Currency

Update 57, October 2017

[1-360] Evidence given by alternative means In [1-372] Giving evidence of out-of-court representations, the section titled Vulnerable persons was revised to include reference to Tikomaimaleya v R [2017] NSWCCA 214. References to the Criminal Procedure Regulation have been updated to reflect the remade regulation which commenced on 1 September 2017. A new paragraph titled Competence and recorded interviews has been added which addresses a trial judge’s obligations with respect to s 13(1) Evidence Act 1995 when the question of the capacity of a vulnerable person at the time of an interview is raised at trial.

[1-600] Oaths and affirmations In [1-600] General oaths and affirmations, the reference to the Criminal Procedure Regulation has been updated to reflect the remade regulation which commenced on 1 September 2017.

[2-700] Complicity In [2-740] Joint criminal liability, the text has been revised to include a discussion of the disagreement expressed by some Justices of the High Court in IL v The Queen [2017] HCA 27 as to what the court previously held in Osland v The Queen (1998) 197 CLR 316. A reference to McAuliffe v The Queen (1995) 183 CLR 108 at 114–115 has been added to [2-760] Suggested direction — (b) and (c) extended common purpose. The notes at [2-770] Suggested direction — application of joint criminal enterprise to constructive murder include reference to comments passed by some of the Justices in IL v The Queen about R v Sharah (1992) 30 NSWLR 292 and constructive murder.

[2-1100] Expert evidence The text in [2-1100] Introduction was revised to include references to Honeysett v The Queen (2014) 253 CLR 122, Taub v R [2017] NSWCCA 198 and Clegg v R [2017] NSWCCA 125.

[4-200] Tendency, coincidence and background evidence Those sections of the direction at [4-227] Suggested direction — tendency evidence addressing what the jury should consider when they have accepted an accused had a tendency to act in a particular way or have a particular state of mind and the caution needed when the jury considers certain tendency evidence which is potentially distasteful have been revised.

[5-1100] Murder In [5-1100] Introduction, IL v The Queen [2017] HCA 27 has been added. Section 18 Crimes Act 1900 does not apply when a person kills themselves during or immediately after a crime has been committed or by attributing to another an act which caused a self-killing. Reference to IL v The Queen has been added to [5-1120] Constructive (felony) murder and [5-1130] Suggested direction — constructive murder.

Update 56, August 2017

The Index and Statutes entries have been updated. Also, in this update, the Procedure for fitness to be tried and mental illness cases have been moved from the back of the bench book in the Miscellaneous chapter to [4-325]ff. The following chapters have been affected:

  • Special hearings at [4-150]ff

  • Unfitness at [4-300]ff

  • Views and demonstrations at [4-335]ff

  • Voluntary act of the accused at [4-350]ff

  • Witnesses — not called at [4-370]ff

  • Witness reasonably supposed to have been criminally concerned in the events at [4-380]ff

  • Remote witness facilities operational guidelines at [10-670]ff.

Update 55, July 2017

[1-000] Outline of trial procedure The suggestion at [1-015] The course of the evidence has been revised in light of Tootle v R [2017] NSWCCA 103 to make clear the prohibition of the jury asking questions of witnesses.

[1-100] Child witness/accused The text at [1-135] Warnings about children’s evidence has been revised to include AL v R [2017] NSWCCA 34 at [76]–[77]. A direction cautioning the jury about the possible unreliability of the evidence of a child complainant in a sexual assault case can only focus on matters relevant to the particular child in the particular circumstances of the case and not concern inherent features of children generally.

[1-440] Jury A new paragraph [1-492] Jury questions for witnesses has been inserted. It is impermissible to allow the jury to ask questions of witnesses either directly or indirectly: Tootle v R [2017] NSWCCA 103 at [63]. In the case of complex expert evidence, the jury can be given the opportunity to raise any matter they would like to be further explained or clarified.

[2-550] Complaint evidence The text at [2-640] Delay in complaint and forensic disadvantage to the accused was amended to include TO v R [2017] NSWCCA 12. The court, at [167]ff, provided “a summary of the effect of s 165B [Evidence Act 1995]” with reference to several cases. Section 165B addresses the circumstances where a direction can be given regarding any forensic disadvantage to the accused.

[2-700] Complicity At [2-740] Joint criminal liability, Dickson v R [2017] NSWCCA 78 at [47] has been added. An offender can be liable upon the basis of joint enterprise if he or she participated in some way other than at the commission of the crime. R v IL [2016] NSWCCA 51 at [38] has been added as an example of an application of extended joint criminal enterprise. In the Notes to [2-780] Suggested direction — withdrawal from the joint criminal enterprise, Tierney v R [2016] NSWCCA 144 at [19] has been added in relation to withdrawal of an accused from the joint criminal enterprise.

[4-200] Tendency, coincidence and background evidence The text at [4-225] Tendency evidence has been substantially revised to incorporate the decisions of IMM v The Queen (2016) 257 CLR 300 and Hughes v The Queen [2017] HCA 20. The new text sets out the matters that must be considered when a court is determining whether tendency should be admitted. Admissibility under s 97(1)(b) Evidence Act 1995 of tendency evidence is not conditioned on similarity between the tendency evidence and criminal acts alleged: Hughes v The Queen at [39].

At [4-235] Coincidence evidence, the text was revised to include Ceissman v R [2015] NSWCCA 74 and Selby v R [2017] NSWCCA 40. The latter case held that asserted dissimilarities did not reduce the probative value of coincidence evidence. The question is whether the dissimilarities detract from the strength of an inferential mode of reasoning permitted by s 98 Evidence Act that the two events were not a coincidence.

Update 54, March 2017

[1-349] Closed court, suppression and non-publication orders In [1-358] Closed courts, a note has been inserted that incorporates the amendments to the Criminal Procedure Act 1986 by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016. Amendments to s 291 clarify that when a sexual assault complainant’s evidence is being given, regardless of whether this is in person, via video link or recording, proceedings will be held in a closed court unless otherwise ordered.

[1-440] Jury In [1-505] Discharging individual jurors, the discussion now incorporates the cases for the misconduct of jurors under s 53A Jury Act 1977 of R v Rogerson (No 27) [2016] NSWSC 152 and Carr v R [2015] NSWCCA 186. The discussion of discretionary discharge of a juror under s 53B Jury Act includes R v Lamb [2016] NSWCCA 135 and R v Qaumi (No 41) [2016] NSWSC 857.

[1-900] Witnesses — cultural and linguistic factors The text at [1-910] Directions cultural and linguistic factors includes statements of the High Court in Castle v The Queen (2016) 91 ALJR 93 at [61]. A trial judge may comment on the evidence provided he or she make clear that it is entirely within the jury’s province to determine the facts. However, it is often wise not to comment unless there is a need.

[5-1800] Supply of prohibited drugs In [5-1800] Introduction, text and a flow chart regarding drug exhibits have been added explaining the new procedures following the enactment of the Drug Misuse and Trafficking Amendment (Drug Exhibits) Act 2016.

Update 53, September 2016

[2-500] Circumstantial evidence Paragraph [2-500] Introduction has been re-written to incorporate various statements of the High Court about circumstantial cases in The Queen v Baden-Clay [2016] HCA 35 at [46]–[62].

[2-550] Complaint evidence The commentary at [2-590] Evidence of complaint where witness not available under s 65(2) has been amended to include Sio v The Queen [2016] HCA 32. Section 65(2) Evidence Act 1995 is premised upon an assumption that a party is seeking to prove a specific fact. It requires the identification of the particular representation to be adduced to prove that fact. It is then that the circumstances of the representation are considered in order to determine whether the conditions of admissibility have been met under s 65(2).

[2-700] Complicity A reference to Miller v The Queen [2016] HCA 30 has been added at [2-740] Joint criminal liability. McAuliffe v The Queen (1995) 183 CLR 108 should not be overruled or confined following R v Jogee; Ruddock v The Queen (Jamaica) [2016] 2 WLR 681. Reform in the area of joint criminal enterprise is a matter for Parliament.

[2-950] Consciousness of guilt, lies and flight The decision of The Queen v Baden-Clay [2016] HCA 35 has been added at [2-953] Alternative charges and included offences. It will be for the jury to decide whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter. References to the decision of Steer v R (2008) 191 A Crim R 435 have been removed so far as that case is inconsistent with The Queen v Baden-Clay.

[3-600] Onus and standard of proof Paragraph [3-603] Notes has been amended to include further commentary on Decision Restricted [2016] NSWCCA 63 and Moore v R [2016] NSWCCA 185. Phrasing a question in a question trail “is there a reasonable possibility” that an applicant held the necessary belief for self-defence did not reverse the onus of proof. Proof of a matter beyond reasonable doubt involves rejecting any reasonable possibility inconsistent with the Crown case. The question of reasonable possibility is definitive and does not give rise to an answer other than “yes” or “no” — there is no “middle ground” answer of “not sure”.

[5-2000] Kidnapping — take/detain for advantage/ransom/serious indictable offence The paragraph [5-2000] Introduction and the suggested direction for the basic offence (s 86(1)) at [5-2010] have been amended to include the decision of Castle v R [2016] NSWCCA 148. Knowledge of lack of consent is an element of an offence under s 86 Crimes Act 1900. It can be satisfied by proving that the accused was reckless as to whether the complainant consented. Recklessness as to lack of consent can be established in a manner similar to that explained in Banditt v The Queen (2005) 224 CLR 262 at [38]. Knowledge of lack of consent cannot be demonstrated by proving the accused did not turn his or her mind to the question in circumstances where lack of consent would be obvious if the accused had considered it: R v Tolmie (1995) 37 NSWLR 660 distinguished. The objective approach to recklessness in R v Tolmie is not sufficient to establish knowledge of lack of consent for the purpose of a s 86 offence: Castle v The Queen (2016) 91 ALJR 93 at [47].

