Director of Public Prosecutions v Loughton

[2024] ACTSC 25

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Loughton

Citation: 

[2024] ACTSC 25

Hearing Date:

6 February 2024

Decision Date: 

6 February 2024

Reasons Date: 

12 February 2024

Before:

Baker J

Decision: 

(1)  The incidents (both the charged and uncharged acts) in the Application dated 15 January 2024 are admissible as tendency evidence.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application – Admissibility – Tendency Evidence – s 97A Evidence Act 2011 (ACT) –Tendency evidence of a similar character involving the same complainant

Legislation Cited: 

Crimes Act 1900 (ACT) s 26, 61(3), 62(2)

Evidence Act 2011 (ACT) s 97A, 97(1)(b) and 101(2)

Cases Cited:

R v Bauer [2018] HCA 40; 266 CLR 56

Parties: 

Director of Public Prosecutions ( Crown)

Ashley Taylor Loughton ( Accused)

Representation: 

Counsel

M Dyason ( Crown)

J Sabharwal ( Accused)

Solicitors

ACT Director of Public Prosecutions

Rachel Bird & Co ( Accused)

File Numbers:

SCC 255 of 2023; SCC 256 of 2023

BAKER J:      

1․By way of an application dated 15 January 2024, the prosecution seeks orders that it be permitted to adduce tendency notice as notified in the Notice of Intention to Adduce Tendency Evidence dated 15 January 2024 (“the Tendency Notice”).

2․The accused is charged with four counts of committing an act of indecency upon a person under the age of 16 years contrary to s 61(3) of the Crimes Act 1900 (ACT) and two counts of incest, contrary to s 62(2) of the Crimes Act. The accused is also charged with a transferred charge of common assault contrary to s 26 of the Crimes Act. The accused is the complainant’s older sister. At the time of the alleged offending, the accused was between 18 and 19 years old. The complainant was between 14 and 15 years old.

3․The tendency evidence consists of each of the six allegations on the indictment (the “charged acts”) and a further 48 incidents (the uncharged acts). The uncharged acts include occasions where the accused is alleged to have indecently touched the complainant on her breasts, buttocks, and inner thigh, where she has watched her showering or getting dressed, where she has attempted to “hump the complainant”, where she has attempted to pull down the complainant’s pants, and where she has made sexual gestures towards her.

4․The tendencies relied on by the prosecution are as follows:

a.The accused had a tendency to have a particular state of mind, namely, to have a sexual interest in the complainant.

b.The accused had a tendency to act in particular ways, namely:

(1)  To act upon her sexual interest by committing acts of indecency on the complainant (physical tendency 1).

(2)  To act upon her sexual interest by digitally penetrating the complainant’s vagina (physical tendency 2).

(3)  To act in a childish manner and speak in a high-pitched childish tone when acting upon her sexual interest in the complainant (physical tendency 3).

5․The prosecution acknowledges that not all of the incidents listed in the Tendency Notice are capable of demonstrating each and every one of the tendencies alleged and that not all of the tendencies alleged are relevant to each and every count.

6․Specifically, the prosecution contends that the state of mind tendency is supported by each of the incidents in the tendency notice and is relevant to each count on the indictment. However, physical tendency 1 is only said to be relevant to counts 1 to 4 on the indictment, physical tendency 2 is only said to be relevant to counts 5 and 6 on the indictment and physical tendency 3 is only said to be relevant to counts 2, 3 and 5 on the indictment. The uncharged acts only demonstrate physical tendency 1.

7․Both parties agreed that it is not necessary for me to rule at this time on which incidents in the tendency notice may be relied on as demonstrating each tendency. Rather, the prosecution only seeks orders confirming that the incidents listed in the Tendency Notice are admissible as tendency evidence. I consider that this is appropriate. On a preliminary application of this nature, it is not the function of the Court to frame the precise terms of the summing up.

8․Where appropriate notice is given, tendency evidence is admissible in criminal proceedings if the evidence has significant probative value and the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. Section 97A (2) of the Evidence Act 2011 (ACT) provides that it is presumed that tendency evidence (a) about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest) or (b) about the defendant acting on a sexual interest the defendant has or had in children, will have significant probative value for ss 97(1)(b) and 101 (2).

9․Unsurprisingly, given s 97A, the accused does not object to the admission of the tendency evidence, nor does he object to the use of the evidence for tendency purposes. The evidence is clearly admissible as tendency evidence. As the prosecution submitted, the tendency evidence is of a similar character, involved the same complainant and occurred within a limited, fourteen-month, window: see also R v Bauer [2018] HCA 40; 266 CLR 56 at [48], [50] and [60]. The evidence clearly has significant probative value for a tendency purpose that is specified in the Tendency Notice, namely, the tendency of the accused to have a sexual interest in the complainant. Noting that careful directions will be given by the trial judge to the jury as to the way in which tendency reasoning that may be employed, the probative value of the evidence outweighs the danger of unfair prejudice from its admission.

10․Accordingly, I make the following order:

(1)  The incidents (both the charged and uncharged acts) in the Application dated 15 January 2024 are admissible as tendency evidence.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 12 February 2024