Criminal Trial Courts Bench Book Update 67 published

Outline of trial procedure has been updated at [1-005] Pre-trial procedures to add reference to Amagwula v R [2019] NSWCCA 156 which confirms that generally when an accused is arraigned they should enter a plea personally.

Cross-examination — improper; of defendant has been rewritten at [1-342] Cross-examination concerning complainant’s prior sexual history. There is discussion of the procedure for determining admissibility of evidence falling within the parameters of s 293 Criminal Procedure Act 1986 and the operation of the exclusions in s 293(4).

Jury has been updated at [1-505] Discharging individual jurors to include commentary on s 53A Jury Act 1977 which requires the mandatory discharge of a juror if they have become excluded or have engaged in misconduct relating to the trial. The heading at [1-‍510] has been re-named Discretion to discharge whole jury or continue with remaining jurors. Zheng v R [2021] NSWCCA 78, which discusses the discretion to discharge a whole jury has been added. Trevascus v R [2021] NSWCCA 104, which confirms the obligation of trial judges to give oral directions even when written directions have been provided, has been added at [1-535] Written directions.

Complaint evidence has been extensively revised and updated. At [2-560] Evidence of complaint where witness available to give evidence — s 66(2), the commentary concerning “fresh in the memory” has been revised and now includes additional discussion of The Queen v Bauer (a pseudonym) (2018) 266 CLR 56 and R v XY [2010] NSWCCA 181 and adds references to R v Gregory-Roberts [2016] NSWCCA 92 and Kassab (a pseudonym) v R [2021] NSWCCA 46. At [2-570] Suggested direction — where complaint evidence admitted under s 66(2), the direction has been re-written. It now incorporates suggested directions previously appearing at [2-‍5‍80] Where complaint evidence is limited under s 136 and [2-610] Evidence of complaint used to re-establish the complainant’s credit. At [2-590] Evidence of complaint where witness not available under s 65(2), Priday v R [2019] NSWCCA 272 has been added regarding the test in subs 65(2)(b), (c) and (d) Evidence Act 1995.

Onus and standard of proof has been revised and updated at [3-615] Notes. Gould v R [2021] NSWCCA 92 and Williams v R [2021] NSWCCA 25, which discuss the circumstances in which a Murray direction may or may not be required have been added. There have been some editorial changes to [3-600] Suggested direction — where the defence has no onus.

Summing-up format has been updated at [7-000] Suggested outline of summing-up (for use as an aide-memoire). Trevascus v R [2021] NSWCCA 104, which reiterates that written directions (including question trails) concerning the elements of the offence do not replace the need to give oral directions, has been added. Alharbi v R [2020] NSWCCA 130 has been added under Section 161 Criminal Procedure Act 1986 at [7-040] Notes concerning the judge’s obligation to put the defence case to the jury sufficiently to highlight evidence most relevant to the defence case. DC v R [2019] NSWCCA 234 has also been added at Desirability of the judge raising the identification of the relevant legal issues with counsel at the conclusion of the evidence. This reiterates that the obligation to ensure the accused receives a fair trial may require the judge to give directions notwithstanding counsel may request otherwise. Brief reference to El-Jalkh v R [2009] NSWCCA 139, RR v R [2011] NSWCCA 235, and The Queen v Abdirahman-Khalid [2020] HCA 36 has been added. Under Note 3, Essential elements of a summing-up, reference to Alharbi v R has been added, that is, that generally a summing-up should be concise to ensure the jury is not “wearied beyond the capacity of concentration”. There have been some editorial changes to [7-020] Suggested direction — summing-up (commencement).