Update 74, September 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
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.
- [1-118] Unsworn evidence — conditions of competence to add reference to SC v R  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.
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.
- [2-710] Suggested direction — accessory before the fact to add reference to Jaghbir v R  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  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  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
Maintain unlawful sexual relationship with a child
- [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.
- [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.
Prospect of disagreement
- The chapter at [8-050]ff regarding disagreement of jury over verdict has been extensively revised and updated.