Criminal Trial Courts Bench Book July 2025 update

Update 81 amends the Criminal Trial Courts Bench Book to incorporate recent case law. The following chapters have been revised:

Evidence given by alternative means

• [1-385] Suggested direction — use of CCTV or other alternative arrangements to add reference to R v Walker [2025] NSWCCA 62 regarding the jury directions required under s 294B(7) Criminal Procedure Act 1986 in prescribed sexual offence proceedings where a complainant’s evidence is given by CCTV or other means.

Complicity

• [2-740] Joint criminal liability to add reference to AW v R [2025] NSWCCA 47 and that a party to a joint criminal enterprise under the doctrine of extended joint criminal enterprise where the party foresees, but does not agree to, the commission of an incidental crime in the course of carrying out the agreement to commit the foundational offence.

Witnesses — not called

• [4-370] Introduction to add reference to Singh v R [2025] NSWCCA 34 and the circumstances that may be relevant in deciding whether or not to give a Mahmood v Western Australia (2008) 232 CLR 397 direction following failure of the prosecution to call a witness expected to be called.

Complaint evidence

• [5-000] Introduction to add reference to The King v Ryan Churchill (a pseudonym) [2025] HCA 11, Davis v R [2024] NSWCCA 120 and AS v R [2022] NSWCCA 291 regarding jury directions in relation to evidence of a complainant’s distress at the time of making the complaint.

Sexual assault communications privilege

• [5-500] Introduction to add reference to the Judicial Officers’ Bulletin article by R Gilbert, “Sexual assault communications privilege — an update” (2025) 37(1) JOB 1.
• [5-510] What communications are protected? to add reference to Decision Restricted [2025] NSWCCA 55 and the meaning of “protected confidence” in s 296(1) Criminal Procedure Act.
• [5-520] Applications for leave to add reference to Decision Restricted [2025] NSWCCA 55 and JK v R [2025] NSWCCA 44 regarding a judge’s discretion to examine protected confidence documents under s 299B(1) of the Criminal Procedure Act when determining whether the s 299D requirements for leave are met.

Indecent assault

• [5-640] Notes — aggravated indecent assault under s 61M to add reference to Hu v R [2025] NSWCCA 66, Manojlovic v R [2020] NSWCCA 315 and Kennedy v R [2017] NSWCCA 193 confirming that the definition of “under the authority of” another person in s 61H(2) Crimes Act 1900, as “in the care” or “under supervision” or “under authority” of another person, operates as three separate elements. Also, to clarify a patient receiving treatment from a health care professional is “in the care of”, and thus “under the authority of”, the health care professional.

Sexual intercourse without consent — until 31 May 2022

• [5-850] Notes to add a cross-reference to Indecent assault at [5-640] regarding what constitutes the aggravating circumstance of being under authority.

Sexual intercourse without consent — from 1 June 2022

• [5-910] Suggested direction — basic offence — sexual intercourse without consent (s 61I) — offences from 1 June 2022 and [5-915] Suggested direction — accused’s cognitive or mental health impairment a substantial cause for not ascertaining consent (s 61HK(3)–(4)) to update the jury directions.

Sexual touching

• [5-1140] Notes — aggravated sexual touching — under s 61KD to add reference to Hu v R and Kennedy v R regarding whether the alleged victim is under the authority of the accused, and to update the jury directions at [5-1115] Suggested direction — basic offence (s 61KC) — from 1 June 2022 and [5-1130] Suggested direction — aggravated offence (s 61KD).

Sexual Act

• [5-1250] Notes — aggravated sexual act — under s 61KF to add reference to Hu v R and Kennedy v R regarding whether the alleged victim is under the authority of the accused, and to update the jury directions at [5-1220] Suggested direction — basic offence (s 61KE) — from 1 June 2022 and [5-1240] Suggested direction — aggravated offence (s 61KF).