[6-400] Provocation/extreme provocation A new [6-442] Suggested direction — extreme provocation — murder allegedly committed on or after 13 June 2014 has been added. A new [6-444Notes — extreme provocation has been added to include the dictum in R v Turnbull (No 25) [2016] NSWSC 831 that the removal of the words “in the position of the accused”, as part of the 2014 amendments to s 23 Crimes Act 1900, operates to narrow significantly the “ordinary person” test for the purpose of extreme provocation and an accused’s age (in the sense of immaturity) appears to remain part of the ordinary person test.

[6-450] Self-defence The commentary at [6-450] Introduction has been revised. Two new paragraphs [6-452Raising/leaving self-defence and [6-455Essential components of self-defence direction have been added. The suggested directions at [6-460] and [6-465] have been substantially revised. The text about suggested directions where intoxication is raised at [6-470] and the suggested directions at [6-480] and [6-490] have been amended.

Update 52, July 2016

[1-250] Contempt, etc

A reference to Prothonotary of the Supreme Court of NSW v Dangerfield [2015] NSWSC 1895 has been added at [1-260]. In that case, a referral by the magistrate under Pt 55 r 11(3)(c) of the Supreme Court Rules 1970 was void for want of jurisdiction on the basis that the alleged contemnor was not afforded procedural fairness. The chapter was also updated.

Disrespectful conduct

New paragraphs have been added at [1-320] and [1-325] to describe the new offence of disrespectful conduct and the procedure to deal with the offence. The Act which created the offence is yet to commence.

[1-340] Cross-examination — improper; of defendant

A reference to Tieu v R [2016] NSWCCA 111 has been added at [1-347]. Where leave is required by the Crown to cross-examine the accused under s 104(2) Evidence Act 1995, it is essential that the court give proper attention to the requirements of s 104 and make a specific determination as to leave. The court should ask the prosecution to address the application of ss 104(4), 103 and 192.

[1-440] Jury

The cases of Barber v R [2016] NSWCCA 125 and R v Lamb [2016] NSWCCA 135 have been added at [1-520]. The court endorsed the practice in both cases of refraining from making a formal order discharging the whole jury until the parties have considered whether to appeal against the decision under s 5G(1) Criminal Appeal Act 1912. In some cases, it may be necessary to discharge the jury immediately but those cases will be rare.

[4-335] Views and demonstrations

A reference to the Victorian Court of Appeal case of Ha v R (2014) 44 VR 319 at [31]–[34] and R v Rogerson (No 10) [2015] NSWSC 1067 has been added at [4-340]. Ha v R set out guidelines for conducting a view with reference to the Judicial Commission of NSW Criminal Trial Courts Bench Book. The guidelines were adopted and applied in R v Rogerson.

[4-380] Witness reasonably supposed to have been criminally concerned in the events

Reference has been made to Decision Restricted [2016] NSWCCA 44 at [73]. It is erroneous to give a warning under s 165(1)(d) Evidence Act 1995 where the evidence of a witness criminally concerned in events is not relied upon by the Crown against an accused. A note has been added to the effect that there is no requirement to use the precise expression in s 165(1)(d) “a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”. The directions at [4-385] has been substantially revised. An alternative formulation that is more readily understandable by jurors has been inserted.

[5-250] Dangerous driving

The decision of Williams v R [2012] NSWCCA 286 at [60] has been added at [5-255] to explain what constitutes driving for the purposes of the offence.

[5-1550] Sexual intercourse without consent

A note has been added at [5-1568] which explains Decision Restricted [2016] NSWCCA 52 at [155]. The case concerned appropriate directions for s 61HA(3)(c) Crimes Act 1900 where the Crown seeks to prove beyond reasonable doubt that there were “no reasonable grounds” for the accused to believe that the complainant consented. It is erroneous to instruct the jury or imply that the jury should ask what a reasonable person might have concluded about consent. The correct test is what the accused might have believed in all the circumstances. The accused’s belief is then tested by asking whether there might have been reasonable grounds for it. The direction at [5-1566] has been revised.

Update 51, May 2016

[3-600] Onus and standard of proof

Update 51 takes account of Decision Restricted [2016] NSWCCA 63 (accessible through the Restricted Judgments link on the Court of Criminal Appeal Judgments page in JIRS). The case concerned jury directions in relation to the onus and standard of proof: see Special Bulletin 32.

The direction at [3-600] Suggested direction — where the defence has no onus has been amended to make clear that the expression “reasonable possibility” can be used where the Crown must negative a defence/issue to the criminal standard.

The reference in the last paragraph of [3-600] to “a reasonable possibility” has been amended so that it reads “the Crown has failed to eliminate a reasonable possibility”.

A new Note 3 has been added after the direction at [3-603]:

If a judge gives the jury written directions it is essential that the directions make clear where the legal onus is on the Crown: Decision Restricted [2016] NSWCCA 63 at [106], [112].

Update 50, April 2016

[1-100] — Child/witness accused

The High Court decision of The Queen v GW (2016) 90 ALJR 407 has been added at:

  • [1-110] Competence of children and other witnesses

  • [1-115] Sworn evidence

  • [1-120] Jury directions — unsworn evidence.

Where a witness is a young child it is not necessary direct a jury as to the differences between sworn and unsworn evidence. The fact that the child in The Queen v GW did not take an oath or make an affirmation (and was not exposed to the consequences of adhering to either) was held to be not material to the assessment of whether the evidence is truthful or unreliable.

[1-440] — Jury

The case of Hughes v R [2015] NSWCCA 330 was added at [1-450] Adverse publicity in the media and on the internet.

[1-600] — Oaths and affirmations

The oath/affirmation to be taken by children’s champions was added.

[8-050]Prospect of disagreement

The case of Isika v R [2015] NSWCCA 304 has been added at [8-050] Introduction. In response to a question from the jury about what would happen if the jury members disagreed, a judge’s direction referred to the time and cost of trials. It was held that this direction contravened Black v The Queen (1993) 179 CLR 44.

[10-500]ff — Miscellaneous — District Court Criminal Practice Notes

District Court Criminal Practice Note 11, which deals with the child sexual offence evidence pilot, has been added at [10-525].

Update 49A, February 2016

[4-200] Tendency, coincidence and background evidence The text at [4-225] Tendency evidence has been revised to incorporate the decision of Hughes v R [2015] NSWCCA 330. The decision sets out the approach a court should take in determining whether tendency evidence should be admitted (contrasted with the Victorian position) including the scenario where an allegation of concoction is raised.

Update 49, November 2015

[1-900] Witnesses — cultural and linguistic factors In some cases, it may be necessary to give specific directions to the jury concerning a witness’ cultural and linguistic background. A new section, comprising [1-900][1-910], addresses the issue with reference to case law and reports on the subject.

[3-250]Intoxication A reference to Harkins v R [2015] NSWCCA 263 has been added at [3-250] to explain that although intoxication generally is relevant to whether the accused had the necessary specific intention at the time when the act was committed giving rise to the offence, it does not extend to the basic or general element to commit the act.

Update 48, September 2015

[1-440] — Jury The case of Carr v R [2015] NSWCCA 186 has been added at [1-495] Offences and irregularities involving jurors specifically in relation to inquiries by jurors to obtain information prohibited under s 68C Jury Act 1977.

[5-100] — Break, enter and steal The text at [5-110] Notes has been amended to include DPP (NSW) v Trudgett (2013) 238 A Crim R 1 at [15]. Breaking can include opening a closed but unlocked door.

[5-1550]Sexual intercourse without consent The case of BA v R [2015] NSWCCA 189 has been added to the discussion of the definition of sexual intercourse at [5-1568] Notes particularly what conduct constitutes cunnilingus for the purposes of s 61H(1) Crimes Act 1900.

[7-000] — Summing-up format The text at [7-030] Suggested direction — final directions has been amended to inform the jury that its deliberations and voting patterns should not be included in their notes for assistance (to the judge). The High Court held in Smith v The Queen (2015) 89 ALJR 698; [2015] HCA 27 at [32] that it would be a sensible measure for a judge to inform the jury, before retirement, that their votes or voting patterns should not be disclosed in order to minimise such a disclosure occurring before the verdict(s).

The suggested direction has also been amended to allow the judge to ask counsel in the presence of the jury if there are any final matters before the jury retires. This provides flexibility for the judge to deal with uncontroversial matters.

[8-050] — Prospect of disagreement The text at [8-100] Notes has been amended to include Smith v The Queen (2015) 89 ALJR 698; [2015] HCA 27 at [48]–[49] particularly as it relates to majority verdict directions. Disclosure of voting numbers is not necessary to enable the jury to perform its role in reaching a verdict(s) or for the judge to form a view on whether to ask the jury to consider a majority verdict(s).

[10-700] — Procedure for fitness to be tried and mental illness cases The text following the Table at [10-715] Part 2 MHFP Act procedure has been changed to make clear that the glossary/abbreviations pertain to the text in the Table.

Update 47, June 2015

[1-360]Evidence given by alternative means The Table at [1-360], the text at [1-372] and the suggested direction at [1-376] have been amended to incorporate the reforms made by the Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014, which permits domestic violence offence complainants to give their evidence in chief by way of a prior recorded audio or a video and audio recording. They are also entitled to give evidence in court by way of CCTV if they are also complainants in prescribed sexual offence proceedings: new s 294B(2A) Criminal Procedure Act 1986.

