Criminal Trial Courts Bench Book October 2025

Update 82 amends the Criminal Trial Courts Bench Book to incorporate recent case law. The following chapters have been revised:

Outline of trial procedure

• [1-005] Pre-trial procedures to revise the commentary in relation to amending or substituting the indictment under s 21 Criminal Procedure Act 1986, and to include references to Bigatton v R [2024] NSWCCA 23 and Burton v R [2025] NSWCCA 89. Examples of cases of mere defects in an indictment which may be amended under s 21 have also been added.
• [1-010] The trial process to add reference to Decision Restricted [2025] NSWCCA 61 regarding re-arraignment of the accused before the jury for offences on indictment to which they pleaded not guilty where they had been arraigned pre-trial under s 130(2) Criminal Procedure Act.

Jury

• [1-495] Offences and irregularities involving jurors to add reference to Menon v R [2025] NSWCCA 56 regarding investigation by the sheriff of jury irregularities under s 73A Jury Act 1977.

Circumstantial evidence

• [2-500] Introduction to add reference to Crane v R [2025] NSWCCA 93 and the authorities referred to in that judgment regarding conjecture and inferences drawn from evidence.

Inferences

This chapter has been substantially revised, including:

• [3-150] Suggested direction to update the suggested direction in relation to inferences contended for by the Crown.
• [3-160] Notes to add caselaw governing the drawing of inferences in a criminal trial.

Tendency, coincidence and background evidence

• [4-204] Notice to add reference to Wright v R [2025] NSWCCA 108 regarding matters relevant to the evaluation of whether or not the notice given, as required by ss 97 and 98 Evidence Act 1995, is reasonable.
• [4-216] Suggested tendency evidence direction — single complainant — applies to charged acts, other acts or combinations thereof to update the suggested direction.
• [4-222]ff to revise the commentary and suggested directions regarding coincidence evidence, context evidence and background evidence.

Procedures for fitness to be tried (including special hearings)

• [4-320] Part 4 procedure to make a slight amendment to the Note at Step 5A and to Note 2 at Step 5B.

Sexual intercourse without consent — until 31 May 2022

• [5-830] Notes to add reference to Kumar v R [2025] NSWCCA 119 regarding jury directions on the third element of the offence (the accused’s state of mind) for sexual intercourse without consent (s 61I) where the alleged offence is committed on or after 1 January 2008 and before 1 June 2022.

Demand property with intent to steal

• The chapter at [5-5600]ff (formerly Extortion by threat — blackmail) has been substantially rewritten to update commentary and the suggested direction regarding demanding property with menaces or by force with intent to steal under s 99 Crimes Act 1900.

Defence of mental health impairment or cognitive impairment

• [6-230] The impairment defence to add reference to Delaney v R [2025] NSWCCA 76, R v Patterson (No 6) [2024] NSWSC 458 and R v Miller [2022] NSWSC 802 regarding the test for meeting the definition of mental health impairment in s 4 Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
• [6-280] Suggested direction to update the suggested direction regarding the impairment defence.