R v Elsworth

Basis of the application

1. The application was initially brought on behalf of the accused pursuant to s 293(6) of the Act. However, in the face of advice that the Crown did not intend to adduce at trial evidence in relation to the complainant's sexual experience or evidence that the complainant had taken part in sexual activity of a general or specified nature, the accused alternatively sought leave to cross‑examine the complainant pursuant to the exception contained in s 293(4)(a) of the Act. For that reason, submissions were filed on behalf of the accused and the Crown in respect of the application pursuant to s 293(6), and then supplementary submissions were filed by both parties in respect of the alternative basis, pursuant to s 293(4)(a) of the Act.

Submissions on behalf of the accused

1. Counsel for the accused, in a written outline of submissions, conceded that the relevant evidence as identified above, when viewed in total, does or would engage s 293.
2. The accused relies on the exception in s 293(4)(a), and submitted that the complainant's statements to the accused, to the effect that she had suffered a history of sexual violence, amounts to evidence of her sexual experience. If that submission was not upheld, the accused submitted that evidence that the complainant had participated in a sexual activity is also evidence of "sexual experience", as it refers to the nature and extent of the complainant's sexual experience, relying on Decision Restricted [2020] NSWCCA 115 at [35].
3. The accused relied on the decision of GEH v R (2012) 228 A Crim R 32; [2012] NSWCCA 150 to submit that the evidence of the complainant's previous incident of sexual assault constituted her sexual experience "at the time of the commission of the offence". Thus, it was submitted the temporal requirement in s 293(4)(a) is satisfied, given that the incident that occurred five years beforehand, continued to have a direct impact upon the complainant's life, including: "(a) the nature and extent of her reaction to certain acts engaged in by the accused during sex (the choking), and (b) That since her break-up with her ex-girlfriend she had been "escaping and avoiding" the impact of the assault by going home with people from work or while she was working: (ERISP A236)."
4. The accused submitted that the prior assault formed a significant part of the complainant's sexual experience at the time of the alleged offending and was properly characterised as such.
5. The accused further submitted that the second requirement pursuant to s 293(4)(a), was that the relevant event (i.e. the complainant telling the accused that she was the victim of a sexual assault) must form part of "a connected set of circumstances in which the alleged prescribed sexual offence was committed".
6. It was submitted that the complainant's statement to the accused that she "had been raped before" (ERISP A240), formed a part of the connected set of circumstances in which the offences were alleged to have been committed. It was submitted it was the complainant who volunteered the fact of her prior sexual assault to the accused. Secondly, the complainant disclosed the fact as an explanation for or to give context to her actions or reaction on the night. Further, there was a factual contest as to what the complainant in fact told the accused about her mental condition. For example, she told police that she suffered PTSD "from a previous incident when she was 15 years old", without specifying the nature of the incident. The accused on the other hand, gave a consistent account to his friend, Rahel Goldman, and to the police, that the complainant told him she had been previously sexually assaulted and sought to explain to give context to her "sudden, negative reaction" to certain aspects of the sexual activity that took place between them.
7. It was submitted that the complainant's prior sexual assault was relevant to the accused's state of mind. He had repeatedly and emphatically insisted that the sexual activity between him and the complainant was consensual up until the point of the choking, at which point the complainant made a sudden strongly negative and "massive reaction" (ERISP A236).
8. The accused relied on GEH v R, supra, per Beech-Jones J at [82] to identify cases that fell within the exception, where evidence was found of some event that had relevance beyond what it might reveal about the complainant's credit. In each case the event was found to be so connected to the circumstances of the offence, that it bore on the objective likelihood of the offence having been committed.
9. It was submitted that the complainant's prior sexual assault bears directly and objectively on the following issues: (a) What sexual activity occurred and did not occur at the complainant's apartment; (b) Whether the complainant consented to any or all sexual activity up to the point of the choking; (c) Whether the sexual activity came to an end in the way described by the accused; (d) Whether or not the accused ceased any further sexual activity at the point that the complainant voiced her lack of consent; (e) The accused's state of mind (namely, his honest belief that the complainant was consenting, up until the point where she expressed her lack of consent); (f) Whether, as the accused says, the complainant connected her previous sexual assault to her reaction to the choking, and (g) The credibility of the complainant in circumstances where her status as a witness of truth, concerning otherwise uncorroborated allegations of sexual offences committed by the accused, is critical to the Crown case."
10. It was submitted that on the defence case, it was necessary to take into account what the complainant told the accused was the very reason for her "panic attack" on the bathroom floor, as she described it to police and others. If the jury did not hear anything of the conversation between the complainant and the accused following the cessation of their sexual encounter, the jury would hear only of the complainant's distress and would, in all likelihood, conclude "that such distress was on account of the complainant having been sexually assaulted in the way that she eventually descries to the police" (sic). Thus, the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission, pursuant to s 293(4).
11. In her original submissions, counsel for the accused attached an outline of questions proposed to be put to the complainant, in the event that the evidence is admitted. Those questions were as follows: "1. That the 'previous incident' when she was 15 years old and which resulted in PTSD, to which she referred in her police statement, was a sexual assault upon her; 2. That on the night of the alleged offending, the choking by the accused 'triggered' her memory of and/or trauma surrounding her sexual assault; 3. That she had told Mr Elsworth (by some form of words, such as 'history' of 'abuse', 'being raped' or 'sexual violence'), that she had previously been victim of a sexual assault or assaults; 4. That she had told Mr Elsworth that she suffered PTSD as a result of the sexual assault; 5. That she had told Mr Elsworth that the sexual activity with him had 'triggered' her memory of and/or trauma surrounding her sexual assault; 6. That she had told Mr Elsworth that since ending her last intimate relationship and owing to her prior sexual assault, she had gone home with (engaged in consensual sexual activity with) people from work (staff and or patrons), and that this was connected to (for example, a coping mechanism for) her previous sexual assault, and 7. That she did not object to or resist the sexual acts with Mr Elsworth up to the point of the choking in the manner which she asserted to the police."