[2-700]Complicity A reference to Gall v R [2015] NSWCCA 69 has been added at [2-730]. To be convicted of being an accessory after the fact, the prosecution must establish knowledge of the precise crime committed by the principal offender.

[3-600]Onus and standard of proof The suggested R v  Murray (1987) 11 NSWLR 12 direction at [3-610] and at [3-615] Notes have been amended following Ewen v R [2015] NSWCCA 117. A direction to scrutinise the complainant’s evidence with great care merely because it is uncorroborated is not required under s 133 Criminal Procedure Act 1986 and is prohibited by s 294AA(2) of the Act.

[5-950]Manslaughter The discussion at [5-980] Manslaughter by unlawful and dangerous act and the suggested direction at [5-990] have been revised to include R v Cornelissen [2004] NSWCCA 449 at [82] and R v Thomas [2015] NSWSC 537 at [69]. A moderate intellectual disability of the accused should be taken into account for the purposes of deciding whether a reasonable person in the position of the accused would have realised the act was dangerous.

[5-1550]Sexual intercourse without consent At [5-1568] Notes, a reference to the Crimes Legislation Amendment Act 2014, which extended the statutory definition of consent to attempted sexual assault offences from 23 October 2014, has been added. WO v DPP (NSW) [2009] NSWCCA 275 at [65], [80] held that s 61HA Crimes Act 1900 did not apply to attempt offences.

[6-400]Provocation/extreme provocation At [6-410] Leaving the defence to the jury The case of Lindsay v The Queen [2015] HCA 16 has been included concerning the task of deciding, as a question of law, whether there is material in the evidence which sufficiently raises the issue to leave provocation for the jury’s consideration.

The suggested provocation direction for murders allegedly committed before 13 June 2014 at [6-420] has been revised. A discussion of the Crimes Amendment (Provocation) Act 2014 has been incorporated at [6-440]. The Act substituted s 23 Crimes Act 1900 from 13 June 2014. The new provision restricts the operation of the partial defence of provocation to “extreme provocation”. Under s 23(2)(d), the loss of self-control is measured according to the objective test of the “ordinary person”, and the previous subjective aspect of the test (“could have induced an ordinary person in the position of the accused …”) was removed.

Update 46, April 2015

[1-000] — Outline of trial procedure Pasoski v R [2014] NSWCCA 309 at [1-005] has been added to explain the work s 306I(5) Criminal Procedure Act 1986 has to do. It allows the court to decline the admission of the record of evidence if the accused would be unfairly disadvantaged. It is directed to the position after specific questions of admissibility have been addressed.

[1-100] — Child witness/accused The chapter has been substantially revised. The repealed competence provisions applicable to trials which commenced before 2009 have been removed. The discussion includes the cases of MK v R [2014] NSWCCA 274, which held R v RAG [2006] NSWCCA 343 remains of assistance in determining the s 13(3) Evidence Act 1995 issue. MK v R also confirms that the issue of competency under s 13 requires a sequential mode of reasoning (at [1-123]). Warnings about children’s evidence at [1-135] has been revised to include Lyndon v R [2014] NSWCCA 112, which held it is not appropriate for a prosecutor to offer an opinion concerning his or her own experience and expertise with children giving evidence in court to suggest that children are generally truthful. ML v R [2015] NSWCCA 27 has also been added where the court rejected a submission that the judge erred by failing to warn the jury under s 165A(2) of the forensic disadvantage the appellant suffered by not being able to cross-examine the complainant (aged six years) due to her lack of memory (at [1-135]). A new section with a suggested direction at [1-140] has been added to address the scenario where the general reliability of children is in issue. That discussion includes reference to the Victorian case of CMG v R [2011] VSCA 416 and the English case of R v Barker [2010] EWCA Crim 4.

[2-950] — Consciousness of guilt, lies and flight The chapter has been revised at [2-953] to discuss the difficulties that can arise in the case where the Crown relies on evidence of a consciousness of guilt and there is an alternative charge or charges. The suggested direction concerning lies used as evidence of a consciousness of guilt at [2-965] has been amended to accommodate the decision of SW v R [2013] NSWCCA 103.

[4-200] — Tendency, coincidence and background evidence The chapter has been revised at [4-225] to take into account cases which address how the court should approach the issue of concoction: BJS v R (2013) 231 A Crim R 537 at [65]–[66] and Name Withheld [2014] NSWCCA 280. Campbell v R [2014] NSWCCA 175 at [259], [325]–[333], raised the issue of whether the standard of proof for tendency evidence should be proof beyond reasonable doubt.

[7-000] — Summing-up format The Notes have been revised at [7-040] to include a cross-reference to the alternative charges section and a brief reference to the decision of James v The Queen (2014) 88 ALJR 427.

Update 45, September 2014

[2-550] — Complaint evidence

The various references to repealed provisions in the Criminal Procedure Act 1986 have been removed on the basis that these would apply to very few or no trials. The direction at [2-620] Suggested direction — delay in, or absence of, complaint (on the complainant’s credibility) and the Notes at [2-630] have been revised following Jarrett v R [2014] NSWCCA 140 at [43]. The decision discusses the meaning and effect of s 294(2)(c) Criminal Procedure Act as contrasted with the common law approach. The direction at [2-650] Suggested direction — delay in complaint and forensic disadvantage to the accused under s 165B Evidence Act 1995 and the Notes have been amended following Jarrett v R at [61] and W v R [2014] NSWCCA 110, both of which discuss the focus of s 165B as compared to the common law approach in Longman v The Queen (1989) 168 CLR 79. W v R made clear that s 165B applies in judge-alone trials because of the terms of s 133 Criminal Procedure Act and notwithstanding the text in s 165B(1) which provides: “This section applies in a criminal proceeding in which there is a jury”.

[10-700] — Procedures for fitness to be tried and mental illness cases

New material relating to fitness and mental illness has been inserted in the Bench Book at [10-715]. It is authored by a Committee referred to in the text at [10-700]. The material provides:

  • a sequential procedural explanation of fitness

  • how and when information and/or recommendations may be sought from Justice Health, the Forensic Mental Health Network, and/or the Mental Health Review Tribunal, and

  • links to draft orders under the Mental Health (Forensic Provisions) Act 1990.

Cross references have been added to the new material at [4-150] — Special hearings and [4-300] — Unfitness.

[5-1100] — Murder

Campbell v R [2014] NSWCCA 175 has been added to the discussion of reckless indifference to human life.

[5-2000] — Kidnapping — take/detain for advantage/ransom/serious indictable offence

A Note has been added in [5-2010] Suggested direction — basic offence (s 86(1)) to include the scenario where the accused claims he or she had an honest and reasonable mistake of fact as to the (detained) child’s age following Ibrahim v R [2014] NSWCCA 160 at [53]–[54].

[4-080] — Recklessness (Malice)

The section was amended to make clear that the holding in Blackwell v R (2011) 208 A Crim R 392 only applies to a repealed form of the offence of recklessly caused grievous bodily harm under s 35(2) (repealed) Crimes Act 1900.

Update 44, June 2014

[1-360] Evidence given by alternative means and [1-800]Self-represented accused have been amended to incorporate the definitional amendments of the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth).

[4-080] — Recklessness (Malice)

A reference to CB v Director of Public Prosecutions (NSW) [2014] NSWCA 134 has been added. The terms of the specific offence will define what the Crown is required to prove. For destroying or damaging property under s 195(1) Crimes Act 1900 the Crown must prove foresight of harm to property to any degree from damage to destruction.

[4-335] — Views and demonstrations

The discussion at [4-340] has been amended to include Tongahai v R [2014] NSWCCA 81 that an accused can elect not to be present at a view and a court cannot compel the accused to attend a view.

[5-950] — Manslaughter

In [5-950] Introduction a reference has been inserted to Grant v R [2014] NSWCCA 67 at [63]–[66] to the mental element of manslaughter by excessive self-defence.

[5-1550] — Sexual intercourse without consent

The notes at [5-1565] have been amended to include Gillard v The Queen [2014] HCA 16 which provides guidance for the kind of jury directions required where consent is vitiated under s 61R(2)(b) (repealed) Crimes Act 1900. In the notes at [5-1568], a reference to Zhu v R [2013] NSWCCA 163 has been added. Directions on the issue of penetration for “proper medical purposes” (in the definition of sexual intercourse in s 61H Crimes Act) need not be given unless there is an evidentiary basis for doing so.

[8-050] — Prospect of disagreement

The notes (No 4) at [8-100] have been amended to include reference to BR v R [2014] NSWCCA 46 which addresses the meaning of “deliberation” and the matters which are included and excluded for the purposes of calculating the not less than eight-hour deliberation time before taking a majority verdict. A reference to s 68B Jury Act 1977 and Name withheld [2014] NSWCCA 83 has been added. The latter case held that the judge was not required to reveal to counsel the specifics of notes from the jury.

[10-670]ff — Miscellaneous — Operational guidelines

The Remote witness facilities operational guidelines have been reissued after the review conducted by the NSW Department of Police and Justice. New guidelines apply for:

  • Operational guidelines for judicial officers

  • Operational guidelines for legal representatives

  • Operational guidelines: system setup checklist

  • Operational guidelines for Sheriff’s/Court Officers

  • Operational guidelines for support persons.

