Criminal Trial Courts Bench Book April 2025 update

Update 80 amends the Criminal Trial Courts Bench Book to incorporate recent case law and legislation. The following chapters have been revised:

Outline of trial procedure

• [1-005] Pre-trial procedures to add reference to Supreme Court Practice Note SC GEN 23 and Judicial Guidelines and District Court General Practice Note 2, regarding the use of generative artificial intelligence in the preparation and conduct of trials.

Evidence given by alternative means

• The chapter at [1-360]ff has been substantially rewritten to update commentary and suggested directions regarding the alternative measures categories of witnesses in various types of proceedings may employ to give their evidence, in addition to those measures ordinarily employed in the court room.

Jury

• [1-440] Number of jurors to add further commentary regarding the empanelment of additional jurors in certain circumstances.
• [1-495] Offences and irregularities involving jurors to add commentary regarding investigation by the sheriff of jury irregularities (s 73A Jury Act 1977).

Self-represented accused

• [1-840] Cross-examination of complainants in prescribed sexual offence proceedings and vulnerable witnesses in criminal proceedings to add commentary regarding Commonwealth proceedings and restrictions with respect to the cross-examination of certain witnesses by a self-represented accused.
• [1-845] Suggested procedure: ss 294CB, 294A to add commentary regarding Commonwealth proceedings and restrictions on unrepresented accused persons cross-examining complainants in prescribed sexual offence proceedings about sexual reputation and experience.

Tendency, coincidence and background evidence

• The chapter at [4-202]–[4-220] regarding tendency evidence has been substantially revised. Reference has been added to DPP v Roder (a pseudonym) [2024] HCA 15, Davidson (a pseudonym) v R [2024] NSWCCA 60, Astill v R [2024] NSWCCA 118 and R (Cth) v Seguel [2024] NSWCCA 37, and the suggested tendency directions regarding single and multiple complainant proceedings have been re-written.

Unfavourable witnesses

• The chapter at [4-250]ff has been substantially revised to update commentary and suggested directions.

Cross-examination concerning prior sexual history of complainants

• [5-100] Introduction and [5-110] The exclusions in s 294CB(4) to add reference to WHS v R [2024] NSWCCA 242 regarding admissibility of evidence relating to sexual experience, and the difference between “sexual experience” and “sexual activity”; and to add commentary regarding amendments to the Crimes Act 1914 (Cth) to restrict cross-examination regarding sexual reputation or experience of complainants in prescribed Commonwealth sexual offence proceedings.

Pre-recorded evidence in child sexual offence proceedings — Child Sexual Offence Evidence Program (CSOEP)

• The chapter at [5-400]ff has been revised to update commentary following the commencement on 31 March 2025 of District Court Criminal Practice Note 31 (replacing Criminal Practice Note 28) for proceedings falling within Div 1A of Pt 5 Criminal Procedure Act 1986.

Supply of prohibited drugs

• The chapter at [5-6700]ff has been substantially revised to include reference to Salameh v R [2024] NSWCCA 239, a five-judge bench decision, regarding the mental element of the offence of supply of prohibited drugs under s 25(2) Drug Misuse and Trafficking Act 1985.
• A new section, [5-6755] Knowingly take part in supply prohibited drug, has been added, including a suggested direction at [5-6757].

Alibi

• [6-010] Notes have been amended to add reference to MKR v R [2025] NSWCCA 1 regarding the jury direction for alibi evidence.