Oral submissions of the accused

1. In her oral submissions, counsel for the accused rehearsed the factual matrix leading to the alleged offences by way of summary. She noted that the cases of the Crown and the accused diverge in respect of the complainant's allegation that she told the accused that she wished for no sexual activity to occur between them and that she neither consented nor participated in any sexual activity with the accused. There was a further divergence as to what the complainant told the police (i.e. that she had a panic attack) and what the accused told police that the complainant told him (that she suffered PTSD). Whilst it was unknown whether the complainant in her statement to the police was referring to an incident of a sexual nature, it was not an unreasonable assumption that it was, and the accused's submissions proceeded on that basis.
2. Counsel for the accused summarised the accused's case, that the complainant was flirtatious with him on the evening of 19 October, and expressed to him through various words and non-verbal cues, that she was sexually interested in him and willing to participate in sexual activity, although she did not wish to be kept up all night as she had another shift at the bar the following day. The accused's case is that what occurred thereafter was consensual sexual activity, including him performing cunnilingus on the complainant, when he began to introduce some foreplay techniques that included biting, and pressure around her neck, "a form of strangulation or what is referred to as choking in the context of sexual pleasure". It was during the application of pressure to her neck that the complainant had a sudden strong and negative reaction and it was at this point that she said, "no", and struggled free from the accused.
3. It was the accused's case that he could see that the complainant was visibly distressed as she sat at the entrance to her bathroom and cried. When she composed herself and made a comment to the effect of, "Why do I find myself in these situations?", upon questioning by the accused, the complainant went on to explain that her big sudden reaction was referenced by her previously being a victim of sexual assault. A short time later the two parted ways.
4. Counsel for the accused noted that the accused pressed, or at least relied upon in form, both applications under s 293(6) and s 293(4)(a), although she conceded that s 293(6) was not engaged by virtue of the Crown's intention not to rely on what was otherwise relevant and admissible evidence.
5. Counsel relied on Decision Restricted, supra, to distil the principles applicable to the exception in s 293(4).
6. Counsel submitted that the Crown's submission that the complainant's prior sexual history was more accurately described as "prior sexual activity", pursuant to s 293(4)(a)(i) was wrong in law.
7. Counsel also referred to HG v R (1999) 197 CLR 414 per Gleeson CJ at [28], where the Chief Justice held that evidence of a complainant's sexual assault by her natural father could have been either sexual assault or sexual experience. HG v R was cited as authority for the proposition that sexual activity or experience need not be consensual in order to fall under the provisions.
8. Counsel also relied on the Court of Criminal Appeal's decision in R v Edwards [2015] NSWCCA 24 to submit that prior sexual assaults were more likely characterised as sexual experience.
9. Counsel also relied on the Court of Criminal Appeal's decision in GEH v R, supra, and in particular, the judgment of Harrison J at [63] to [68] to submit that the incident that occurred to the complainant when she was 15 years of age was more properly characterised as sexual experience, and therefore within the exception in s 293(4)(a)(i).
10. It was submitted that the sexual experience of the complainant was volunteered to the accused immediately after the sexual activity specifically to explain her conduct, namely, the big sudden reaction alleged by the accused.
11. Counsel submitted that the court should not take a narrow approach to the statutory provision which permits the reception of evidence under s 293, relying on R v Morgan (1993) 30 NSWLR 543, per Gleeson CJ.
12. Counsel for the accused submitted that the phrase, "connected set of circumstances" in s 293(4)(a)(ii), is not to be construed as being limited to the circumstances propounded by the prosecutor, relying on Decision Restricted, supra, at [46]. Thus, the court could take into account the statements of the accused, both in relation to the text messages sent to his friend and his ERISP interview in determining the issues.
13. Counsel also referred to the complaint evidence relied on by the Crown of Ms Spears, Ms McGraw and Ms Rake, to submit that the evidence subject of the application was rendered as part of a connected set of circumstances in response to that evidence.
14. Counsel referred to the Court of Criminal Appeal's decision in R v Edwards, supra, as an example of where the exception in s 293 (4)(a)(i) is appropriate, where evidence of a complainant's sexual experience at the time of the commission of alleged prescribed sexual offences can form part of a connected set of circumstances in which the alleged sexual offences occurred. In that case the trial judge had erroneously excluded the evidence in question.
15. It was submitted that the fact that the prior sexual assault on the complainant occurred approximately 5 years before her encounter with the accused matters not, "because it was the impact upon her of that sexual assault that according to the complainant, still loomed large in her mind at the time and in the circumstances of the sexual encounter that she had with the accused".
16. It was submitted on behalf of the accused that the information about the complainant's prior sexual experience was volunteered to the accused and was therefore relevantly connected to the events as an explanation for the nature of her participation in sexual activity with him, including the way in which it came to an end. Counsel acknowledged that this was a significant factual dispute to be determined in the trial.
17. Counsel also referred to Taleb v R, supra, in which the accused had given a false account of events to the police and at trial gave evidence that he did so "on account of his fear at the time that the sexual activity had, for the most part, occurred, and that it was consensual".
18. In relation to s 293(6), it was submitted that the decision by the Crown not to adduce certain evidence was unusual, "if not one which has significant implications for the accused's right to receive a fair trial". In Taleb v R, supra, the Crown did not rely upon a statement made by the complainant to a doctor, that she had not had sexual intercourse with anyone else in the last seven days, whereas there was evidence upon which an inference could be drawn that she had done so. Taleb could be distinguished from the present case.
19. It was submitted that by seeking to excise the evidence the subject of the application, the Crown had made the decision not to lead such evidence deliberately in order to prevent the accused from relying upon the exception in s 293(6). This was described as being "highly unusual".
20. Secondly, the accused's explanation to Ms Goldman and to the police about the complainant's history of sexual abuse, was central to his state of mind and to the fact in issue of the occurrence of any sexual activity. It was submitted that the accused, from a time when he had no reason to believe on the objective evidence that he was to be investigated for any offence, had sought, arguably against his own interest, to raise the relevance in his mind of the complainant's prior sexual assault to what happened, how it happened, what he believed, how it ended and why certain things did or did not happen.