Update 43, April 2014

[2-200] — Alternative verdicts and alternative counts

This chapter has been rewritten to include James v The Queen (2014) 88 ALJR 427, which disapproved of R v King (2004) 59 NSWLR 515. New commentary on the duty to leave an alternative verdict has been inserted at [2-205].

[5-950] — Manslaughter

The commentary and directions in this chapter have been rewritten. The chapter focuses upon involuntary manslaughter and includes the following suggested directions:

  • manslaughter by unlawful and dangerous act at [5-990] and

  • manslaughter by criminal negligence at [5-1010].

[4-200] — Tendency, coincidence and background evidence

KJS v R [2014] NSWCCA 27 has been added to the discussion of the admission of context evidence at [4-210].

Doyle v R [2014] NSWCCA 4 at [129] has been added to the discussion of tendency evidence at [4-230].

Update 42, December 2013

[1-360] Evidence given by alternative means

The table has been modified to incorporate the new definition of “sexual offence witness” defined in s 294D(2) Criminal Procedure Act 1986.

[5-1100]Murder

The section has been shortened and the commentary and directions have been rewritten. Several cross-references have been inserted to other sections of the Bench Book which commonly arise in murder trials including: Complicity at [2-700]ff, Voluntary act of the accused at [4-350]ff, Causation at [2-300]ff, Intoxication at [3-250]ff, Provocation at [6-400]ff, Self-defence (including excessive self-defence) at [6-450]ff and Substantial impairment by abnormality of mind at [6-550]ff.

New suggested directions for the mental ingredient of murder and constructive (felony) murder have been inserted at [5-1110] and [5-1130] respectively. The commentary for constructive murder at [5-1120] includes a discussion of Hudd v R [2013] NSWCCA 57 (the judge should instruct the jury in terms of the language used to describe constructive murder in s 18(1)(a) Crimes Act rather than some other verbal formula) and Penza v R; Di Maria v R [2013] NSWCCA 21 (the Crown must also prove that it was a voluntary or willed act of the accused or his or her accomplice).

The commentary for leaving the alternative verdict of manslaughter includes reference to Nguyen v The Queen (2013) 87 ALJR 853; Carney v R; Cambey v R (2011) 217 A Crim R 201 and Penza v R (cited above).

[4-100] — Silence – Evidence of

The commentary at [4-100] has been amended to include a brief discussion of the Evidence Amendment (Evidence of Silence) Act 2013 and also a cross-reference to Special Bulletin 31 published in August 2013. The Bulletin contains a discussion of s 89A.

[5-1550] — Sexual intercourse without consent

The commentary in Circumstances of aggravation under s 61J at [5-1585] has been amended to include KSC v R [2012] NSWCCA 179 at [124]–[126] and commentary in relation to “under the authority” in s 61H(2) Crimes Act. The term is defined under that section as follows: “a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person”. KSC v R [2012] NSWCCA 179 at [124]–[126] held that a judge was not required to supply the jury with dictionary definitions of the ordinary English words of “care”, “supervision” and “authority” in s 61H(2).

Miscellaneous — Appendices

The Operational Guidelines for Remote Witness Video Facilities in Appendices C-G have been removed as the NSW Department of Attorney General and Justice has advised that these Guidelines are in the process of being updated by the Department.

Update 41, May 2013

[1-000]Outline of trial procedure

Several cross-references have been added in this section to other parts of the Book.

[1-340]Cross-examination — improper; of defendant

A new section Cross-examination concerning complainant’s prior sexual history has been updated and moved from Sexual intercourse without consent and inserted at [1-342].

[1-349]Closed court, suppression and non-publication orders

This section has been streamlined and shortened. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 293 ALR 384 has been added. It addressed orders directed to internet content hosts and the appeal and review provisions of the Court Suppression and Non-Publication Orders Act 2010. D1 v P1 [2012] NSWCA 314 and D1 v P1 (No 2) [2012] NSWCA 440 have also been added. These cases dealt with appeals and review, granting orders to protect the safety of a person and whether general orders prohibiting publication of the existence of the proceedings should have been made.

[1-440]Jury

This section has been generally revised in light of the new material earlier published in Outline of trial procedure at [1-000]ff. Information about the jury booklet and DVD has been added at [1-475]. A new section Suggested written directions for the jury at the opening of a trial has been added at [1-480] with a link to a pdf version of the direction that can be printed by the judge for jurors and kept by them throughout the course of the trial. The direction explains, in simple terms, the trial process and deals with the following issues: the nature of the criminal trial, role of judge and jury, jury foreperson, onus and standard of proof, discussions outside jury room, the duty of a juror to report irregularities, criminal conduct by a juror during and after the trial, and media reports about the case.

The suggested direction on the advice/instructions to the jury on empanelling at [1-490] has been revised by, among other things, a part addressing the role of the foreperson.

A reference to WC v R [2012] NSWCCA 231 has been added at [1-520] in relation to appeals against discharge of a jury by the judge.

[1-600]Oaths and affirmations

This is a new section with suggested oaths/affirmations for witnesses, interpreters, jurors (individually and en masse) and for sheriff’s officers and a “shower” where a view is conducted. The chapter also describes the procedure for administering an oath upon the Koran.

[1-800]Self-represented accused

Paragraph [1-840] has been revised to make reference to Clark v R (2008) 185 A Crim R 1 and the “special care” that is required on the part of the judge to ensure that the legislation governing cross-examination by the accused about the complainant’s prior sexual history is followed and explained to the accused.

[2-300]Causation

This is a new section. The suggested direction [2-310] covers causation generally and the scenarios where there is evidence of more than one cause of harm and where it is alleged that the victim had a prior existing physical injury.

[2-700]Complicity

At [2-740] reference has been added to Huynh v The Queen [2013] HCA 6 at [31]–[33], [37] as to the directions that are usually required in a joint enterprise case and the meaning of participation. A reference has also been added at [2-770] to Penza v R; Di Maria v R [2013] NSWCCA 21 concerning the necessity for the jury to identify the act causing death and for it to decide whether the act was voluntary or accidental.

[2-1100]Expert evidence

A discussion of the decision of MA v R [2013] VSCA 20 concerning the admission of expert evidence under s 79(2) Evidence Act as to how a child may react to sexual abuse has been added at [2-1100].

[4-350]Voluntary act of the accused

This is a new section. A new suggested direction has been inserted at [4-365].

[4-370]Witness — not called

A new suggested direction has been added for the scenario where a complainant is not called following a retrial order at [4-377] together with a reference to PGM (No 2) v R [2012] NSWCCA 261.

[5-1550]Sexual intercourse without consent

The discussion makes reference to Name Withheld [2013] NSWCCA 58 at [80] as to the necessity to give a Markuleski direction where the complainant’s credibility looms large in the trial.

Update 40, February 2013

[1-435]Jury

The suggested direction on the advice/instructions to the jury on empanelling at [1-520] has been amended to include a direction about multiple accused. At [1-584] a suggested direction as to the use by the jury of the transcript can be found.

[3-250]Intoxication

This section has been re-written. A re-drafted suggested intoxication direction has been inserted at [3-255].

[3-350]Joint trials

The commentary has been re-written. A re-drafted suggested direction for a joint trial has been inserted at [3-360].

[4-200]Tendency, coincidence and background evidence

This section replaces the tendency and coincidence section of the Bench Book. It also replaces the previous directions for context evidence and tendency evidence in sexual assault cases. The new section has an additional direction for background evidence which includes relationship evidence and transactional evidence. The commentary also incorporates the discussion in Special Bulletin 30 concerning the importance of distinguishing between tendency evidence and background evidence. The new section includes the following directions with re-written commentary:

  • [4-215] Suggested direction — context evidence

  • [4-222] Suggested direction — background evidence

  • [4-227] Suggested direction — tendency evidence

  • [4-232] Suggested direction — tendency evidence in a child sexual assault case

  • [4-237] Suggested direction where coincidence evidence admitted as part of a circumstantial case

  • [4-240] Suggested direction where coincidence evidence relied upon for joinder of counts of different complainants.

[4-250]Unfavourable witnesses

This section has been re-written. A re-drafted suggested direction concerning the use of a prior inconsistent statement by a Crown witness has been inserted at [4-255].

[4-335]Views and demonstrations

This section has been re-written. A re-drafted suggested direction concerning a view has been inserted at [4-340]. Suggested oaths and affirmations for the sheriff’s officer and the shower (as explained) has been inserted at [4-341].

[5-1550]Sexual intercourse without consent

A reference to Name withheld [2012] NSWCCA 247 has been added to [5-1568] with a note to the effect that the Crown does not have to prove a complainant communicated his or her lack of consent in order to prove the accused’s knowledge of the complainant’s lack of consent.

Update 39, October 2012

[1-000]Outline of trial procedure

A new introductory section “Outline of trial procedure” has been inserted at [1-000]ff. The section provides an overview of pre-trial and trial procedures with reference to various sections of the Bench Book. This new section is intended to assist a judge conducting a criminal trial. Topics covered include: the trial court’s jurisdiction, the indictment, the arraignment of the accused, pre-trial rulings, empanelling the jury, the judge’s opening to the jury, opening addresses, witnesses in the Crown case, warnings and directions, warnings and exculpatory evidence, views, provision transcript to the jury, directions to acquit, the defence case, case in reply, discharge of the jury, closing addresses, summing-up, jury deliberations and the return of the jury. There are suggestions at various points that might be followed as a matter of practice by the trial judge but are not required by law.

[2-1000]Election of accused not to give evidence or offer explanation

This section has been re-written. A re-drafted suggested direction has been inserted at [2-1010] to address where the accused fails to give and call evidence.

