Criminal Trial Courts Bench Book Update 60 published

Numerous cases throughout the Criminal Trial Courts Bench Book have been updated with their authorised citations. In addition, the following commentary and directions have been updated:

[1-005] Outline of trial procedure

The commentary regarding Arraignment has been updated to include a discussion of R v Dirani (No 7) [2018] NSWSC 945 and R v Stephen (No 2) [2018] NSWSC 167, which concern the accused sitting in the dock during the trial (s 34).

In relation to Pre-trial rulings, the special provisions associated with the production, and admissibility, of counselling communications involving alleged victims of sexual assault (the sexual assault communications privilege) are discussed.

Commentary at Empanelling the jury has been substantially updated. It now includes detailed commentary addressing the various ways applications by jury panel members to be excused may be received and considered.

The commentary at Judge’s opening dealing with jury requests for transcript has been updated to include a reminder that the jury should be advised about restrictions on receiving pre-recorded evidence. At [1-015], the commentary at Witnesses in the Crown case has been updated to reiterate that where evidence of a witness is given by way of a recording, the jury should be advised to watch carefully, as they may not have the opportunity to watch the evidence again.

Reference to Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9, where the High Court held that a “Prasad direction” (so named from R v Prasad (1979) 2 A Crim R 45) should never be given, has been added under Close of Crown case, and the text updated.

The commentary at Crown Address in [1-020Addresses has been updated.

The commentary at [1-025Summing up has been updated to suggest that where there are multiple accused and/or multiple counts, a “verdict sheet” may be provided for the jury’s assistance.

[2-550] Complaint evidence

[2-615] Warning where difference in complainant’s account — prescribed sexual offences only
has been added. There is discussion of s 293A of the Criminal Procedure Act 1986. The section provides that judges may, in trials for a prescribed sexual offence, give the jury a direction in accordance with s 293A of the Criminal Procedure Act 1986 where there is evidence suggesting a difference in the complainant’s account. A suggested direction has been added at [2-618].

[5-556] Section 192E — Fraud

The commentary at [5-556] has been updated to include reference to Decision Restricted [2019] NSWCCA 43. The court held that, under s 192E(1)(b), it is not necessary for the Crown to prove an identified person was deceived or to lead direct evidence from a person or persons to establish its case of deception. The suggested direction at [5-558] has been updated to reflect this decision.

Table of Cases has been prepared and is now available including all cases to Update 60.