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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, NSW
Date: 16 December 2022
Judges: Garling J, Button J, Wilson J

Background

The appellant stood trial in the District Court of NSW before Judge Mahony SC and a jury on four counts: assault occasioning actual bodily harm (AOABH) and three counts of sexual intercourse without consent under the Crimes Act 1900 (NSW). The charges arose from events on 20 October 2019 at a Potts Point apartment, after the appellant had accompanied the complainant (referred to as Ms B) home following her late-night shift at a Bondi bar.

The appellant pleaded guilty to the AOABH count before the jury. The jury returned a guilty verdict on count 2, which charged digital-vaginal sexual intercourse without consent, and not guilty verdicts on counts 3 and 4. The appellant was sentenced to three years' imprisonment with a non-parole period of 18 months for count 2, and a 17-month conditional release order for the AOABH offence.

The appellant sought leave to appeal against his conviction on count 2 on two grounds, challenging both the reasonableness of the verdict and an evidentiary ruling made at trial.

  • Whether the guilty verdict on count 2 was unreasonable or could not be supported by the evidence, given the not guilty verdicts returned on counts 3 and 4 (inconsistent verdicts ground)
  • Whether the trial judge erred in refusing to admit evidence of prior sexual activity under s 293 of the Criminal Procedure Act 1986 (NSW)

Decision

Ground 1: Inconsistent Verdicts

The Court considered whether the jury's mixed verdicts were legally inconsistent. The applicable standard, drawn from authorities including M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606, required the Court to assess whether the guilty verdict was unreasonable or unsupported having regard to the whole of the evidence. All three judges conducted their own independent assessment of the trial evidence and were satisfied the conviction on count 2 was neither unreasonable nor unable to be supported.

Wilson J (with whom Garling and Button JJ agreed) reasoned that mixed verdicts are not automatically inconsistent. Juries may return different verdicts on separate counts for reasons that do not undermine the soundness of any individual guilty verdict, including different assessments of the evidence going to each discrete act. The Court found adequate evidentiary support for the count 2 conviction and declined to disturb it.

Ground 2: Refusal to Admit Prior Sexual Activity Evidence

Section 293 of the Criminal Procedure Act imposes restrictions on the admission of evidence of a complainant's prior sexual activity. The trial judge refused the appellant's application to lead such evidence. The Court of Criminal Appeal upheld that ruling, finding no error in the judge's exercise of the discretion to exclude the material.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • The commencement date of the three-year sentence varied, such that the term of imprisonment is to commence on the date the appellant enters custody pursuant to warrant, with the 18-month non-parole period running from that date

Key Takeaways

  • Mixed jury verdicts (guilty on one count, not guilty on others arising from the same incident) are not automatically inconsistent; each count is assessed on its own evidentiary foundation.
  • In dismissing the appeal, the Court of Criminal Appeal applied the well-established test that a conviction will only be set aside as unreasonable if, having considered the whole of the evidence, the court is satisfied that the jury acting rationally could not have been satisfied of guilt beyond reasonable doubt.
  • The statutory restrictions in s 293 of the Criminal Procedure Act 1986 (NSW) on evidence of a complainant's prior sexual activity were properly applied at trial; no error in refusing the application to admit such material was established.
  • Where an appellant is granted bail following sentence and remains at liberty pending an unsuccessful appeal, the court must adjust the commencement date of the custodial sentence to account for the period spent on bail.
  • No error was established in either the jury's reasoning or the evidentiary rulings, and all three judges independently reached the same conclusion on the reasonableness of the verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61I, 578A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Procedure Act 1986 (NSW), s 293 (now s 294CB)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Evidence Act 1995 (NSW)

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