Elsworth v The The King - [2022] NSWCCA 276

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Elsworth v R [2022] NSWCCA 276
Hearing dates: 24 October 2022
Date of orders: 16 December 2022
Decision date: 16 December 2022
Before: Garling J at [1]
Button J at [2]
Wilson J at [3]
Decision:
1. Leave is granted to appeal.
2. The appeal is dismissed.
3. The date upon which the sentence imposed upon the applicant on 15 October 2021 is to commence is varied, such that the sentence of 3 years imprisonment is to commence on the date upon which the applicant enters custody pursuant to warrant. The non-parole period of 18 months imprisonment will expire 18 months after that date.

Catchwords:
CRIME – APPEAL – appeal against conviction – sexual intercourse without consent – verdict of guilty returned to one count and not guilty to two further counts – whether verdicts inconsistent – whether offence to which guilty verdict returned not supported by the evidence – whether error in refusal to allow evidence to be led of prior sexual activity

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
AJ v R [2022] NSWCCA 136
Attwater v R; Maris v R [2021] NSWCCA 17
Decision Restricted [2021] NSWCCA 51
GEH v The Queen [2012] NSWCCA 150; 228 A Crim R 32
Jackmain (a pseudonym) v R (2020) 102 NSWLR 857; 284 A Crim R 483; [2020] NSWCCA 150
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v R (1996) 190 CLR 348 at 366; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unrep)
R v White (1989) 18 NSWLR 332
SKA v The Queen (2011) 243 CLR 400; 2011 HCA 13

Category: Principal judgment
Parties: Benjamin Scott Elsworth (Applicant)
Rex (Respondent)
Representation:
Counsel:
P Boulten SC & L Hutchinson (Applicant)
C Curtis (Crown) (Respondent)
Solicitors:
Mitchell & Co Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown) (Respondent)

File Number(s): 2019/00338327
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 555

Date of Decision:

15 October 2021

Before:

Mahony SC DCJ

File Number(s):

2019/00338327

Judgment

GARLING J: I agree with the orders proposed by Wilson J, and with the comprehensive reasons which her Honour articulates. Having considered the entirety of the evidence at the trial, I am well satisfied that the verdict of the jury on Count 2 is not unreasonable, and that it is supported by the evidence which was before the jury.
BUTTON J: I agree with Wilson J. On my own assessment, the conviction is neither unreasonable nor unable to be supported.
WILSON J: From 23 March 2021 to 12 April 2021 the applicant, Benjamin Elsworth, stood trial before his Honour Judge Mahony…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elsworth v The The King

Details

AGLC: Elsworth v The The King [2022] NSWCCA 276
Case: [2022] NSWCCA 276
Decision Date: 16 December 2022

CaseChat Overview and Summary

In the case of Elsworth v The King, the appellant was convicted of sexual intercourse without consent and appealed against the conviction. The appellant was found guilty on one count of sexual intercourse without consent and not guilty on two further counts. The appeal focused on the inconsistency of the verdicts and whether the guilty verdict was supported by the evidence. The appellant also argued that there was an error in the refusal to allow evidence of prior sexual activity to be led.

The court had to determine whether the verdicts were inconsistent and whether the guilty verdict was supported by the evidence. The court also had to consider whether there was an error in the refusal to allow evidence of prior sexual activity to be led. The court examined the evidence presented during the trial and considered the legal principles applicable to the case. The court concluded that the verdicts were not inconsistent and that the guilty verdict was supported by the evidence. The court also found that there was no error in the refusal to allow evidence of prior sexual activity to be led.

The court found that the verdicts were not inconsistent as they related to different acts of sexual intercourse without consent. The court found that the guilty verdict was supported by the evidence presented during the trial. The court also found that there was no error in the refusal to allow evidence of prior sexual activity to be led as it was not relevant to the charge of sexual intercourse without consent. The appeal was dismissed, and the conviction was upheld.

The court did not make any specific orders in relation to the appeal. However, the conviction and sentence imposed by the trial court remained in place. The appellant had the right to apply for leave to appeal to a higher court if they wished to pursue further legal action.

Orders