Citation: R v Elsworth (No 2) [2021] NSWDC 554
Court: District Court of NSW
Date: 19 March 2021
Judge: Mahony SC DCJ
Background
The accused faced multiple counts of sexual assault. A related earlier ruling had excluded certain evidence under section 293 of the Criminal Procedure Act 1986, which governs the admissibility of evidence about a complainant's sexual experience. That ruling meant portions of the accused's electronically recorded interview with police (ERISP) would be redacted before being played to a jury.
The accused applied, with leave, for the trial to proceed before a judge alone rather than a jury. The application was heard over two days, with the Crown not opposing leave but opposing the application itself.
The central question was whether the prejudice arising from the redacted ERISP, and other evidentiary limitations flowing from the section 293 ruling, made a judge-alone trial necessary in the interests of justice.
Legal Issues
- Whether leave should be granted for the accused to apply for a trial by judge alone under section 132A of the Criminal Procedure Act 1986
- Whether the prejudice caused by the redacted ERISP and related evidentiary limitations was of a kind that could not be cured by jury directions
- Whether the issues of consent and the accused's knowledge of consent required the application of objective community standards, making a jury trial preferable
- Whether the interests of justice under section 132 of the Criminal Procedure Act 1986 favoured trial by judge alone
Decision
Issue 1: Leave to apply
The court granted leave under section 132A for the accused to bring the application. The Crown did not oppose this step, and the application proceeded to a substantive hearing.
Issue 2: Prejudice from the redacted ERISP
The accused advanced six bases of prejudice. These included: gaps in the ERISP that would signal redactions to the jury; the absence of evidence that he had sought to comfort or inquire after the complainant following her distressed reaction; his limitation to bare denials on aspects of the alleged conduct; and his inability to explain an alternative innocent cause for the complainant's distress. The court found that these matters did not rise to the level of prejudice considered in R v Simmonds; R v Moore (No 4), where the presiding judge was unable to envisage any direction capable of alleviating the unfairness (at [38]). Gaps in an ERISP are routine in many trials and can be managed through proper jury directions (at [39]). The court also accepted that some evidence of the accused comforting the complainant remained in the ERISP, and that the complainant's described reaction was reasonably explicable as a response to admitted physical conduct, including biting and choking (at [39]).
Issue 3: Community standards and credibility
The court rejected the accused's submission that consent and knowledge of consent do not involve the application of objective community standards (at [35]). Those issues are inextricably intertwined with the credibility and reliability of both the complainant's and the accused's evidence, and are preferably determined by a jury (at [35]). The court noted that juries are equipped to apply community standards on questions of this kind, consistent with the principle in section 132(5) of the Criminal Procedure Act 1986 (at [33]).
Issue 4: Interests of justice
Balancing all considerations, the court found the interests of justice required the matter to proceed before a jury (at [40]). The alleged prejudice was not of a character that could not be addressed through appropriate directions, and the central factual questions called for the application of community standards rather than purely technical or legal analysis.
Orders Made
- Leave to bring the application for trial by judge alone granted pursuant to section 132A of the Criminal Procedure Act 1986
- Application for trial by judge alone refused
Key Takeaways
- Issues of consent and an accused's knowledge of consent in sexual assault trials involve the application of objective community standards and are inextricably linked to credibility and reliability assessments, making jury determination preferable (at [35]).
- Gaps in a redacted ERISP do not automatically generate the kind of irremediable prejudice required to justify a judge-alone trial; such gaps are routine and can be addressed through appropriate jury directions (at [39]).
- Under section 132 of the Criminal Procedure Act 1986, there is no presumption in favour of jury trial, but an accused's subjective preference for a judge-alone trial carries less weight than the reasons underlying that preference (at [34]).
- The threshold for a successful judge-alone application on prejudice grounds is high: the prejudice must be of a kind that the judge cannot envisage any direction alleviating, as illustrated by R v Simmonds; R v Moore (No 4) (at [38]).
- Where community standards inform the central factual issues at trial, section 132(5) of the Criminal Procedure Act 1986 expressly contemplates that the interests of justice may be best served by a jury of lay people (at [33]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW)
Cases
- 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