[3-000]Identification evidence — visual forms

The commentary has been re-written and the suggested direction at [3-050] has been revised.

[3-100]Identification evidence — voice identification

This section has been re-written and a new suggested direction for voice identification has been inserted at [3-120].

[5-250]Dangerous driving

The suggested direction at [5-260] has been re-drafted to take account of King v The Queen (2012) 86 ALJR 833. The direction also deals with the defence of honest and reasonable mistake of fact, statutory presumptions concerning intoxication and available verdicts where a circumstance of aggravation is charged.

[5-2000]Kidnapping — take/detain for advantage/ransom/serious indictable offence

The direction at [5-2010] has been amended to reflect the amendment to s 86 by the Crimes Legislation Amendment Act 2012. The offence can also be committed where the offender takes and detains a person with the intention of committing a “serious indictable offence”.

 

Update 38, September 2012

The commentary and the directions for the following sections of the Criminal Trials Court Bench Book have been re-written:

[2-500]Circumstantial evidence

  • [2-520] Suggested direction — “strands in a cable case”

  • [2-530] Suggested direction — “link in a chain case”

[2-700]Complicity

  • [2-710] Suggested direction — accessory before the fact

  • [2-720] Suggested direction — accessory at the fact – aider and abettor

  • [2-730] Suggested direction — accessory after the fact

  • [2-750] Suggested direction — (a) joint criminal enterprise

  • [2-760] Suggested direction — (b) and (c) extended common purpose

  • [2-770] Suggested direction — application of joint criminal enterprise to constructive murder

  • [2-780] Suggested direction — withdrawal from the joint criminal enterprise

[2-1100]Expert evidence

  • [2-1110] Suggested direction — expert witnesses

[4-080]Recklessness (Malice)

The new section describes the complex statutory history, the effect of Blackwell v R (2011) 208 A Crim R 392 and the recently enacted Crimes Amendment (Reckless Infliction of Harm) Act 2012. The sections contain the following directions:

  • [4-085] Suggested direction — recklessness before the repeal of malice

  • [4-092] Suggested direction — offences with the ingredient recklessly cause/inflict a particular kind of harm where Blackwell v R applies

  • [4-097] Suggested direction — particular offences following the Crimes Amendment (Reckless Infliction of Harm) Act 2012

The suggested directions for Dangerous driving at [5-260] and Inferences at [3-150] have been amended slightly to take account of recent feedback.

 

Update 37, August 2012

[5-1550]Sexual intercourse without consent

 

Update 36, June 2012

[1-100]Child witness/accused A reference has been added at [1-123] to SH v R [2012] NSWCCA 79 concerning the statutory obligations of a court where a witness gives unsworn evidence; and at [1-135] to RGM v R [2012] NSWCCA 89 that generally judges should refrain from suggesting an approach to the assessment of the evidence of a child in the form of a direction except where a warning under s 165A(2) Evidence Act 1995 is required.

[2-550]Complaint evidence in sexual assault trials has been renamed Complaint evidence to make it clear that the law in this area extends beyond just sexual assault. The commentary has been revised and the directions re-written where evidence of complaint is admitted as first-hand hearsay at [2-570]; or limited under s 136 — [2-580]; or admitted to re-establish the credibility of the witness at [2-610]. Commentary has been added concerning evidence of complaint where the witness is not available under s 65(2).

The commentary and suggested directions for the following sections of the Bench Book have been re-written:

[2-950]Consciousness of guilt, lies and flight

[4-300]Unfitness

A new section — Special hearings has been added at [4-150].

[5-650]Indecent assault The “in company” section of the direction at [5-680] has been amended.

[5-1800] — Supply of prohibited drugs has been rewritten and includes commentary for the decision of R v Alliston [2011] NSWCCA 281.

[5-1550]Sexual intercourse without consent section has been amended to take account of the High Court decision of The Queen v Getachew (2012) 86 ALJR 397 at [29]–[31]. In the directions at [5-1550] and [5-1566], the line “On the other hand, you may decide that [he/she] might have believed, although wrongly, that [the complainant] was consenting to intercourse with [him/her]” has been altered to “On the other hand, you may decide on the basis of the evidence led in the trial [or if applicable and relied on by the accused] that [he/she] might have believed …”.

 

Update 35, March 2012

The commentary and directions for the following sections found in Trial instructions A-G have been rewritten.

[2-000] — Accusatory statements in the presence of the accused

[2-050] — Acquittal — directed

[2-100] — Admissions to police

[2-200] — Alternative verdicts and alternative counts

[2-250] — Attempt

[2-350] — Character

The sections — Change of plea, Pre-trial rulings and Knowledge — wilful blindness have been removed.

The commentary and directions for Kidnapping — take/detain for advantage/ransom at [5-2000] have been rewritten and also take account of Homsi v R [2011] NSWCCA 164.

 

Update 34, August 2011

Closed court, suppression and non-publication orders

This section has been rewritten following the enactment of the Court Suppression and Non-publication Orders Act 2010. Special Bulletin 24 has been incorporated and the text describing related statutory provisions has been streamlined.

Fraud – Part 4AA Crimes Act

This new section beginning from [5-552] has been inserted with Suggested directions for the offences created by the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009.

Summing-up

[7-020] Suggested direction — summing-up (commencement) has been amended to delete “time come” in the sentence. “Should, however, the time come when it is possible for me to accept a verdict which is not unanimous, I will give you a further direction” and in lieu thereof “circumstances arise” has been inserted.

Prospect of disagreement

The Notes at [8-070] and [8-100] have been amended to incorporate the majority verdict decision of Hunt v R [2011] NSWCCA 152:

[W]hen a Black direction is given in response to an indication by the jury that it is deadlocked or otherwise unable to reach a unanimous verdict, it would be prudent that, generally speaking, no subsequent direction should be given which does other than continue to exhort the jury to strive for a unanimous verdict prior to the expiry of a minimum 8 hours of deliberation (and if necessary, a greater period having regard to the nature and complexity of the issues in the case) and that this is so notwithstanding that the jury may continue prior to the expiry of that period to advise the court that it is unable to reach a unanimous decision. (The court at [33].)

No enquiry of the jury for the purpose of s 56(2) (that is, examination on oath of one or more of the jurors, that it is likely that the jurors will reach a majority verdict under s 55F) should be made until the point had been reached at which a majority verdict is capable of being taken: Hunt v R at [26].

 

Update 33, June 2011

The jury

The Notes at [1-540] and the paragraph Discharging individual jurors at [1-550] have been amended to include a reference to Smith v R [2010] NSWCCA 325.

Recklessness

This section has been substantially revised to include the decision of Blackwell v R [2011] NSWCCA 93 and the contents of Special Bulletin 23 (revised). The section now has two Suggested directions — Recklessness before the repeal of malice at [4-085] and Offences with the ingredient recklessly cause/inflict a particular kind of harm after the repeal of malice at [4-092] with new Introductory notes at [4-090].

Malice

This section has been amended to include cross-references to Recklessness at [4-085] where recklessness is relied upon by the Crown to establish “maliciously” for offences committed before February 2008, or for s 35 offences before 27 September 2007.

Tendency and coincidence evidence

The Introductory notes in Admission of tendency evidence at [4-200] have been substantially revised and the Notes preceding the Suggested direction — Tendency evidence at [4-210] have been amended. References to Bryant v R [2011] NSWCCA 26 (notice under s 97), DAO v R [2011] NSWCCA 63; BP v R [2010] NSWCCA 303 (concoction) and L’Estrange v R [2011] NSWCCA 89 (onus of proof for tendency directions) have been included.

Summing-up format

This section has been amended to include a reference to DJF v R [2011] NSWCCA 6 in Note 12 of [7-000] and Llewellyn v R [2011] NSWCCA 66 in Note 7 of [7-040] concerning directions where counsel commits an oversight. Note 8 Brief reference to majority verdicts in summing-up in [7-040] has been revised to include reference to the case of Ingham v R [2011] NSWCCA 88.

Prospect of disagreement

The Suggested direction State offences — majority verdicts at [8-070] has been amended to incorporate the Special Bulletin on the subject and the Notes at [8-100] have also been updated to incorporate reference to Ingham v R [2011] NSWCCA 88.

 

Update 32, December 2010

Privilege against self-incrimination

The section has been amended, at [1-420], to include Song v Ying [2010] NSWCA 237 which concerns whether s 128 Evidence Act applies to evidence given in chief. The section has also been updated to take into account amendments made by the Evidence Amendment Act 2010 and the Evidence Regulation 2010 in relation to s 128 certificates.

The jury

The introductory remarks in the direction at [1-520] have been amended to provide optional text concerning the impermissible use of the internet. The text in paragraph [1-582] Directions in writing has been updated to include references to R v Elomar [2008] NSWSC 1442 and Justins v R [2010] NSWCCA 242.

Alternative verdicts

The decision of Mifsud v R [2009] NSWCCA 313 has been added to the commentary at [2-210].

Complaint

Paragraph [2-645] which deals with delay in complaint and forensic disadvantage to the accused, has been amended to include reference to GG v R [2010] NSWCCA 230.

Pre-trial rulings

Paragraph [3-730] has been substantially revised and a reference to WO v DPP (NSW) [2009] NSWCCA 275 has been added to the section on Appeals by an accused pursuant to s 5F (Criminal Appeal Act 1912). A new section entitled Evidentiary rulings and s 130A has been inserted to include a reference to R v Ford [2009] NSWCCA 306.

