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District Court 19 March 2021

R v Elsworth

[2021] NSWDC 553

Sexual offencesAssault & violence

Citation: R v Elsworth [2021] NSWDC 553
Court: District Court of NSW
Date: 19 March 2021
Judge(s): Mahony SC DCJ

Background

The accused faced trial on one count of assault occasioning actual bodily harm and three counts of sexual intercourse without consent, all alleged to have occurred on 20 October 2019. The accused pleaded guilty to the assault count and not guilty to the three sexual offence counts. The Crown case was that the complainant had explicitly told the accused she would not have sex with him before he committed a series of penetrative and violent acts in her apartment.

Before trial, the accused brought a motion seeking leave to adduce evidence, or cross-examine the complainant, about the fact that she had previously been raped at age 15. The complainant had disclosed this history in the aftermath of the events alleged, both to the accused himself and, in a general way, to police. The Crown announced it did not intend to rely on that material at trial.

The application turned on whether the evidence could be admitted under section 293 of the Criminal Procedure Act 1986, which restricts the use of evidence about a complainant's prior sexual activity or experience. The accused pursued two pathways: first under section 293(6), and then, following the Crown's announcement, under the exception in section 293(4)(a).

Legal Issues

  • Whether the complainant's prior rape at age 15 constituted "sexual experience" or "sexual activity" within the meaning of section 293 of the Criminal Procedure Act 1986.
  • Whether that prior event satisfied the temporal requirement in section 293(4)(a)(i), namely that it was taken part in by the complainant "at or about the time of the commission of the alleged offences."
  • Whether the prior event formed part of "a connected set of circumstances in which the alleged prescribed sexual offence was committed," as required by section 293(4)(a)(ii).
  • Whether the Crown's decision not to adduce the relevant material meant section 293(6) was engaged.
  • Whether, even if admissible, the probative value of the evidence outweighed the distress, humiliation, and embarrassment to the complainant.

Decision

Issue 1: Characterisation as sexual activity or sexual experience

His Honour found that the complainant's rape when she was 15, occurring over five years before the alleged offences, was a discrete sexual activity rather than a form of ongoing sexual experience. Relying on the analysis of Harrison J in GEH v R, the court held that the prior rape did not form part of a continuum of sexual experience that made the complainant more likely to engage in sexual activity with the accused (at [60]-[61]). The court rejected the accused's submission that the Crown's contrary characterisation was wrong in law (at [61]).

Issue 2: Temporal requirement under section 293(4)(a)(i)

Because the prior rape was characterised as a discrete sexual activity rather than ongoing sexual experience, it could not satisfy the requirement that the relevant activity be taken part in at or about the time of the alleged offences. Five years prior was too remote (at [60], [68]). The continuing psychological impact on the complainant, in the form of PTSD, did not alter that conclusion.

Issue 3: Connected set of circumstances under section 293(4)(a)(ii)

The court further found that the prior sexual activity did not form part of a connected set of circumstances in which the alleged offences were committed (at [62]). The fact that the complainant mentioned her PTSD to the accused after the events, and that the accused told his friend the complainant had "been raped before," did not bring the evidence within the exception (at [65]). The court also rejected the submission that the prior assault was relevant to the accused's state of mind at the time the alleged offences were committed, noting that what occurred in the aftermath was a matter for the trier of fact (at [64]).

Issue 4: Section 293(6) and the Crown's decision not to adduce the material

The court found that section 293(6) was not engaged because the Crown did not intend to rely on the material. Adducing it would clearly breach section 293, and the court declined to characterise the Crown's decision as "highly unusual" (at [63]).

Issue 5: Probative value versus distress to the complainant

Proceeding on the alternative basis that its earlier findings were wrong, the court found that the probative value of the evidence would in any event be outweighed by the distress, humiliation, and embarrassment the complainant would suffer from disclosure that she was raped at age 15. The complainant had advised the Crown that such disclosure would cause her distress (at [69]).

Orders Made

  • The accused's application to adduce evidence pursuant to section 293 of the Criminal Procedure Act 1986 was refused.
  • The evidence identified in Annexure B to the affidavit of Anna Tang (affirmed 15 March 2021) was excluded from the trial.
  • The ERISP interview of the accused (28 October 2019) was to be edited to remove content identified by blue and yellow highlighting in Exhibit A.5, with the transcript amended accordingly.

Key Takeaways

  • A complainant's prior sexual assault, occurring years before the alleged offence, is properly characterised as a discrete sexual activity rather than ongoing sexual experience for the purposes of section 293(4)(a) of the Criminal Procedure Act 1986, and does not satisfy the temporal requirement in that subsection (at [60]-[61]).
  • Under section 293(4)(a)(ii), a prior sexual assault does not become part of "a connected set of circumstances" in which the alleged offences were committed merely because a complainant later disclosed her history to the accused, or because the accused subsequently referenced it to third parties or in a police interview (at [62], [65]).
  • The fact that a prior sexual assault continued to affect a complainant psychologically, including through a PTSD diagnosis, did not extend the reach of the section 293(4)(a) exception so as to satisfy the temporal test (at [60], [68]).
  • Where the Crown announces it will not rely on material touching on a complainant's sexual activity, section 293(6) is not engaged. Adducing such material in those circumstances would constitute a breach of section 293 (at [63]).
  • Even where evidence of prior sexual activity has some probative value, the court retains the capacity under section 293(4) to exclude it where admission would cause the complainant distress, humiliation, or embarrassment that outweighs that probative value (at [69]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986

Cases
- 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