The Crown submissions

1. In its written outline of submissions in respect of the application made pursuant to s 293(6) of the Act, the Crown relied on R v Badem Cram [2008] NSWDC 225 as authority for the principle that where the Crown does not rely on material in the Crown brief which goes to sexual reputation, sexual experience or sexual activity of a complainant, there will be no relevant disclosure and therefore s 293(6) does not apply. In Spratt v DPP & Or [2010] NSWSC 355, Hidden J held that s 293(6) is concerned with the case presented by the prosecution at a hearing and that "material does not become part of the prosecution case simply because it is served". The Crown relied on Taleb v R [2015] NSWCCA 105 at [125], where the court held to the same effect.
2. In its supplementary submissions relating to the application of 293(4), the Crown also relied on GEH v R, supra, at [63] to [66] to submit that both limbs of s 293(4)(a) must be satisfied, namely, that the sexual activity, which the Crown here alleged characterised the previous rape of the complainant, must take place at or about the time of the commission of the alleged offences, and must form part of a connected set of circumstances for the exception pursuant to s 293(4)(a) to apply. Here, the sexual activity occurred five years beforehand and should not be characterised as sexual experience of the complainant as at the date of the alleged offences in October 2019.
3. Thus, the Crown submitted that neither limbs of the subsection were satisfied. Further, the Crown submitted that the prejudice relied on by the accused, namely, the complainant's distress and subsequent conduct, which was characterised by the accused as a "big reaction", was equally explicable on the basis of the heavy biting, choking and pinning down of the complainant, which preceded it. The occurrence of each of those acts was accepted by the accused in his ERISP.
4. Thus, the Crown submitted that the evidence was inadmissible.

