Criminal Trial Courts Bench Book Update 64 published

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

HT v The Queen [2019] HCA 40, which concerns the orders that may be made where an offender has assisted authorities, has been added at [1-349] Introduction. [1-350] The principle of open justice has been revised to include the discussion in HT v The Queen at [44], [46] that in appropriate cases, courts have jurisdiction to modify the general rules of open justice and procedural fairness to make non-publication orders for particular kinds of cases. DRJ v Commissioner of Victims Rights [2020] NSWCA 136, where the court found s 6 of the Court Suppression and Non-publication Orders Act 2010 must be considered, even if one of the grounds of necessity under s 8 is established, has been added. At [1-354] Grounds for and content of suppression or non-publication orders, Le v R [2020] NSWCCA 238 has been added as an example of where an order anonymising the complainant’s name was deemed necessary, even though it encroached on the principle of open justice, to encourage certain victims of crime, such as sex workers, to report crimes. DRJ v Commissioner of Victims Rights has been added to make clear that when making an order, it is preferable to specify a period of time to which the order relates.

Commentary relating to Commonwealth provisions at [1-358] Closed courts has been updated to reflect amendments to the Crimes Act 1914 (Cth) and the Criminal Code as a result of the Espionage and Foreign Interference Act 2018.

[2-300] Causation

Swan v The Queen [2020] HCA 11 has been added at [2-305] Causation generally. That case reiterated the requirement that proof of the element that the act of the accused caused death requires the jury to be satisfied beyond reasonable doubt that the act of the accused was a “substantial or significant cause of death” or a “sufficiently substantial” cause: at [24]. The Suggested direction at [2-310] has also been substantially revised.

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

This chapter has been revised and updated. GBF v The Queen [2020] HCA 40 at [23], which reiterated that an Azzopardi direction is required in almost all cases where the accused does not give evidence, has been added. The Suggested direction at [2-1010] has been substantially revised.

The Table of Cases has been updated to Update 64.