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

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

The accused did not establish prejudice of a kind that made a jury trial contrary to the interests of justice. The gaps in the redacted ERISP and excluded material could be addressed by proper directions, the ERISP still contained some evidence that the accused comforted the complainant, and the complainant's reaction might be explicable by other admitted physical conduct. The central issues of consent, the accused's knowledge of consent or recklessness, and the credibility and reliability of the complainant and accused were intertwined factual issues requiring the application of objective community standards and were preferably determined by a jury. On balance, the interests of justice...

Jurisdiction
Australia
Judgment Date
19 March 2021
Procedural Posture
Criminal / Notice of Motion Seeking Leave to Apply For, and an Order For, Trial by Judge Alone
Outcome
Application for trial by judge alone refused
Legal Topics
['trial by Judge Alone' 'jury Trial' 'interests of Justice' 'objective Community Standards' 'prejudice From Redacted Erisp' 'consent and Knowledge of Consent']
['criminal Law' 'criminal Procedure'] ['trial by Judge Alone' 'jury Trial' 'interests of Justice' 'objective Community Standards' 'prejudice From Redacted Erisp' 'consent and Knowledge of Consent']

Case Brief

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Procedural Posture

Criminal / Notice of Motion Seeking Leave to Apply For, and an Order For, Trial by Judge Alone

Legal Issues

  1. 1 ['Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 (NSW) to make an application for trial by judge alone.' 'Whether it was in the interests of justice under s 132 of the Criminal Procedure Act 1986 (NSW) for the accused to be tried by judge alone despite the prosecutor not agreeing.' "Whether alleged prejudice arising from exclusion of material under s 293 of the Criminal Procedure Act 1986 (NSW) and redaction of the accused's ERISP could be adequately addressed by jury directions." 'Whether issues of consent, knowledge of consent and recklessness required the application of objective community standards and were preferably determined by a jury.']

Ratio Decidendi

The accused did not establish prejudice of a kind that made a jury trial contrary to the interests of justice. The gaps in the redacted ERISP and excluded material could be addressed by proper directions, the ERISP still contained some evidence that the accused comforted the complainant, and the complainant's reaction might be explicable by other admitted physical conduct. The central issues of consent, the accused's knowledge of consent or recklessness, and the credibility and reliability of the complainant and accused were intertwined factual issues requiring the application of objective community standards and were preferably determined by a jury. On balance, the interests of justice...

Court Disposition

Application for trial by judge alone refused

Orders

  • ['Leave to bring the application is granted pursuant to s 132A.' 'The application for judge alone trial is refused.']