Determination

1. Section 293 of the Act relevantly provides as follows: "s 293 Admissibility of evidence relating to sexual experience (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, … and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. … (6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified."
2. In respect of the words in s 293(4)(a), "taken part in by the complainant", Harrison J said in GEH v R, supra, at [63]: "… they serve on one view to distinguish between sexual experience and sexual activity. The former rather encompasses a state acquired over time, whether long or short, but which refers to the condition of having had experience in sexual matters, as opposed to a single or isolated sexual experience, or a number of them, at some particular time. The inquiry brought forward by the words 'sexual experience or lack of sexual experience' appears to be related to whether the complainant was or was not 'sexually experienced'. In contrast, the latter suggests a discrete sexual activity or lack of it that occurred, or in which the complainant took part or did not take part, at or about the time of the commission of the alleged offence by the appellant, but not at some other time."
3. His Honour went on to find that this distinction may be critical. In this case it is, and I find that the fact of the complainant's rape when she was 15, over five years prior to the alleged offences, was a discrete sexual activity and is properly characterised as such. As such, it does not satisfy the temporal test in s 293(4)(a)(i) of the Act.
4. I reject the accused's submission that the Crown's submission to that effect was wrong in law. As an unlawful sexual activity taken part in by the complainant five years prior to the alleged offences, I find that it did not form part of a continuum of sexual experience of the complainant thereafter in the sense referred to by Harrison J in GEH v R, supra, relating to whether or not the complainant was "sexually experienced". Further, unlike in R v Edwards, supra, it did not constitute sexual experience which made the complainant more likely to engage in the sexual activity with the accused.
5. As a discrete sexual activity that occurred five years prior to the alleged offences, I further find that such activity did not form part of a connected set of circumstances in which the alleged offences by the applicant were committed. Therefore, the second limb in s 293(4)(a)(ii) is not satisfied.
6. The fact that the complainant told the accused in the aftermath of the alleged offending conduct, that she suffered from PTSD from an incident that occurred when she was 15 years of age, is evidence that the Crown does not intend to adduce at trial and is clearly within the prohibition on evidence of prior sexual activity being adduced, constituted in s 293 of the Act. I do not accept the accused's submission that the Crown decision to not adduce that evidence is "highly unusual", as to do so would clearly breach s 293.
7. I reject the accused's submission that the complainant's prior sexual assault was relevant to the accused's state of mind at the time of the alleged offences. What took place in the aftermath of the events is a question for the trier of fact to determine. The fact that it occurred after the alleged offending could not be relevant to the issue of consent of the complainant, and the accused's knowledge of that consent at the time of the alleged offences.
8. The subsequent communications between the accused and Ms Goldman, in which he stated, "choking triggered something", and subsequent references to "triggering", "having triggered someone", and "because it triggered her", does not change the nature of the evidence so as to bring it within the exception in s 293(4). Similarly, statements made by the accused in his ERISP interview, identified in Annexure B to the affidavit of Ms Tang, which in effect amount to exculpatory statements, do not make the evidence admissible.
9. Nor am I persuaded that the accused is prejudiced in the way advocated by his counsel. The jury or trier of fact will be directed not to speculate about matters that are not in evidence. They will also be directed that it is routine for matters to be redacted from ERISP interviews that are irrelevant to the issues to be determined by them.
10. I further do not accept the prejudice said to arise from the lack of any explanation for what the accused characterises as a "massive reaction" to the sexual conduct. That ultimately is a matter for the jury to determine, and may, as the Crown has submitted, be explicable by the nature of the conduct itself.
11. I therefore find that the two limbs of s 293(4)(a)(i) have not been made out, in that the prior sexual activity of the complainant being raped as a 15 year old, was not taken part in by her at or about the time of the commission of the alleged offences, and further, pursuant to s 293(4)(a)(ii), was not part of a connected set of circumstances in which the alleged offences were committed.
12. The court was informed that the complainant had advised the Crown that disclosure of the evidence would cause her distress, humiliation and embarrassment. Whilst the evidence was clearly of probative value, if I am wrong in the above findings, I find that the probative value of the evidence is outweighed by any distress, humiliation or embarrassment that the complainant might suffer as a result of admission of evidence that she was raped when she was 15 years of age.
13. I find formally that the evidence is further not admissible pursuant to the exception in s 293(6).
14. For the above reasons I made the following orders on 17 March 2021: 1. On the accused's Notice of Motion filed with leave on 16 March 2021, I refuse the relief sought in prayer for relief number 1. 2. I order that the evidence identified in annexure B to the affidavit of Anna Tang, affirmed on 15 March 2021, be excluded from the trial. 3. It follows that the ERISP interview of the accused on 28 October 2019 should be edited to remove content that follows upon my ruling, identified in Ex A.5 on the voir dire, by blue and yellow highlighting, and that the transcript of the ERISP be amended accordingly.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2021