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Court of Criminal Appeal 16 December 2022

Elsworth v R

[2022] NSWCCA 276

Sexual offencesAssault & violence
CRIME APPEAL APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT WHETHER VERDICTS INCONSISTENT

Citation: Elsworth v R [2022] NSWCCA 276
Court: Court of Criminal Appeal
Date: 16 December 2022
Judge(s): Garling J, Button J, Wilson J

Background

The appellant stood trial in the District Court of New South Wales on one count of assault occasioning actual bodily harm (AOABH) and three counts of sexual intercourse without consent. He pleaded guilty before the jury panel to the AOABH count. The jury returned a verdict of guilty on one count of sexual intercourse without consent (count 2, reflecting digital-vaginal penetration) and not guilty on the remaining two counts of sexual intercourse without consent.

The complainant, referred to as Ms B, was a 20-year-old bar manager in October 2019. She had made clear to the appellant before allowing him into her apartment that she would not have sex with him. She awoke to find him digitally penetrating her vagina while she was in bed with her face turned toward the wall.

The appellant sought leave to appeal his conviction on count 2, advancing two grounds: that the guilty verdict was unreasonable and inconsistent with the not guilty verdicts on the remaining counts; and that the trial judge wrongly excluded evidence of a prior sexual assault Ms B had disclosed to the appellant.

Legal Issues

  • Whether the jury's verdict of guilty on count 2 was unreasonable, applying the test in M v The Queen (1994) 181 CLR 487
  • Whether the guilty verdict on count 2 was logically inconsistent with the not guilty verdicts on counts 3 and 4, applying MacKenzie v R (1996) 190 CLR 348
  • Whether the trial judge erred in excluding evidence of Ms B's prior sexual assault history under s 293 of the Criminal Procedure Act 1986 (NSW)

Decision

Ground 1(a): Unreasonable verdict

The Court held that the verdict of guilty on count 2 was not unreasonable and was supported by the evidence before the jury (at [1]–[2], [108]). Wilson J, with whom Garling and Button JJ agreed, concluded that Ms B's evidence was compelling and well supported the verdict, notwithstanding the appellant's attempts to impugn it on six separate bases, all of which had been put to the jury (at [88], [101]). The Court rejected as stereotype-based the assertion that Ms B's conduct in allowing the appellant to her apartment, or the nature of her complaint, cast doubt on the reliability of her evidence (at [92], [98]).

Ground 1(b): Inconsistent verdicts

The Court held that the verdicts were not inconsistent (at [108]). A clear and rational distinction existed between count 2 and the remaining counts: the appellant had admitted, both to police and in cross-examination, that he digitally penetrated Ms B's vagina, precisely the conduct alleged in count 2 (at [103]). The Court confirmed the established principle that a jury is entitled to accept the inculpatory portion of an accused's account while rejecting the exculpatory portion (at [106]). The differing verdicts reflected cautious application of the criminal standard of proof rather than irrationality or compromise (at [107]–[108]).

Ground 2: Exclusion of prior sexual history evidence

The Court held that the trial judge was correct to exclude evidence concerning a sexual assault Ms B had experienced approximately five years before the events charged (at [127]). Section 293 of the Criminal Procedure Act operates as a broad exclusionary rule protecting sexual assault complainants, with only limited exceptions. The Court held that a past experience occurring five years before the charged offence could not satisfy the temporal requirements of s 293(4)(a), and that a complainant's memory of a past experience held at or about the time of the charged act does not bring that past experience within the exceptions (at [118]–[119]). The conversation in which Ms B mentioned the prior incident also took place after the alleged offences, meaning it could have had no bearing on the appellant's knowledge or belief as to consent (at [124]). Even if the analysis were wrong, the Court found the limited probative value of the evidence could not outweigh the distress and humiliation Ms B would suffer in being examined about it (at [126]).

Orders Made

  • Leave to appeal granted
  • The appeal dismissed
  • The commencement date of the sentence of 3 years imprisonment varied, to commence on the date the appellant enters custody pursuant to warrant, with the non-parole period of 18 months to expire 18 months from that date

Key Takeaways

  • A jury returning mixed verdicts in a sexual assault trial does not necessarily reject the complainant as a witness of truth. Where an accused's own admissions provide independent support for one count that is absent from others, differing verdicts may reflect careful, cautious reasoning rather than inconsistency (at [103], [107]).

  • Under the principle affirmed in Attwater v R; Maris v R [2021] NSWCCA 17, it is open to a jury to accept the inculpatory part of an accused's account (that a sexual act occurred) while rejecting the exculpatory part (that it was consensual), and this approach does not render the resulting verdict unreasonable or inconsistent (at [105]–[106]).

  • Section 293 of the Criminal Procedure Act 1986 (NSW) is designed to exclude evidence of a complainant's sexual activity broadly, with only limited exceptions. The Court of Criminal Appeal confirmed that a complainant's memory of a past sexual experience does not bring that experience within the temporal exceptions merely because the memory was held at or about the time of the charged offence (at [118]–[119]).

  • No error arose from rejecting the implausibility argument directed at the complainant's decision to allow the appellant to sleep at her apartment. The Court observed that consent to one thing (a person sleeping at one's home) is not consent to another (sexual activity), and that arguments premised on how a woman should behave in such circumstances may rest on stereotypical assumptions (at [92], [96]).

  • In dismissing the appeal, the Court was required to vary the commencement date of the custodial sentence because the appellant had been at liberty on bail between sentencing and the determination of the appeal, reflecting the practical consequence of bail being granted pending appeal in serious criminal matters (at [130]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases
- AJ v R [2022] NSWCCA 136
- Attwater v R; Maris v R [2021] NSWCCA 17
- Decision Restricted [2021] NSWCCA 51
- GEH v The Queen [2012] NSWCCA 150; 228 A Crim R 32
- Jackmain (a pseudonym) v R (2020) 102 NSWLR 857; 284 A Crim R 483; [2020] NSWCCA 150
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v R (1996) 190 CLR 348 at 366; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unrep)
- R v White (1989) 18 NSWLR 332
- SKA v The Queen (2011) 243 CLR 400; 2011 HCA 13