R v Elsworth [2021] NSWDC 553

District Court New South Wales

Medium Neutral Citation: R v Elsworth [2021] NSWDC 553 Hearing dates: 16-17 March 2021 Decision date: 19 March 2021 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Application by accused to allow evidence to be adduced pursuant to s 293 of the Criminal Procedure Act 1986 refused. Catchwords: Evidence of prior sexual activity taken part in by the complainant Legislation Cited: Criminal Procedure Act 1986 Cases Cited: 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 Category: Procedural rulings Parties: Director of Public Prosecutions (Crown) Benjamin Scott Elsworth (Accused) Representation: Counsel: Ms C Dodds (Crown) Ms L Hutchinson (Accused)

Solicitors: E McDonald (Crown) A Tang (Accused) File Number(s): 19/338327 Publication restriction: Pursuant to s 578A of the Crimes Act 1900 it is an offence to publish any matter which identifies the complainant or any matter which is likely to lead to the identification of the complainant.

Judgment on notice of motion 1. On 16 March 2021 the accused was arraigned on an Indictment containing one count of assault occasioning actual bodily harm (Count 1) and three counts of having sexual intercourse with EB without her consent, and knowing that EB was not consenting (Counts 2, 3 and 4). The accused entered a plea of guilty Count 1, and pleas of not guilty to Counts 2, 3 and 4. The offences were alleged to have taken place on 20 October 2019. 2. The accused was granted leave to file a Notice of Motion dated 15 March 2021. The prayers for relief included the following: 1. That the evidence subject of the s 293 application by the accused (set out in annexure B to the affidavit of Anna Tang dated 15 March 2021) be admitted and cross-examination upon that evidence be allowed. 2. That the portions of the ERISP of the accused dated 28 October 2019 (set out in annexure A to the affidavit of Anna Tang dated 15 March 2021) be excluded or corrected, as sought in that document. 1. The accused relied on the aforementioned affidavit of Anna Tang, affirmed on 15 March 2021. 2. Annexure B set out the material said to be in breach of s 293 of the Criminal Procedure Act 1986 ("the Act"). It included evidence from the statement of EB, the statement of Louise Ellengold, a friend of the accused who exchanged text messages with him on 20 and 21 October 2019, and various passages from an ERISP interview of the accused conducted on 28 October 2019. 3. The Crown case is that the accused met the complainant on 19 October 2019 when the complainant was working as a bar manager at licensed premises in Bondi. The accused was there with a group of seven people who arrived between 8.30pm and 9pm, and left shortly after 12am. The complainant served the group during the evening, and prior to the group leaving, the accused approached the complainant and asked for her phone number. The complainant gave him her phone to put in his number. After the group left, the complainant received a text message from the accused asking if she wanted to have a drink. They exchanged a number of messages and in one of which, the complainant told the accused that she "was tired and wanted to go home to bed". The accused returned to the premises and waited for the complainant to finish work. The complainant refused an offer to go out with the accused because she had to be back at work in eight hours. The complainant locked the premises at about 1.30am, following which, a conversation took place between the accused and complainant in which she told him that he could come back to her place, but that she was "literally going to sleep, I will not have sex with you". 4. The complainant and the accused returned to the complainant's one bedroom apartment. The complainant showered and changed into a pyjama-type t‑shirt and underwear. The accused and the complainant got into her bed. The accused was wearing boxer shorts and a white t-shirt. The complainant lay on her side facing the wall, with the accused behind her. He then put his arms around her from behind and cuddled her so that they were "spooning" for about five to 10 minutes. 5. It is the Crown case that the accused started running his hands down the complainant's leg, which the complainant ignored. The Crown case is that the accused then digitally penetrated the complainant's vagina without warning. He then rolled her onto her stomach so that she was face down on the bed. The Crown case is that the complainant then "felt his penis inside her vagina". 