Criminal Trial Courts Bench Book Update 72 published

Update 72, April 2023

Update 72 amends the Criminal Trial Courts Bench Book to incorporate recent case law and legislative developments. The amendments include new chapters titled Defence of mental health impairment or cognitive impairment and Substantial impairment because of mental health impairment or cognitive impairment.

The following chapters have been revised:

Intoxication

  • [3-255] Suggested intoxication direction — offence of specific intent to add reference to Cliff v R [2023] NSWCCA 15 regarding intoxication and specific intent offences and what issues a jury should be directed to consider.

Tendency, coincidence and background evidence

  • [4-225] Tendency evidence to add reference to Bektasovski v R [2022] NSWCCA 246 which held tendency evidence required a sufficient link between distinct events but that link need not be peculiar, and Kanbut v R [2022] NSWCCA 259 where the cross-admissibility of tendency evidence is discussed.

Voluntary act of the accused

  • [4-360] A voluntary act to update cross-references to [6-050] Automatism and [6-200] Defence of mental health impairment or cognitive impairment.

Cross-examination concerning prior sexual history of complainants

  • [5-110] The exclusions in s 294CB(4) to add reference to Cook (a pseudonym) v R [2022] NSWCCA 282 and R v Elsworth [2022] NSWCCA 276 where various aspects of the exclusions in s 294CB(4) Criminal Procedure Act 1986 are discussed.

Automatism

  • [6-050] Preliminary notes to add reference to R v DB [2022] NSWCCA 87 as an illustration of non-insane automatism, and to update commentary and suggested directions to reference the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 which commenced 27 March 2021.

The following chapters have been re-written or substantially revised:

Defence of mental health impairment or cognitive impairment

  • [6-200]ff have been re-written to provide commentary and suggested directions for the defence of mental health or cognitive impairment and to include the new special verdict of act proven but not criminally responsible, following the commencement of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. This chapter replaces the chapter previously titled Mental illness — including insane automatism.

Substantial impairment because of mental health impairment or cognitive impairment

  • [6-550]ff have been significantly revised to include commentary and suggested directions for the partial defence to murder of substantial impairment because of mental health impairment or cognitive impairment in s 23A Crimes Act 1900. Commentary on the effect of self-induced intoxication, following the commencement of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 has also been included. This chapter replaces the chapter previously titled Substantial impairment by abnormality of mind.