Criminal Trial Courts Bench Book April 2026 update

Update 84 amends the Criminal Trial Courts Bench Book to incorporate recent case law. The following chapters have been revised:

Judge alone trials

• [1-060] Section 133 — Verdict of a single judge has been updated to add reference to Schoffel v R [2023] NSWCCA 88 regarding the requirement for judgments to set out the essential legal elements of each offence, even if they are not in dispute.

Complicity

• [2-740] Joint criminal liability has been updated to add reference to Hawell v R [2025] NSWCCA 210 regarding the necessity of the actus reus of the offence being the subject of the agreement in a joint criminal enterprise.
• [2-750] Suggested direction — (a) joint criminal enterprise, [2-760] Suggested direction — (b) and (c) extended joint criminal enterprise and the corresponding Notes at [2-755] and [2-765] have been updated.
• A new paragraph at [2-800] provides commentary on the application of joint criminal enterprise to sexual assault, including a discussion of the reasoning in Hawell v R. A suggested direction — joint criminal enterprise and sexual assault in company has been added at [2-820].

Expert evidence

• The chapter at [2-1100]ff has been revised and updated to provide additional commentary and cases, including BQ v The King [2024] HCA 29 regarding the exception to the credibility rule in s 108C Evidence Act 1995 (at [2-1100]), and JS v DPP (NSW) [2026] NSWCA 58 regarding the admissibility of a certificate of expert opinion as an exception to the s 76 Evidence Act opinion rule (at [2-1140]).

Identification evidence — visual forms

• The chapter has been updated to include reference to Hawell v R on the warning to be given in relation to “identification evidence” under s 165(1)(b) Evidence Act (at [3-000] Introduction), and regarding the content of an identification direction required under s 116 Evidence Act (at [3-045] Content of identification direction).

Multiple counts — R v Markuleski

• [3-400] Suggested R v Markuleski (2001) 52 NSWLR 82 direction — multiple counts has been updated to include additional commentary and reference to PM v R [2025] NSWCCA 139 and Cook (a pseudonym) v R [2022] NSWCCA 282 regarding providing jury directions on returning verdicts on various counts.

Tendency, coincidence and background evidence

• The commentary has been amended to add references to The King v AR [2026] HCA 10 to Tendency evidence, [4-202] Introduction, [4-206] Significant probative value, and [4-214] Standard of proof. The suggested tendency evidence directions at [4-218] and [4-220] have been slightly amended to accord with the plurality in The King v AR.
• In Backround evidence, [4-240] Introduction has been updated to add reference to Hawell v R and Elomar v R [2014] NSWCCA 303 regarding the admissibility of evidence of conduct that forms part of a relevant transaction or state of mind.

Witness reasonably supposed to have been criminally concerned in the events

• The chapter at [4-380]ff has been revised and updated to provide additional commentary and cases, including R v Saltan [2002] NSWCCA 423 regarding the use of the word “accomplice” in directions given by a trial judge (at [4-380]), and Hawell v R regarding circumstances where there will be “good reasons” not to give a warning under s 165(3) Evidence Act 1995 (at [4-395]).

Complaint evidence

• [5-000] Introduction has been updated to add reference to The King v Tsalkos [2025] HCA 49 regarding the admissibility of evidence of distress at the time of complaint.

Sexual intercourse without consent

• The chapters at [5-800]ff (dealing with sexual intercourse without consent until 31 May 2022) and at [5-900]ff (dealing with sexual intercourse without consent from 1 June 2022) have been revised to update commentary and the suggested directions, and include reference to Poveda v R [2025] NSWCCA 174 regarding directions as to the element of knowledge and self-induced intoxication of the accused, and Hawell v R regarding recklessness as to the absence of consent in the context of a joint criminal enterprise.

Sexual touching/act

• The chapters at [5-1100]ff (dealing with sexual touching) and at [5-1200]ff (dealing with sexual act) have been revised to update commentary and the suggested directions, and include reference to Poveda v R regarding directions as to the element of knowledge and self-induced intoxication of the accused.

Dangerous driving

• The chapter at [5-5400]ff has been revised and updated.

Larceny

• The chapter at [5-6100]ff has been revised and updated.

Robbery

• The chapter at [5-6600]ff has been substantially rewritten to update commentary and the suggested directions on the offences of robbery, assault with intent to rob and steal from the person under s 94 Crimes Act 1900.

Supply of prohibited drugs

• The chapter at [5-6700]ff has been substantially revised and updated to provide additional commentary and cases, including English v R [2025] NSWCCA 184 on the concept of possession, and Barber v R [2025] NSWCCA 179 regarding the operation of the “deeming provision” in s 29(a) Drug Misuse and Trafficking Act 1985.