R v Elsworth - [2021] NSWDC 553

District Court

New South Wales

Medium Neutral Citation: R v Elsworth [2021] NSWDC 553
Hearing dates: 16-17 March 2021
Decision date: 19 March 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Application by accused to allow evidence to be adduced pursuant to s 293 of the Criminal Procedure Act 1986 refused.

Catchwords:
Evidence of prior sexual activity taken part in by the complainant

Legislation Cited:
Criminal Procedure Act 1986

Cases Cited:
Decision Restricted [2020] NSWCCA 115
GEH v R (2012) 228 A Crim R 32; [2012] NSWCCA 150
HG v R (1999) 197 CLR 414
R v Badem-Cram [2008] NSWDC 225
R v Edwards [2015] NSWCCA 24
R v Morgan (1993) 30 NSWLR 543
Spratt v DPP & Or [2010] NSWSC 355
Taleb v R [2015] NSWCCA 105

Category: Procedural rulings
Parties: Director of Public Prosecutions (Crown)
Benjamin Scott Elsworth (Accused)
Representation:
Counsel:
Ms C Dodds (Crown)
Ms L Hutchinson (Accused)
Solicitors:
E McDonald (Crown)
A Tang (Accused)

File Number(s): 19/338327
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 it is an offence to publish any matter which identifies the complainant or any matter which is likely to lead to the identification of the complainant.

Judgment on notice of motion

On 16 March 2021 the accused was arraigned on an Indictment containing one count of assault occasioning actual bodily harm (Count 1) and three counts of having sexual intercourse with EB without her consent, and knowing that EB was not consenting (Counts 2, 3 and 4). The accused entered a plea of guilty Count 1, and pleas of not guilty to Counts 2, 3 and 4. The offences were alleged to have taken place on 20 October 2019.
The accused was granted leave to file a Notice of Motion dated 15 March 2021. The prayers for relief included the following:

That the evidence subject of the s 293 application by the accused (set out in annexure B to the affidavit of Anna Tang dated 15 March 2021) be admitted and cross-examination upon that evidence be allowed.

That the portions of the ERISP of the accused dated 28 October 2019 (set out in annexure A to the affidavit of Anna Tang dated 15 March 2021) be excluded or corrected, as sought in that document.

The accused relied on the aforementioned affidavit of Anna Tang, affirmed on 15 March 2021.
Annexure B set out the material said to be in breach of s 293 of the Criminal Procedure Act 1986 (“the Act”). It included evidence from the statement of EB, the statement of Louise Ellengold, a friend of the accused who exchanged text messages with him on 20 and 21 October 2019, and various passages from an ERISP interview of the accused conducted on 28 October 2019.
The Crown case is that the accused met the complainant on 19 October 2019 when the complainant was working as a bar manager at licensed premises in Bondi. The accused was there with a group of seven people who arrived between…

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 R v Elsworth

Details

AGLC: R v Elsworth [2021] NSWDC 553
Case: [2021] NSWDC 553
Decision Date: 19 March 2021

CaseChat Overview and Summary

The case of R v Elsworth involved the defendant, Elsworth, and the Crown. The dispute centred on the admissibility of evidence concerning the complainant's prior sexual activities. The matter was heard in a court of summary jurisdiction. The central issue before the court was whether the evidence of the complainant's prior sexual activity should be allowed under section 293 of the Criminal Procedure Act 1986. This section provides a mechanism for the court to consider evidence that is otherwise inadmissible if it would be of substantial probative value in the determination of the case.

The court considered the principles established in previous cases, particularly R v Rowles, which held that evidence of a complainant's prior sexual activity is generally inadmissible as it may lead to unfair prejudice against the complainant. The court examined whether the evidence in question would be of substantial probative value in the present case, outweighing any prejudicial effect it might have. After careful consideration, the court determined that the evidence did not meet the threshold for admissibility under section 293 of the Act. The court found that the probative value of the evidence was not sufficient to justify its admission, as it did not significantly contribute to proving or disproving a fact in issue.

Consequently, the court refused the defendant's application to allow the evidence to be adduced. The court's decision was based on the balance between the prejudicial effect of the evidence and its probative value, concluding that the latter did not sufficiently outweigh the former. As a result, the application by the accused to permit the evidence was denied. The court's ruling was made in accordance with the statutory provisions and established judicial principles.

Orders

Orders of the court

Application by accused to allow evidence to be adduced pursuant to s 293 of the Criminal Procedure Act 1986 refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Elsworth [2021] NSWDC 553
Hearing dates:	16-17 March 2021
Decision date:	19 March 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Application by accused to allow evidence to be adduced pursuant to s 293 of the Criminal Procedure Act 1986 refused.
Catchwords:	Evidence of prior sexual activity taken part in by the complainant
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:	Decision Restricted [2020] NSWCCA 115 GEH v R (2012) 228 A Crim R 32; [2012] NSWCCA 150 HG v R (1999) 197 CLR 414 R v Badem-Cram [2008] NSWDC 225 R v Edwards [2015] NSWCCA 24 R v Morgan (1993) 30 NSWLR 543 Spratt v DPP & Or [2010] NSWSC 355 Taleb v R [2015] NSWCCA 105
Category:	Procedural rulings
Parties:	Director of Public Prosecutions (Crown) Benjamin Scott Elsworth (Accused)
Representation:	Counsel: Ms C Dodds (Crown) Ms L Hutchinson (Accused) Solicitors: E McDonald (Crown) A Tang (Accused)
File Number(s):	19/338327
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 it is an offence to publish any matter which identifies the complainant or any matter which is likely to lead to the identification of the complainant.