6. The Crown case is that the accused then grabbed the complainant around the neck by placing his arm around her throat so that she could not breathe or talk. He continued to penetrate the complainant with his penis in her vagina whilst choking her. 7. The Crown case is that the accused then let go of the complainant's throat and she was able to take some breaths. The accused then put his arm back around her neck and on this occasion his forearm was over her mouth and was pushing upwards so that her top teeth were being pushed into her bottom gum. 8. The Crown case is that the complainant was then "trying to fight him off", and that she was "trying to loosen his grip … by thrashing her body around side to side and was pulling at his arm around the bicep to release the pressure and pain he was causing". 9. The Crown case is that the accused released his arm and then pushed the complainant's head down into the mattress, and that "at some point he also bit her left shoulder and put a finger into her anus". 10. The Crown case is that the accused pulled his penis out of the complainant's vagina and whilst still holding her down, he bit the bottom of her buttock cheek. The complainant was saying "No, no stop" and was trying to get out of the accused's grip. She eventually managed to crawl off the bed and into the bathroom. 11. The Crown case is that the complainant heard the accused say something like, "I can be patient". He then said, "Come back and sit on the bed". The complainant, who was still in shock, got back into bed and the accused said, "I'm just going to hold you". He then whispered to her, "I know you don't want to have sex, but I just can't help myself". 12. The Crown case is that the complainant then got out of bed and sent a text message to a friend, asking her to call the complainant. She received that call as an excuse to get out and leave the premises, telling the accused, "I'm sorry, my friend is in trouble and I have to go". The complainant then went into the bedroom to get some clothes to put in a bag and the Crown case is that the accused followed her into the bedroom and threw her on the bed and pinned her down. The complainant pushed him off and said she had to leave, and she suggested that he come down with her, as she did not want him staying in her apartment. The complainant had called an Uber, and when it arrived, the accused said to her, "when this is all over, I want to take you out". 13. The Crown case will rely on complaint evidence as to what the complainant's friend saw of her injuries to her shoulder and bottom cheek, and evidence that the complainant was "hysterically crying and shaking" when she saw her. Further, when she returned to work at about 11am the following morning, the Crown will rely on complaint evidence from the owner of the licensed premises, Kate McGraw, and her friend, Zoe Rake, as to what they observed and what the complainant told them. 14. At 3.27am, the accused had sent the complainant a text stating, "You don't deserve all this stress". At 3.30am, he sent a further text to the complainant stating, "My apartment …for when life is less stressful*, image of an apartment block included with message". 15. The following morning at 11.26am, Zoe Rake used the complainant's phone to send to the accused the following message: "Hi, I don't know if you were fully with it last night, but what happened was not consensual, you strangled me to near asphyxiation. I could not walk, I had to crawl to the bathroom, I'm physically bruised and am not okay. You came into my home and violated my personal space. Please don't ever contact me again." 1. The complainant underwent a SAIK examination at RPA hospital at 00:54 hours on 21 October 2019 and reported the matter to police on 26 October 2019. 2. On 28 October 2019, police attended the accused's place of work and introduced themselves to the accused, who said, "I know why you guys are here". The accused was conveyed to Kings Cross Police Station where he was cautioned and underwent an ERISP interview (Ex A.5). 3. In his ERISP interview the accused denied digital penetration of the complainant's vagina, penile-vaginal penetration and digital penetration of her anus. He told police that they "started kissing and kissing progressed to foreplay", and stated that he was "dominant in the foreplay". The accused told police that the complainant didn't respond initially when he began to bite and choke her, but stated that the complainant then, "struggled out and said 'no' and it was a very big reaction". He then said, "And that was the stopping". 4. The complainant made a statement to police on 26 October 2019 (Ex A.3 on the voir dire). In it, at [17], she told police that she suffers from PTSD from a previous incident when she was 15 years old. At [18], the complainant told police that she heard the accused saying something like, "I can be patient", that she was scared and so shocked that she didn't know or comprehend what was happening. She told police that she couldn't move and that she wanted the accused out of her apartment, "and I told him that I suffer from PTSD in the hope that he would go".