Update 71, December 2022
Update 71 amends the Criminal Trial Courts Bench Book to incorporate recent case law and legislative developments. The following chapters have been revised:
Outline of trial procedure:
- [1-005] Pre-trial procedures to add reference to Alameddine v R [2022] NSWCCA 219, where the principles to be applied under ss 131–132A of the Criminal Procedure Act 1986 are discussed.
The jury:
- [1-495] Offences and irregularities involving jurors to add reference to Vella v R [2022] NSWCCA 204 regarding the admission of evidence concerning jury deliberations in appeals against conviction.
- [1-510] Discretion to discharge whole jury or continue with remaining jurors to add reference to Watson v R [2022] NSWCCA 208 regarding the “high degree of necessity” required to prevent a miscarriage of justice before a jury will be discharged.
Privilege against self-incrimination:
- [1-720] Notes to add reference to Spence v The Queen [2016] VSCA 113 regarding disclosing to the jury the granting of a s 128(3) Evidence Act 1995 certificate to a witness.
Accusatory statements in the presence of the accused:
- [2-000] Introduction to add reference to DPP (NSW) v Sullivan [2022] NSWCCA 18 regarding the discretion to exclude evidence of admissions under s 90 Evidence Act.
Admissions to police:
- [2-120] Position under the Evidence Act to add reference to Decision Restricted v R [2022] NSWCCA 95 and Nguyen v The Queen (2020) 269 CLR 299 regarding the caution to be exercised when out-of-court statements admitted into evidence may be mixed and complex.
Circumstantial evidence:
- [2-500] Introduction to add reference to Gwilliam v R [2019] NSWCCA 5, Wiggins v R [2020] NSWCCA 256 and Davidson v R (2009) 75 NSWLR 150 regarding the applicable principles for assessing what is a reasonable inference in circumstantial evidence cases.
- [2-510] “Shepherd direction” — “link in the chain case” to add reference to Davidson v R (2009) 75 NSWLR 150 and D’Agostino v R [2019] NSWCCA 259 regarding the test for what constitutes an indispensable “intermediate fact” in a circumstantial evidence case.
Tendency, coincidence and background evidence:
- [4-225] Tendency evidence to add reference to TL v The King [2022] HCA 35 regarding applicable principles governing similarity between tendency evidence and charged offences.
- [4-226] Standard of proof — s 161A Criminal Procedure Act 1986 to add reference to JS v R (2009) 75 NSWLR 150 regarding the application of s 161A Criminal Procedure Act to charged acts and observations concerning jury directions on standard of proof.
- [4-230] Tendency evidence in child sexual assault proceedings — s 97A to add reference to JW v R [2022] NSWCCA 206 regarding the application of transitional provisions for s 97A Evidence Act and the commencement of “hearings”, including special hearings.
Procedures for fitness to be tried (including special hearings):
- [4-320] Part 4 procedure to update the Procedure Table and add reference to R v Woodham [2022] NSWSC 1154, regarding the meaning of “will not” in s 47(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and to add reference to AG (NSW) v Bragg (Preliminary) [2021] NSWSC 439 and AG (NSW) v Wright (by his tutor Johnson) (Preliminary) [2022] NSWSC 537 regarding the statutory requirements to be applied when determining whether to grant an extension order over a forensic patient.
- [4-330] Extension orders to add reference to AG (NSW) v Bragg (Preliminary) [2021] NSWSC 439 and AG (NSW) v Wright (by his tutor Johnson) (Preliminary) [2022] NSWSC 537 regarding the interpretation of ss 121–122 of the Mental Health and Cognitive Impairment Forensic Provisions Act.