Criminal Trial Courts Bench Book Update 68 published

Closed court, suppression and non-publication orders has been revised and updated. At [1-354] Grounds for and content of suppression or non-publication orders, the commentary concerning whether an order is “necessary” or “otherwise necessary” has been revised to include discussion of John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, SZH v R [2021] NSWSC 95 and Lacey (a pseudonym) v Attorney General for NSW [2021] NSWCA 27, and discussion of A Lawyer (a pseudonym) v DPP NSW [2020] NSWSC 1713 has been added to the commentary concerning s 8(1)(c) Court Suppression and Non-publication Orders Act 2010. Reference to R v Collaery (No 7) [2020] ACTSC 165 has been added at [1-358] Closed courts regarding the operation of s 31 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

Procedure for fitness has been revised. R v Tonga [2021] NSWSC 1064 and R v Siemek (No 1) [2021] NSWSC 1292 which consider aspects of the transitional provisions for the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 have been added to [4-302] Application of the Act. [4-305] Fitness — federal offences now includes discussion of the procedure for Commonwealth fitness hearings in accordance with s 20B Crimes Act 1914. The table at [4-320] Pt 4 procedure has been updated to refer to R v Risi [2021] NSWSC 769 where the approach the determination of whether an accused was likely to become fit within 12 months for the purpose of a finding under s 47(1)(b) of the Act was considered.

Maintain unlawful sexual relationship with a child has been updated at [5-920] Notes to include JJP v R [2021] SASCA 53 which confirms that a summing-up for an offence against s 66EA Crimes Act 1900 must also address the elements of the offences comprising the alleged unlawful sexual acts underlying the offence. R v Mann [2020] SASCFC 69, which considered the meaning of “relationship” for the purposes of the SA equivalent provision, has been added.

A new chapter, Sexual touching, has been added at [5-1770] for the offences of sexual touching of adults and children under ss 61KC, 61KD, 66DA and 66DB Crimes Act 1900. Suggested directions are at [5-1775] Suggested direction — basic offence (61KC), [5-1785] Suggested direction — aggravated offence (61KD), and [5-1795] Suggested direction — sexually touching a child (s 66DA).

Prospect of disagreement has been updated at [8-100] Notes to refer to KE v R [2021] NSWCCA 119, which outlines the approach a trial judge should take to s 55F(2) Jury Act 1977 (Note 3). O’Brien v R [2019] NSWCCA 187, where observations were made concerning the interplay between ss 56 and 55F(2) of the Act, has been added to Note 8.