Criminal Trial Courts Bench Book Update 51 published

Update 51, May 2016

[3-600] Onus and standard of proof

Update 51 takes account of Decision Restricted [2016] NSWCCA 63. The case concerned jury directions in relation to the onus and standard of proof: see Special Bulletin 32.

The direction at [3-600] Suggested direction — where the defence has no onus has been amended to make clear that the expression “reasonable possibility” can be used where the Crown must negative a defence/issue to the criminal standard.

The reference in the last paragraph of [3-600] to “a reasonable possibility” has been amended so that it reads “the Crown has failed to eliminate a reasonable possibility”.

A new Note 3 has been added after the direction at [3-603]:

If a judge gives the jury written directions it is essential that the directions make clear where the legal onus is on the Crown: Decision Restricted [2016] NSWCCA 63 at [106], [112].