Criminal Trial Courts Bench Book — Update 62 published

The following changes have been incorporated into this update:

[1-250] Contempt

This chapter has been revised at [1-320] The offence of disrespectful behaviour to include the case of Elzahed v Kaban [2019] NSWSC 670, where Harrison J considered the elements of the offence.

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

R v Martinez (No 7) [2020] NSWSC 361, which considers the jurisdiction of a court to award costs in applications for orders under the Court Suppression and Non-publication Orders Act 2010 in criminal proceedings, has been added to the introduction.

R v Elmir [2018] NSWSC 308 has been added to the commentary at [1-354] Grounds for and content of suppression or non-publication orders. In that case, suppression orders were made with respect to particular police methods used during a police investigation of foreign incursion offences.

[2-1000] Election of accused not to give evidence or offer explanation

The introduction has been revised to refer more directly to Azzopardi v The Queen (2001) 205 CLR 50 at [51], and Martinez v R [2019] NSWCCA 153 has been added as an example of a case where the failure to give a full direction was found to be an error.

[3-600] Onus and standard of proof

The suggested direction at [3-600] has been revised to include the form of Liberato direction proposed by the High Court in De Silva v The Queen [2019] HCA 48.

The title of [3-605] The Liberato direction — when a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness or the accused’s account in a recorded police interview has been revised. The notes have also been revised and updated. Commentary concerning De Silva v The Queen [2019] HCA 48 has been added. In that case, the High Court identified, at [9] and [11]–[13], the circumstances when a Liberato direction should be given.

[4-370] Witness — not called

The commentary and suggested direction at [4-377] Complainant not called on retrial have been updated to address the circumstance where the complainant is a child and their evidence was originally given during a pre-recorded evidence hearing in accordance with the procedure in Criminal Procedure Act 1986, Sch 2, Pt 29, Divs 1–4.

[5-905] Maintain unlawful sexual relationship with child

A new chapter for the offence of maintaining an unlawful sexual relationship with a child contrary to s 66EA of the Crimes Act 1900 has been added at [5-905][5-920].

[5-1100] Murder

The commentary at [5-1140] Alternative verdict of manslaughter has been revised. While the jury should be instructed about the availability of a verdict of manslaughter regardless of the attitude taken by the parties, and even where one or both of the parties object, following Martinez v R [2019] NSWCCA 153, the duty extends to leaving the possibility of returning a verdict of manslaughter on a different basis to that proposed by counsel at trial.

[7-000] Summing up format

The notes 5 and 6 at [7-040] Notes have been revised and updated.

At Note 5 Requirements of fairness, Castle v The Queen (2016) 259 CLR 449 at [59] regarding fairness extending to explaining any basis for which the jury might properly return a verdict in the accused’s favour has been added. Further, reference to the defence case encompasses any challenge to the prosecution evidence and submissions: Dixon v R [2017] NSWCCA 299 at [14], where the NSWCCA said that referring to the defence case extends to any challenge to the prosecution evidence and submissions, has also been added.

Note 6 Circumstances in which judge may express his or her view of the facts, has been updated to add reference to McKell v The Queen (2019) 264 CLR 307 where the High Court reiterated that while a trial judge may comment on the facts during a summing-up, it is preferable not to do so, unless it is necessary to maintain fairness between the parties. Decision Restricted [2019] NSWCCA 305 has been added as an example of a case where the trial judge crossed the line of permissible comment.