the uncharged acts.
51․In this matter where the evidence as to the extent of the uncharged acts outweighs the evidence as to the extent of the charged act to a significant degree, there is a danger the jury will be overwhelmed by the task of assessing the uncharged acts and be distracted from their task with respect to the charged act.
52․Further, the accused submitted that the uncharged acts present him with a significant forensic disadvantage in conducting the defence case in circumstances where there has been a significant period since the acts are said to have occurred, in combination with an imprecise time frame. The allegations in relation to the uncharged acts were first particularised after the tendency witness participated in an interview with police in November 2023.
53․The accused submitted these factors combine to demonstrate that there is a risk that the accused will face prejudice that is unfair, that cannot on this occasion be overcome by directions from the trial judge. In the particular circumstances of this matter, I agree. In my view the probative value of the evidence such as it is, does not outweigh the danger of unfair prejudice.
Conclusion
54․The evidence of incidents one to six are not admissible as tendency evidence. The tendency witness, Ms A, cannot be called in the trial of the accused to adduce evidence of these incidents.
Orders
55․For those reasons I make the following orders:
(1)The application in proceeding filed on 30 May 2024 is dismissed.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: Date: 31 July 2024 |
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