Criminal Trial Courts Bench Book Update 61.1

[1-349] Closed court, suppression and non-publication orders

This chapter has been substantially revised to include the following:

  • A reference to Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69, has been added at [1-349] Introduction to include that the onus is on the parties to make an application for appropriate orders at the hearing.
  • [1-350] The principle of open justice has been revised to include that, where reporting of particular proceedings is misleading, emotive and encourages vigilante behaviour, the message disseminated may be “antithetical to institutionalised justice” and a non-publication order may not compromise the public interest in open justice: AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046.
  • The commentary at [1-354] Grounds for and content of suppression or non-publication orders has been revised to include references to Darren Brown (a pseudonym) v R (No 2) and AB (A Pseudonym) v R (No 3) with respect to relevant considerations when determining whether an order should be made.
  • A new section titled Take-down orders has been added at [1-354].
  • A reference to JB v R [2019] NSWCCA 48, with respect to who may make an application under s 13 for review of an order, has been included in Review and appeals at [1-354].
  • A Checklist for suppression orders has been added at the end of the chapter.

[4-377] Suggested direction — complainant not called on retrial

An amendment has been made to the suggested direction to clarify that the jury cannot use the fact the complainant’s evidence was played to them from a video tape or audio recording, against the accused.

[5-1566] Suggested direction — sexual intercourse without consent (s 61I) where the offence was allegedly committed on and after 1 January 2008

The last paragraph of the suggested direction at [5-1566], under the heading “3. Knowledge”, has been amended. Previously that part of the direction commenced “In determining whether the Crown has proved beyond reasonable doubt that [the accused] actually knew that [the complainant] was not consenting….”. The word “actually” has been deleted.

[10-670]–[10-690] Remote witness facilities operational guidelines

The various operational guidelines have been removed and replaced with a direct link to the Victims Services published guidelines.