R v Elsworth [2021] NSWDC 553

R v Elsworth [2021] NSWDC 553

The evidence of complainant’s prior sexual assault, occurring five years before the alleged offences, is not admissible under s 293(4)(a) or s 293(6) of the Criminal Procedure Act 1986, as it does not satisfy the temporal or circumstantial connection requirements, and the probative value does not outweigh distress or embarrassment to the complainant.

Jurisdiction
Australia
Judgment Date
19 March 2021
Procedural Posture
Criminal / Procedural Ruling on Notice of Motion Prior to Trial
Outcome
Application to allow evidence to be adduced pursuant to s 293 refused.
Legal Topics
['admissibility of Evidence' 'cross Examination of Complainant' 'prior Sexual Activity' 'sexual Assault Proceedings' 'statutory Interpretation']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'cross Examination of Complainant' 'prior Sexual Activity' 'sexual Assault Proceedings' 'statutory Interpretation']

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Procedural Posture

Criminal / Procedural Ruling on Notice of Motion Prior to Trial

Legal Issues

  1. 1 ["Whether evidence of the complainant's prior sexual activity is admissible pursuant to s 293 of the Criminal Procedure Act 1986" "Whether cross-examination on complainant's sexual experience is permitted under s 293(4)(a) and/or s 293(6)"]

Ratio Decidendi

The evidence of complainant’s prior sexual assault, occurring five years before the alleged offences, is not admissible under s 293(4)(a) or s 293(6) of the Criminal Procedure Act 1986, as it does not satisfy the temporal or circumstantial connection requirements, and the probative value does not outweigh distress or embarrassment to the complainant.

Court Disposition

Application to allow evidence to be adduced pursuant to s 293 refused.

Orders

  • ['Relief sought in prayer for relief number 1 on the Notice of Motion is refused.' 'Evidence identified in annexure B to the affidavit of Anna Tang, affirmed on 15 March 2021, is excluded from the trial.' 'ERISP interview of the accused on 28 October 2019 to be edited to remove content as per ruling; transcript to...