Tendency and coincidence evidence

The commentary at [4-200] has been amended to include references to cll 5 and 6 Evidence Regulation 2010 and R v PWD [2010] NSWCCA 209. The suggested direction at paragraph [4-210], Tendency — s 97, has also been substantially revised.

Witness reasonably concerned in events leading up to proceedings

This section has been amended to include a reference to R v Chen [2010] NSWCCA 224. Paragraph [4-360], No corroborative evidence needed, has also been substantially revised.

Sexual intercourse without consent

Amendments have been made to Notes 2 and 8(b) in paragraph [5-1600], Relevance and admission of “other acts”. The suggested direction — Where evidence of other acts is led as tendency evidence in the form of a sexual interest which was acted upon under s 97 Evidence Act 1995 has been substantially revised to incorporate the standard of proof referred to in DJS v R [2010] NSWCCA 200.

Summing-up format

This section has been revised to include reference to AS v R [2010] NSWCCA 218 and Wong v R [2009] NSWCCA 101.

 

Update 31, October 2010

Closed court and non-publication orders

The decision of Nagi v DPP [2009] NSWCCA 197 has been added to the Table of statutory suppression orders in relation to s 126E(b) of the Evidence Act 1995.

Evidence given by alternative means

This section has been amended to include reference to the protections for sexual offence witnesses under s 294D of the Criminal Procedure Act 1986.

The jury

The paragraph [1-440] Adverse media publicity has been amended to include the decision of Dupas v The Queen [2010] HCA 20 which considered the issues associated with the grant of a stay where there has been extensive adverse media publicity.

Complaint evidence in sexual assault trials

The text in notes 1 and 2 at [2-573] has been amended to take into account the decision of R v XY [2010] NSWCCA 181 which considered s 66(2A)(a) of the Evidence Act 1995. A reference to ST v R [2010] NSWCCA 5 has been added to [2-645].

Expert evidence

The last Note in [2-1120], which deals with s 108C of the Evidence Act 1995 (exception to the credibility rule for expert opinion evidence), has been amended to include a reference to Thorne v R [2007] NSWCCA 10.

Identification evidence — visual forms

The paragraph [3-045] Exclusion of prejudicial identification evidence under s 137 Evidence Act 1995 has been amended to include the decision of FDP v R (2008) 74 NSWLR 645.

Tendency and coincidence evidence

The decision of R v Ford [2009] NSWCCA 306 has been added as note 6 to the Introductory notes at [4-200]. The paragraph [4-210] has been amended to include a reference to DJS v R [2010] NSWCCA 200.

Witness reasonably supposed to have been criminally concerned in the events

This section has been amended to include reference to the decisions of Kutschera v R [2010] NSWCCA 150 and R v GAR (No 2) [2010] NSWCCA 164.

Kidnapping — take/detain for advantage/ransom

A new section has been inserted to provide suggested directions and notes for the offence of detain for advantage, in its simple and aggravated forms.

Murder

The decision of R v PL [2009] NSWCCA 256 has been added to the Notes at [5-1250].

 

Update 30, May 2010

Child Witness/Accused

The decision of Pease v R [2009] NSWCCA 136 at [7]–[11] has been added to the discussion at [1-121] Competence — proceedings commenced before 1 January 2009.

Closed court and non-publication orders

The paragraph [1-356] Statutory provisions particularly the subheading “Children in criminal proceedings” has been amended to incorporate the provisions of the Children (Criminal Proceedings) Amendment (Naming of Children) Act 2009.

Evidence given by alternative means

A subheading “Government agency witnesses” has been added at [1-362] Giving of evidence by CCTV and the use of alternative arrangements to incorporate the use of audio-visual links referred to Supreme Court Practice Note General 15.

The Jury

A new paragraph [1-576] Appeals against decision to discharge has been added to suggest a procedural course for appeals under s 5G(1) of the Criminal Appeal Act 1912.

Onus and Standard of Proof

The decisions of Thorne v R [2007] NSWCCA 10 at [46] and DTS v R [2008] NSWCCA 329 at [45] have been added to the Notes at [3-615] for a Murray direction.

Pre-trial rulings

A new paragraph [3-735] Pre-trial and other orders binding has been added which addresses pre-trial orders and other orders which are binding on a subsequent trial judge following the enactment of the Criminal Procedure Amendment (Case Management) Act 2009.

Sexual Intercourse Without Consent

The Notes at [5-1565] have been amended to incorporate McGrath v R [2010] NSWCCA 48 at [11] — the Crown must prove the absence of consent, and knowledge of that absence of consent, beyond reasonable doubt “irrespective of the victim’s age”.

Miscellaneous

Naz Bruni’s paper Non-publication and suppression orders at [10-650] has been rewritten.

Index and Tables

A new Index and Table of statutes has been added.

 

Update 29, December 2009

Self-represented Accused

This section has been rewritten and a new Suggested advice and information to accused in the absence of the jury has been inserted at [1-010]. The suggested procedures and advice for self-represented accused in prescribed sexual offence proceedings has been substantially revised.

Privilege Against Self-incrimination

The commentary in this section has been amended to include reference to the amendments to s 128 Evidence Act 1995 by the Evidence Amendment Act 2007 which allow the self-incrimination protection to apply to a “a particular matter” and hence a class of questions. The Explanation to Witness in the Absence of the Jury at [1-405] has been revised and the Notes at [1-420] rewritten.

Complaint in sexual assault trials cases

The commentary at [2-645] has been revised to include reference to TJ v R [2009] NSWCCA 257 which held s 294(3)–(5) Criminal Procedure Act 1986 does not apply to persons charged before 1 January 2007. The Suggested Direction — Delay in complaint and forensic disadvantage to the accused at [2-650] has also been revised in light of the comments made in TJ v R about the common law Longman warning.

Consciousness of Guilt

The following sections have either been substantially revised or rewritten: commentary at [2-950]; the Suggested Direction — Lies used as evidence of a consciousness of guilt at [2-960]; the Notes at [2-965]; Flight (absconding) at [2-965] and Suggested Direction from Zoneff v The Queen — limiting the use of lies to credit at [2-970].

Onus and Standard of Proof

A new [3-625] Motive to lie and the onus of proof has been added which addresses appropriate directions where the defence asserts that a Crown witness has a motive to lie; where the accused is impermissibly cross-examined in terms of “why would the complainant lie?”; and the importance of not directing the jury that the accused’s interest in the outcome of the proceedings is a factor relevant to credit.

Tendency and Coincidence Evidence

The section has been revised to include a Note before the suggested tendency and coincidence directions to the effect that although DJV v R [2008] NSWCCA 272 at [30] held that “in sexual assault cases the appropriate standard of proof of tendency evidence is beyond reasonable doubt” the issue of whether that standard of proof extends to cases other than sexual assault cases is yet to be determined. The Notes for coincidence evidence at [4-210] have been amended to include reference to the Evidence Amendment Act 2007 amendments to s 98.

Contempt in the face of the Court

This section has been updated and in part rewritten.

Sexual Intercourse Without Consent

The section headed Relevance and admission of “other acts” has been amended to include reference to Toalepai v R [2009] NSWCCA 270 at [47] which discusses when context evidence has been admitted.

 

Update 28, October 2009

The Jury

The Notes at [1-540] have been amended to incorporate the decision of Burrell v R [2007] NSWCCA 65 which discussed the issue of communications between judge and jury, and disclosure to trial counsel.

A new paragraph Directions in Writing at [1-582] has been added dealing with s 55B Jury Act 1977 which permits a judge to give directions of law to a jury in writing.

A new paragraph Assumed identities and prosecution witnesses at [1-581] has been added to incorporate cl 4A Jury Regulation 2004 amended by Jury Amendment (Assumed Identities) Regulation 2009. The amendment provides that the identity of certain principal witnesses must not be disclosed to the jury. The commentary also includes reference to the decision of Dodds v R [2009] NSWCCA 78 at [60] which sets out a procedure where the trial judge decides to withhold the names of officers who are subject to assumed identity approvals.

Identification Evidence — Visual Forms

This section was amended to include a reference to Aslett v R [2009] NSWCCA 188 on the issue of in-court identifications at [3-005].

Sexual Intercourse — Intellectual Disability

This section has been renamed Sexual Intercourse — Cognitive Impairment following the enactment of Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008. The Suggested Directions and notes for the new offences created by the amending Act have been included at [5-1710]ff.

The contents of the previous section Sexual Intercourse — Intellectual Disability have been retained at the end of the section to provide guidance in instances where an offence under s 66F Crimes Act 1900 was committed prior to 1 December 2008.

 

Update 27, September 2009

Circumstantial Evidence

This section has been amended to incorporate at [2-500], the decisions of Burrell v R [2009] NSWCCA 163 and Davidson v R [2009] NSWCCA 150 which address when a “links in the chain” Shepherd v The Queen (1990) 170 CLR 573 at 585 direction can be given. It should not be given if it will be confusing. The statement in R v Merritt [1999] NSWCCA 29 — that such a direction would “usually be essential” — does not accord with the principle that such a direction is “customarily given” or “often called for”: Davidson v R at [14], [18].

Complaint Evidence

The Notes at [2-573] have been amended to incorporate the decisions of Gordon-King v R [2008] NSWCCA 335 and Name withheld [2009] NSWCCA 93 which address the question of whether a complaint is “fresh in the memory” of the complainant under the previous form of s 66 Evidence Act 1995.

Prison Informers — Confessions to

This section has been retitled “Prison Informers — Warnings”. The Suggested Direction at [3-760] and the accompanying text at [3-750] have been completely re-written.

