Criminal Trial Courts Bench Book December 2025 update

Update 83 amends the Criminal Trial Courts Bench Book to incorporate recent legislation and case law. The following chapters have been revised:

Jury

• The chapter at [1-435]ff has been substantially revised and updated to provide additional commentary and cases, including D’Agostino v R [2025] NSWCCA 159 regarding communications between jurors and sheriff’s officers (at [1-502]), and Decision Restricted [2025] NSWCCA 131 regarding the discretion to discharge the whole jury or continue with remaining jurors after the death or discharge of a juror (at [1-510]) and the provision of transcripts (at [1-525]).

Consciousness of guilt, lies and flight

• [2-955] Lies to add cross references to [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 and [3-600] Onus and standard of proof.

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 Evans v R [2024] NSWCCA 245 regarding the distinction between the Liberato direction and the direction as to the onus of proof, and Barwick v R [2023] NSWCCA 139 regarding application of the second limb of the Liberato direction.

Cross-examination concerning prior sexual history of complainants

• [5-100] Introduction to add reference to Smith (a pseudonym) v R [2025] NSWCCA 145 regarding what evidence is admissible under s 294CB Criminal Procedure Act 1986 relating to sexual experience.

Sexual act

• The chapter has been revised and new suggested directions provided at [5-1265] Suggested direction — sexual act in presence of child under 10 (s 66DC(a1)) and [5-1285] Suggested direction — sexual act in presence of a child which is filmed (s 66DF(a1)) to incorporate amendments made by the Crimes Amendment (Sexual Offences and Female Genital Mutilation) Act 2025, which commenced on assent on 17 September 2025.

Blackmail

• A new chapter at [5-5650]ff provides updated suggested directions and commentary on the offence of blackmail under s 249K Crimes Act 1900 (formerly found at [5-5600]ff Extortion by threat — blackmail, now named Demand property with intent to steal).

Fraud — Part 4AA Crimes Act 1900

• The chapter at [5-5900]ff has been substantially revised and updated to provide additional commentary and cases, including Dimitriou v R [2025] NSWCCA 18 on the elements of fraud offences.

Summing up format

• [7-000] Suggested outline of summing-up to add reference to White v R [2025] NSWCCA 141 which applied Odisho v R [2018] NSWCCA 19 regarding the principles governing the obligations of a trial judge when summing up.
• [7-040] Notes to add reference to Odisho v R regarding the elements of a summing up.