Criminal Trial Courts Bench Book Update 70 published

Update 70 amends the Bench Book to incorporate recent case law and legislative developments.

Sexual assault law

Commentary on sexual assault law has been compiled under two headings within the book: Sexual assault trials — procedural matters at [5-000]ff and Sexual assault offences at [5-600]ff. The following chapters in these sections have been revised or added:

  • Expert evidence — specialised knowledge of child behaviour
    This new chapter at [5-300] includes a discussion of AJ v R [2022] NSWCCA 136 which considered the admissibility of generalised statements concerning the behaviour of child sexual abuse victims and offenders.
  • Pre-recorded evidence in child sexual offence proceedings
    A new chapter at [5-400] provides commentary on the Child Sexual Offence Evidence Pilot Scheme and suggested directions for pre-recorded evidence.
  • Maintain unlawful sexual relationship with a child
    The Suggested direction — maintain unlawful sexual relationship with child at [5-720] has been revised and updated and the Notes at [5-730] have been updated in light of the comments made in R v RB [2022] NSWCCA 142 about the elements of the offence of maintain unlawful sexual relationship with child.
  • Sexual intercourse without consent — until 31 May 2022
    This chapter at [5-800]ff contains commentary for sexual intercourse without consent offences committed on or until 31 May 2022. Commentary for Multiple counts — R v Markuleski has been moved to a new chapter at [3-400].
  • Sexual intercourse without consent — from 1 June 2022
    This new chapter has been added at [5-900] to provide commentary and a suggested direction for the definition of consent in sexual assault trials where the offence was committed on or from 1 June 2022. The definition of consent in the former Crimes Act 1900, s 61HE is replaced with Pt 3, Div 10, Sub-div 1A (ss 61HF–61HK) following the commencement of the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021.
  • Sexual touching
    The chapter has been updated to include a new suggested direction for sexual touching offences when the offence is committed from 1 June 2022: Suggested direction — basic offence (s 61KC) — from 1 June 2022 at [5-1115]. The Notes at [5-1140] for the aggravated offences have been amended to add reference to JH v R [2021] NSWCCA 324 concerning how to approach the question of a serious physical disability. The Notes at [5-1160] for sexual touching of a child have been amended to include reference to Stephens v The Queen [2022] HCA 31 concerning the application of s 80AF of the Crimes Act 1900 for uncertain offence dates.

The following chapters have been revised as indicated:

  • Self-represented accused
    Commentary at [1-820] Suggested advice and information to accused in the absence of the jury has been updated to include the case of Amagwula v R [2019] NSWCCA 156 where it was held pleas of not guilty not personally entered by the accused on arraignment before the jury panel did not vitiate the trial.
  • Expert evidence
    The commentary in this chapter has been revised in light of AJ v R [2022] NSWCCA 136 in relation to specialised knowledge concerning child behaviour and relocated to the new chapter at [5-300] Expert evidence — specialised knowledge of child behaviour. Minor amendments have been made to [2-1130] Suggested direction — expert witnesses.
  • Multiple counts — R v Markuleski
    A new chapter has been added at [3-400].
  • Onus and standard of proof
    The commentary in this chapter has been revised and updated concerning the application of a Murray direction. Haile v R [2022] NSWCCA 71, in which a summary is provided of a trial judge’s obligations when summing-up to the jury, has been added at [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. Minor amendments have been made to the suggested direction at [3-610] Essential Crown witness (“Murray direction”) (in cases other than prescribed sexual offences). The Notes regarding the direction in prescribed sexual matters at [3-615] have been revised to include Williams v R [2021] NSWCCA 25 and AB v R [2022] NSWCCA 104.
  • Summing-up format
    The suggested direction at [7-020] Summing-up (commencement) has been revised and updated. [7-040] Notes has been updated to reflect the decision of Haile v R [2022] NSWCCA 71.