Silence — Evidence of

This section has been amended to incorporate at [4-100], the decision of Sanchez v R [2009] NSWCCA 171 where it was held that s 89 Evidence Act 1995 is narrower in its scope than the common law right to silence. The Note at [4-130] has been amended to address the issue of when a right to silence direction is appropriate: Sanchez v R at [58].

Sexual Intercourse Without Consent

The Suggested Direction at [5-1550] has been revised to incorporate recklessness into the main body of the direction. The recklessness (as to consent) decision of Bochkov v R [2009] NSWCCA 166 was also added to the Notes.

The Notes at [5-1590] on context evidence were revised to incorporate JDK v R [2009] NSWCCA 76 which articulates the current approach to the admission and use of context and tendency evidence in sexual assault trials.

The tendency evidence Suggested Direction at [5-1630] was amended to include reference to where the accused is said to have a sexual interest in the complainant: HML v The Queen (2008) 235 CLR 334. A Note following the coincidence evidence Suggested Direction at [5-1640] was inserted to incorporate Samadi v R [2008] NSWCCA 330.

Substantial Impairment by Abnormality of Mind

The commentary at [6-550] has been amended to update the text on diminished responsibility (the repealed form of s 23A Crimes Act 1900) and to incorporate the decisions of Zaro v R [2009] NSWCCA 219 and R v Gosling [2002] NSWCCA 351 which address the irrelevance of self-induced intoxication. The Suggested Direction at [6-570] has also been improved.

Prospect of Disagreement

This section has been amended to incorporate at [8-050], the decision of Burrell v R [2009] NSWCCA 163 where a note was received from a juror stating that other jury members were pressuring him or her into agreeing with them.

 

Update 26, June 2009

Attempt

The Suggested Direction at [2-250] has been revised to remove the reference to “rather than remotely” which was originally included as an explanation of the term “immediately”.

Expert Evidence

This section was amended to change part of the Suggested Direction at [2-1110] from passive voice to active voice. The commentary at the end of the section was also revised to include amendments to s 79(2) Evidence Act 1995 which now states that opinion evidence of child development and child behaviour, including children who have been victims of sexual assault, are exceptions to the opinion rule in s 76. A reference to s 108C Evidence Act 1995 was also included. Section 108C provides an exception to the credibility rule for evidence of an expert opinion that could substantially bear upon the credibility of a witness.

Identification Evidence — Voice Identification

This section beginning [3-100] has been re-written to incorporate the decisions of Dhanhoa v The Queen (2003) 217 CLR 1 at [22] and [53]; R v Madigan [2005] NSWCCA 170 at [99]; R v Korgbara (2007) 71 NSWLR 187 and Irani v R [2008] NSWCCA 217.

Onus and Standard of Proof

The Suggested Direction at [3-600] was amended to insert “In other words you should ask yourself: is there any reasonable possibility that the accused is not guilty?” and to delete:

In other words you should ask yourselves whether there is any reasonable possibility that the accused did not do what the Crown alleges against him/her. Unless the Crown satisfies you that no such possibility exists you must find the accused not guilty.

Summing up Format

The Suggested Direction at [7-020] was revised to replace the expression “not a verdict of you all” with “which is not unanimous”. The expression “disregard” was also replaced with the word “ignore” to avoid the use of antonyms which are more difficult for jurors to comprehend than words with a different root.

Prospect of Disagreement

The Suggestion Direction at [8-070] has been amended to replace the term “majority verdict” with the expression “which is not unanimous”.

Index and Tables

The Index and Table of Statutes have been updated.

 

Update 25, May 2009

Cross-examination

This section has been retitled “Cross-examination — Improper; of Defendant”. The section at [1-340] incorporates a reference to the new s 41 inserted by the Evidence Amendment Act 2007 (which repealed s 275A Criminal Procedure Act 1986). The Notes following have also been rewritten.

The section at [1-343] has been revised to incorporate the recent amendment to s 104 Evidence Act 1995. The Notes following have also been rewritten.

The Jury

The commentary in the section on adverse media publicity at [1-440] has been amended to include a reference to Skaf v R [2008] NSWCCA 303. The Suggested Direction at [1-520], “Advice/instructions to the jury on empanelling” has been amended to include a section entitled “Breaks”.

Accusatory Statements in the Presence of the Accused

The Suggested Direction in this section at [2-020] has been substantially revised and the commentary completely rewritten to include references to the Evidence Act and the common law.

Election by Crown Not to Call Witness

This section has been retitled “Witnesses — Not called by Crown”. The Suggested Comment at [2-1060] and commentary at [2-1050] have been completely rewritten to incorporate the High Court decision of Mahmood v State of Western Australia (2008) 232 CLR 397 which overruled the decision of R v Riscuta [2003] NSWCCA 6.

Identification Evidence — Visual

This section has been retitled, “Identification Evidence — Visual Forms”. The Suggested Direction at [3-020] has been substantially revised. The commentary and Notes have been rewritten to include recent authorities, including R v Mundine (2008) 182 A Crim R 302 and Trudgett v R [2008] NSWCCA 62.

Silence — Right To

This section has been retitled “Silence — Evidence of”. The Suggested Direction at [4-110] and Notes following at [4-130] have been rewritten. The Evidence Amendment Act 2007 replaced the expression “in the course of official questioning” in s 89 Evidence Act to “by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence”.

 

Update 24, March 2009

Child witness/accused

This section has been amended to include the amendments made by the Evidence Amendment Act 2007 for competence to give evidence at [1-120]–[1-123], giving “Evidence in narrative form” at [1-125], and judicial “Warnings about children’s evidence” at [1-130]–[1-135]. Reference to the authority of R v RELC (2006) 167 A Crim R 484 at [77] which discusses judicial warnings about children’s evidence has been added.

Complaint evidence in sexual assault trials

This section has also been revised to include the amendments made by the Evidence Amendment Act 2007. Commentary has been added to the section at [2-573] addressing first-hand hearsay, particularly the insertion of the new s 66(2A) which sets out matters that are relevant to determining whether an asserted fact is “fresh in the memory”. The section discussing re-establishing credibility at [2-590] has been amended to add a reference to the re-formulated credibility rule in ss 101A and 102 and its lack of effect on the operation of s 60.

Commentary has been added to the section on “Delay in complaint and forensic disadvantage to the accused” at [2-645] to include a reference to the repeal of s 294(3)–(5) of the Criminal Procedure Act 1986 and enactment of s 165B of the Evidence Act. References to the authorities of R v Sood [2007] NSWCCA 214 at [38]; R v Mundine [2008] NSWCCA 55 at [33]; Gonzales v R (2007) 178 A Crim R 232 at [70] and AW v R [2009] NSWCCA 1 at [37] have also been added.

Mental Illness — Including Insane Automatism

The section has been amended to delete references to the Mental Health (Criminal Procedure) Act 1990. That Act has been renamed the Mental Health (Forensic Provisions) Act 1990 by the Mental Health Legislation Amendment (Forensic Provisions) Act 2008. Section 37 provides that the court must explain to the jury the findings which may be made where an issue arises as to whether the accused is mentally ill. Both the suggested oral direction at [6-260] and the suggested written direction at [6-270] have been rewritten to reflect the new function of the Tribunal of ordering rather than recommending the release of forensic patients. The directions have also been redrafted in an other respects.

 

Update 23, December 2008

Evidence given by alternative means

This new section Evidence given by alternative means comprehensively addresses directions or warnings where evidence is given by alternative means particularly Closed Circuit Television (CCTV), alternative seating arrangements, the use of screens, support persons, the admission of pre-recorded out-of-court representations to police and evidence given via audio visual link.

Sexual intercourse without consent

The commentary at [5-1560] has been revised to include reference to CTM v The Queen (2008) 82 ALJR 978 at [38] to the effect that notwithstanding the authority of R v Murray (1987) 11 NSWLR 12 at 15 a direction on recklessness may be required even where the accused denies sexual intercourse took place.

The commentary at [5-1600] has been revised to remove reference to the case of Boney v R [2008] NSWCCA 165 and in its place the case of Name withheld [2008] NSWCCA 272. The latter case resolves issues about the relevance, admissibility and standard of proof of evidence of “other acts” not charged which is adduced as “context” evidence or tendency evidence. The context evidence suggested direction at [5-1620] has been amended so that the jury is not instructed that they must accept it beyond reasonable doubt. The tendency and coincidence evidence suggested directions, at [5-1630] and [5-1640] respectively, have been amended to reflect that those forms of evidence must be accepted beyond reasonable doubt by the jury following Name withheld [2008] NSWCCA 272 at [30]–[31].

Sexual Intercourse — Intellectual Disability

The commentary in this section has been revised at [5-1700] following the passing of the Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008.

Prospect of disagreement

The commentary at [8-080] has been revised to re-emphasise that a trial judge should be careful not to undermine the effect of a Black v The Queen (1993) 179 CLR 44 direction by foreshadowing the acceptance of a majority verdict: RJS v R (2007) 173 A Crim R 100 at [22]. The Notes at [8-100] have been amended to make clear that the majority verdict direction does not obviate the need to first give the jury a Black direction without reference to the fact or the circumstances in which a majority verdict may be returned by the jury. A majority verdict direction cannot be given until the court has “strictly observed” the two “essential preconditions” under s 55F(2) of the Jury Act 1977 and the trial judge must make a finding that both preconditions are satisfied: RJS at [19], AGW v R [2008] NSWCCA 81 and Hanna v R [2008] NSWCCA 173 at [72].

