Elsworth v R [2022] NSWCCA 276

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elsworth v R [2022] NSWCCA 276 Hearing dates: 24 October 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Before: Garling J at [1] Button J at [2] Wilson J at [3] Decision: 1. Leave is granted to appeal. 2. The appeal is dismissed. 3. The date upon which the sentence imposed upon the applicant on 15 October 2021 is to commence is varied, such that the sentence of 3 years imprisonment is to commence on the date upon which the applicant enters custody pursuant to warrant. The non-parole period of 18 months imprisonment will expire 18 months after that date. Catchwords: CRIME – APPEAL – appeal against conviction – sexual intercourse without consent – verdict of guilty returned to one count and not guilty to two further counts – whether verdicts inconsistent – whether offence to which guilty verdict returned not supported by the evidence – whether error in refusal to allow evidence to be led of prior sexual activity Legislation Cited: 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 Cited: 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 Category: Principal judgment Parties: Benjamin Scott Elsworth (Applicant) Rex (Respondent) Representation: Counsel: P Boulten SC & L Hutchinson (Applicant) C Curtis (Crown) (Respondent)