Elsworth v R [2022] NSWCCA 276

Elsworth v R [2022] NSWCCA 276

The guilty verdict on count 2 (digital-vaginal penetration without consent) was reasonable and supported by the evidence, including the applicant's own admissions, and was not inconsistent with not guilty verdicts on counts 3 and 4, given the evidential distinction. Exclusion of the complainant’s prior sexual experience evidence was correct as it failed both the temporal and relevance requirements of s 293 of the Criminal Procedure Act 1986 (NSW) and did not fall within any exception.

Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Criminal Appeal / Court of Criminal Appeal (appeal Against Conviction)
Outcome
Appeal dismissed (leave granted but all grounds rejected)
Legal Topics
['appeal Against Conviction' 'sexual Offences' 'evidence Exclusion' 'inconsistent Verdicts' 'consent' 'section 293 Criminal Procedure Act 1986 (nsw)']
['criminal Law'] ['appeal Against Conviction' 'sexual Offences' 'evidence Exclusion' 'inconsistent Verdicts' 'consent' 'section 293 Criminal Procedure Act 1986 (nsw)']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal (appeal Against Conviction)

Legal Issues

  1. 1 ['Whether the verdict of guilty on count 2 was unreasonable or inconsistent with not guilty verdicts on counts 3 and 4' 'Whether the trial judge erred in refusing to allow evidence of prior sexual activity under s 293 Criminal Procedure Act 1986 (NSW)']

Ratio Decidendi

The guilty verdict on count 2 (digital-vaginal penetration without consent) was reasonable and supported by the evidence, including the applicant's own admissions, and was not inconsistent with not guilty verdicts on counts 3 and 4, given the evidential distinction. Exclusion of the complainant’s prior sexual experience evidence was correct as it failed both the temporal and relevance requirements of s 293 of the Criminal Procedure Act 1986 (NSW) and did not fall within any exception.

Court Disposition

Appeal dismissed (leave granted but all grounds rejected)

Orders

  • ['Leave is granted to appeal.' 'The appeal is dismissed.' 'The commencement date of the 3-year imprisonment sentence imposed on 15 October 2021 is varied 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...