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Criminal Trial Courts Bench Book Update 74 published

Criminal Trial Courts Bench Book front cover
2 October 2023

Update 74 amends the Criminal Trial Courts Bench Book to incorporate recent case law and legislative developments. Two new chapters, Judge-alone trials and Sexual act have been added to the Book and a number of chapters have been significantly revised. Outline of trial procedure

  • The chapter at [1-000]ff has been revised and includes new commentary at [1-005] on pronunciation and forms of address to be used for counsel, parties, children, witnesses, interpreters, solicitors and others relevant to the case.

New chapter: Judge-alone trials

  • A new chapter at [1-050]ff provides commentary on the relevant statutory provisions and case law applying to judge-alone trials.

Child witness/accused

  • [1-118] Unsworn evidence — conditions of competence to add reference to SC v R [2023] NSWCCA 111 where the conviction was set aside for failure of the court to comply strictly with s 13(5)(c) of the Evidence Act 1995.

Jury

  • The chapter at [1-440]ff has been revised and includes updated suggested (oral) directions at the commencement of the trial following empanelment (at [1-490]) and reference to the following cases:
    • Sun v R [2023] NSWCCA 147 and Addo v R [2022] NSWCCA 141 at [1-505] regarding discretionary discharge of individual jurors
    • Cook (a pseudonym) v R [2022] NSWCCA 282 at [1-535] regarding written directions, and
    • Fantakis v R [2023] NSWCCA 3 at [1-540] regarding verdict juries.

Oaths and affirmations

  • [1-620] Oath and affirmation for sheriff’s officer upon sequestration of jury to add an example of an oath and affirmation for sheriff’s officer upon sequestration of jury.

Complicity

  • [2-710] Suggested direction — accessory before the fact to add reference to Jaghbir v R [2023] NSWCCA 175 confirming, where the accused is charged as an accessory before the fact, the principal offender’s identity is not an element of the offence.

Consciousness of guilt, lies and flight

  • [2-955] Lies to add reference to AB v R [2023] NSWCCA 165 regarding when it may be necessary for the judge to give jury directions about consciousness of guilt reasoning (even when the Crown expressly declaims its use) due to the Crown’s conduct of the trial.

Onus and standard of proof

  • [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 to add reference to Park v R [2023] NSWCCA 71 regarding three different aspects of the Liberato and De Silva direction and the need for clear jury directions on all the aspects.

Silence — Evidence of

  • [4-130] Notes to add reference to Rahman v R [2021] NSWCCA 209 regarding the suggested direction at [4-110] and the need for a judicial direction on adverse inferences to be given at the time evidence is adduced of an accused having exercised the right to silence during police questioning.

Complaint evidence

  • [5-060] Notes to add reference to Park v R [2023] NSWCCA 71 regarding the suggested direction at [5-055] and the application of s 294(2)(c) of the Criminal Procedure Act 1986 pertaining to absence or delay in complaint.

Maintain unlawful sexual relationship with a child

  • The chapter at [5-700]ff has been extensively revised and includes updated suggested direction — maintain unlawful sexual relationship (at [5-720]) and reference to the following cases regarding the application of the direction:
    • MK v R [2023] NSWCCA 180 at [5-720]
    • DPP (NSW) v Presnell [2022] NSWCCA 146 at [5-730].

Sexual touching

  • [5-1110]ff to update language in suggested directions regarding the offence of sexual touching.

New chapter: Sexual act

  • A new chapter at [5-1200]ff provides commentary on the separate offences of “sexual act” in ss 61KE and 61KF of the Crimes Act 1900 for adults, and ss 66DC, 66DD, 66DE and 66DF for children.

Self defence

  • [6-455] Essential components of self-defence direction to amend commentary regarding the essential components of a self-defence direction in cases other than murder.

Summing-up format

  • [7-040] Notes to amend commentary regarding the suggested direction at [7-030] and the provision in s 161 of the Criminal Procedure Act 1986 that the judge need not summarise the evidence if of the opinion that, in all of the circumstances of the trial, a summary is not necessary.

Prospect of disagreement

  • The chapter at [8-050]ff regarding disagreement of jury over verdict has been extensively revised and updated.