Criminal Trial Courts Bench Book Update 73 published

Update 73, June 2023

Update 73 amends the Criminal Trial Courts Bench Book to incorporate recent case law and legislative developments. The following chapters have been revised:

Acquittal — directed

  • [2-050] Introduction to add reference to the ballot procedure in accordance with s 55G Jury Act 1977 where a directed acquittal is being ordered in relation to only some accused persons or counts and the jury consists of more than 12 jurors.

Complicity

  • [2-770] Notes to add reference to Mitchell v The King [2023] HCA 5 where it was held that combining the doctrine of extended joint criminal enterprise with the South Australian statutory provision of constructive murder (drafted in similar terms to s 18 Crimes Act 1900 (NSW)) was impermissible as it amounted to creating a new doctrine of “constructive, constructive murder”, where no such doctrine has ever existed.

Expert evidence

  • [2-1140] Notes to add reference to Al-Salmani v R [2023] NSWCCA 83 which confirms that it will be a rare case where responsive answers by an expert to a cross-examiner’s questions would be objectionable, and Dirani v R [2021] NSWCCA 202 regarding the inadmissibility of police expert opinion evidence where such evidence was mere speculation and not based on any identified expertise.

Complaint evidence

  • [5-030] Evidence of complaint where witness not available under s 65(2) to add reference to RC v R [2022] NSWCCA 281 regarding what constitutes the requirement of “all reasonable steps” being taken to compel a person to give evidence in the Dictionary definition of “unavailability of persons” for the purpose of s 65(1) Evidence Act 1995.

Expert evidence — specialised knowledge of child behaviour

  • [5-310] Notes to add reference to BQ v R [2023] NSWCCA 34 regarding the admissibility of expert evidence where it addresses the relationship between a child and a perpetrator and its effect on the child’s behaviour, and circumstances governing jury directions about how such evidence is not relevant to a particular complainant’s credibility.

Break, enter and commit serious indictable offence

  • [5-5100] Suggested direction to amend the suggested direction, which has been designed to fit the most common offence of break, enter and steal, to incorporate the ruling in BA v The King [2023] HCA 14 that a person with lawful authority to enter premises will not be guilty of “breaking and entering” under s 112 Crimes Act, even if force is used to gain entry.
  • [5-5110] Notes to add reference to BA v The King, Ghamrawi v R (2017) 95 NSWLR 405 and Singh v R [2019] NSWCCA 110 regarding the concept of “breaking” and “constructive breaking” at common law; and Nassr v R [2015] NSWCCA 284 regarding the definitions of “serious indictable offence” and “dwelling-house”.

Duress

  • [6-170] Notes to add reference to Rowan (a pseudonym) v R [2022] VSCA 236 where it was held that a continuing or ever present threat subsisting at the time of the offence was sufficient to engage the defence of duress.

Necessity

  • [6-350] Introduction to add reference to Veira v Cook [2021] NSWCA 302 regarding factors to be taken into account in determining whether the defence of necessity is established.

Summing up format

  • [7-000] Suggested outline of summing up to add reference to Cook (a pseudonym) v R [2022] NSWCCA 282 regarding the requirement of the trial judge to give oral directions where written directions are provided.