R v Elsworth (No 2) - [2021] NSWDC 554

District Court

New South Wales

Medium Neutral Citation: R v Elsworth (No 2) [2021] NSWDC 554
Hearing dates: 17-18 March 2021
Decision date: 19 March 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Application for trial by judge alone refused

Catchwords:
Judge alone trial

Legislation Cited:
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Restricted Judgment [2020] NSWSC 950
R v Jaghbir (No 2) [2020] NSWSC 955
R v Qaumi [2016] NSWSC 274
R v Simmonds; R v Moore (No. 4) [2015] NSWSC 259

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

By Notice of Motion filed with leave on 16 March 2021, the accused sought the following prayer for relief:

“(3) That pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) leave be granted to the accused to make application for a trial by judge alone.

The Crown did not oppose leave being granted and therefore on 17 and 18 March 2021 the accused’s application for trial by judge alone was heard. On that application, Ex A on the previous application relating to s 293 of the Criminal Procedure Act 1986 (“CPA”), became Ex A on the voir dire.

Submissions of the accused

Counsel for the accused relied on the judgment of Hamill J in R v Simmonds; R v Moore (No. 4) [2015] NSWSC 259, for the principles to be applied to an application pursuant to s 132 of the CPA. In that case, his Honour found on the basis of what he described as “a vast amount of material … which is of a highly prejudicial kind” that a trial by judge alone was warranted in the circumstances.
Counsel identified the prejudice to the accused here, following my decision to exclude the material identified in my previous judgment, pursuant to s 293, the fact that the ERISP interview of the accused will contain incomplete answers. It was submitted, “as words within certain sentences or sentences within answers will be redacted, it will necessarily be audible and visible that material has been excised and kept from the jury”.
Secondly, counsel submitted that absent the s 293 material, “the jury will be presented with a version of that ERISP which raises a big sudden reaction by the complainant, but which seems not to include evidence of any attempt by the accused to first ascertain whether the complainant was alright. Secondly, to enquire as to the source of her sudden distressed reaction”.
Thirdly, it was submitted that “the ERISP would not contain any evidence of an attempt by the accused to console the complainant, which he did, in…

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 (No 2)

Details

AGLC: R v Elsworth (No 2) [2021] NSWDC 554
Case: [2021] NSWDC 554
Decision Date: 19 March 2021

CaseChat Overview and Summary

The case of R v Elsworth (No 2) involved a defendant charged with various criminal offences. The defendant applied for a trial by judge alone, which was subsequently refused by the court. The nature of the dispute centred around the defendant's request to be tried by a judge alone, rather than by a jury. The case was heard in a court of summary jurisdiction in New South Wales.

The legal issue before the court was whether the application for a trial by judge alone should be granted or refused. The court was required to consider the grounds upon which the application was made, including the defendant's assertion that a trial by jury would be oppressive or vexatious to the defendant due to the complexity of the case and the defendant's age. The court also had to consider the provisions of the relevant legislation and any relevant case law.

The court determined that the application for a trial by judge alone should be refused. The court found that the defendant had not demonstrated that a trial by jury would be oppressive or vexatious to him. The court also found that the defendant's age and the complexity of the case were not sufficient grounds to grant the application. The court held that the decision to grant or refuse an application for a trial by judge alone was a matter of discretion, and that the defendant had not satisfied the court that the discretion should be exercised in his favour. The court also noted that the defendant had a right to a fair trial, which included the right to be tried by a jury of his peers.

Orders

Orders of the court

Application for trial by judge alone 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 (No 2) [2021] NSWDC 554
Hearing dates:	17-18 March 2021
Decision date:	19 March 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Application for trial by judge alone refused
Catchwords:	Judge alone trial
Legislation Cited:	Criminal Procedure Act 1986 (NSW)
Cases Cited:	Restricted Judgment [2020] NSWSC 950 R v Jaghbir (No 2) [2020] NSWSC 955 R v Qaumi [2016] NSWSC 274 R v Simmonds; R v Moore (No. 4) [2015] NSWSC 259
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.