Mental Illness — Including Insane Automatism

The commentary at [6-295] has been added to reiterate that as soon as practicable after the making of an order under s 39 of the Mental Health (Criminal Procedure) Act 1990 the registrar of the court is to notify the Minister of Health and the Mental Health Tribunal of the terms of the order.

Self defence

The commentary at [6-450] has been improved and the suggested direction at [6-460] has been streamlined.

 

Update 22, October 2008

The Jury at [1-435]ff

This section has been revised and updated (except for the direction issued in August 2008 [1-520]Suggested Direction — Advice/instructions to the jury on empanelling) to include notes in the following paragraphs addressing the following subjects: [1-435] Number of jurors; [1-436] Prohibition on the supply of names of jurors; [1-440] Adverse media publicity; [1-470] Right to challenge; [1-500] Delivery of the accused into the “charge of the jury”; [1-550] Discharging individual jurors; [1-552] Discharging individual jurors — illness; [1-555] Discharging individual jurors — reasonable apprehension of bias; [1-575] Discharging the (whole) jury; [1-583] Provision of transcripts; and [1-650] Irregularities in empanelment.

The following directions have been revised or added [1-490] Suggested Direction — Advice to self represented accused on right to challenge; [1-545] Suggested Direction — Crown opening; and [1-546] Suggested Direction — Defence opening with notes on the latter subject.

Indecent assault at [5-650]ff

This section has been comprehensively revised to include new suggested directions and notes for: [5-660] Suggested Direction — s 61L (no aggravating circumstances alleged); [5-670] Notes — Basic offence of indecent assault — essential ingredients; [5-680] Suggested Direction — s 61M (aggravating circumstances alleged); [5-690] Notes — aggravated indent assault; and [5-710] which is a suggested direction for an alternative verdict under s 61Q where the circumstance of aggravation relied upon by the Crown is not proved.

Sexual intercourse without consent at [5-1550]

A new [5-1590] Suggested R v Markuleski (2001) 52 NSWLR 82 Direction — multiple counts with notes on the subject has been included. The paragraph [5-1600] Relevance of acts not the subject of a charge and following which address context, tendency and coincidence evidence have been replaced. The suggested directions and notes on those subjects have been completely revised and re-written to take account of the High Court decision in HML v The Queen (2008) 82 ALJR 723.

Tendency and coincidence evidence at [4-200]ff

The notes in this section have been rewritten and the suggested directions have either been substantially revised or rewritten.

 

Update 21, August 2008

Supply of Prohibited Drug and Deemed Supply

[5-1810] — Suggested Direction – actual supply (including (large) commercial quantity)

[5-1820] — Suggested Direction – deemed supply (including (large) commercial quantity)

[5-1825] — Suggested Direction – Ongoing supply

New comprehensive Notes follow each of these suggested directions.

The Jury

The Suggested Direction — Advice/instructions to the jury on empanelling at [1-520] has been redrafted.

Onus and Standard of Proof

A typographical error in the direction at [3-600] has been removed.

Malice and recklessness

The Notes at [3-560] have been amended to include Hogan v R [2008] NSWCCA 150 at [66] where it was held that it is preferable for a judge not to state the full definition of malice in repealed s 5 of the Crimes Act to the jury but rather to confine the direction to the elements of the definition in s 5 that are relied upon by the Crown on the evidence.

Complaint evidence in sexual assault trials

The Notes at [2-573] have been amended to record that the period of delay in complaint in Langbein v R [2008] NSWCCA 38 at [85] as 85 days (not 66) following the publication of an amended judgment by the court.

Miscellaneous

Listening Devices Legislation — Terminology, Offences and Exceptions at [10-000][10-220] has been removed following the commencement of the Surveillance Devices Act 2007 on 1 August 2008 and Bail at [9-000][9-150] has been removed.

 

Update 20, June 2008

[3-600] Onus and standard of proof — The directions and notes on onus and standard of proof have been revised. The section includes a direction derived from R v Murray (1987) 11 NSWLR 12 where the Crown case is dependent upon the evidence of one witness. The Notes also refer to new s 294AA Criminal Procedure Act 1986, which prohibits warnings on the danger of convicting on the uncorroborated evidence of a complainant in prescribed sexual assault proceedings.

[4-080] Recklessness — A new stand-alone section with suggested directions on recklessness is included in the Bench Book following the removal of the concept of “malice” as a fault element under the Crimes Act 1900. All offences under the Crimes Act with recklessness as an available element are listed.

[4-300] Unfitness — Consequential amendments are made to the Bench Book following the introduction of amendments to the Mental Health (Criminal Procedure) Act 1990 pursuant to Schedule 7 Mental Health Act 2007, which commenced on 16 November 2007. The term “hospital” is replaced by “mental health facility”.

[5-1550] Sexual intercourse without consent — New directions and notes are included in light of the amendments to the definition of consent for offences alleged to have been committed on or after 1 January 2008. The Bench Book retains directions for offences of sexual intercourse without consent alleged to have been committed prior to that date. The section is re-structured to provide basic directions for offences under s 61I first, followed by directions and notes on the aggravated offence under s 61J.

[6-200] Mental illness — including Insane Automatism — The notes are revised to clarify that the standard of proof in establishing the defence of mental illness is on the balance of probabilities, although the onus is on the Crown to negative automatism beyond reasonable doubt.

 

Update 19, April 2008

[3-250] Intoxication — No 4 of the Notes at [3-310] has been deleted to remove the reference and discussion of R v Moreau (1986) 26 CCC (3d) 359.

[3-550] Malice and recklessness — The introductory notes and malice direction at [3-580] have been re-written. The section also incorporates the Crimes Amendment Act 2007 which removed the word “maliciously” as a fault element in various offences under the Crimes Act 1900 and replaced it with the fault elements of intention and/or recklessness. The new notes also define the concept of recklessness (excluding murder) from R v Coleman (1990) 19 NSWLR 467.

[5-100] Break, enter and steal — The notes at [5-110] incorporate the case of Stanford v R [2007] NSWCCA 370 (which defines the meaning of “breaking”) and the amendments to s 112 Crimes Act by the Crimes Amendment Act 2007 which extended the availability of the offence beyond the premises previously identified in s 112.

[7-000] Summing up format — Notes at 8 (Brief reference to majority verdicts in summing up) have been revised to include, inter alia, reference to Ngati v R [2008] NSWCCA 3 and the matters in Special Bulletin 20 which concerned the essential statutory pre-conditions that have to be satisfied before a majority verdict can be taken as explained in RJS v R [2007] NSWCCA 241; (2007) 173 A Crim R 100.

[8-000] Return of the jury — The Notes at [8-030] have been revised.

[8-050] Prospect of disagreement — The introductory notes have been amended to add Timbery v R [2007] NSWCCA 355 which applied Black v The Queen (1993) 179 CLR 44 at 51–52 regarding the importance of each member of the jury giving the issues at trial free deliberation and not being the subject to any risk of pressure. The section also incorprates RJS v R [2007] NSWCCA 241; (2007) 173 A Crim R 100 regarding Black directions before the time for taking a majority verdict has arrived.

 

Update 18, March 2008

Child Witness/Accused

The references to the repealed Evidence (Children) Act 1997 have been removed and replaced with the re-enacted provisions found in the Criminal Procedure Amendment (Vulnerable Persons) Act 2007 in this chapter and in the “Sexual Assault/Aggravated sexual assault” chapter at [5-1647] and [5-1657].

Closed court and non-publication orders

This is a new section addressing the above topic. It also contains a Table of statutory suppression orders.

Complaint evidence in sexual assault trials

[2-573] Notes
A reference to Langbein v R [2008] NSWCCA 38 at [85] (a lapse of time of 66 days was so significant that the asserted facts could not be fresh in the memory) has been added to the Notes addressing complaint evidence admitted under s 66(2).

[2-575] Prior consistent statements — s 108(3)
The Notes have been revised and the authorities of Abdul-Kader v R [2007] NSWCCA 329 at [44]–[46], [50] (a prior consistent statement may not be admissible if it adds nothing to what is said by a witness at trial) and Pavitt v R [2007] NSWCCA 88 (the evidence of complaint was admissible despite the fact that these complaints were made some years after the commission of the offences).

[2-630] Absence of, or delay in, complaint
This section has been completely re-written. It includes at [2-635] a new Suggested direction — Delay in, or absence of complaint to be taken into account in assessing the complainant’s credibility and comprehensive Notes on that subject at [2-640]. A new section at [2-645] Delay in complaint and forensic disadvantage to the accused has been added which includes at [2-650] a Suggested Direction — Delay in complaint and forensic disadvantage to the accused. The Notes at [2-660] address the circumstances when a Longman direction should be given and include a discussion of s 294(3) of the Criminal Procedure Act 1986 and the authorities up to R v Perez [2008] NSWCCA 46.

Pre-trial rulings

[3-730] This section has be re-written and includes the authorities of R v GAC [2007] NSWCCA 315 and Pellegrino v DPP [2008] NSWCCA 17.

Manslaughter

The direction for manslaughter by criminal negligence at [5-1000] has been revised. The Note at [5-1020] addressing The Queen v Lavender (2005) 222 CLR 67 has been amended to add the following propositions:

(a) 

the defence of honest and reasonable mistake of fact does not apply to the offence;

(b) 

the jury in appropriate cases can take into account “…some particular fact or circumstance which the [accused] knew, or thought he knew and which contributed to an opinion”; and

(c) 

the offence does not require a subjective appreciation by the offender that the conduct engaged in is unsafe.

 

Update 17, April 2007

A new Index and Table of Statutes have been prepared.

 

Update 16, December 2006

Child Witness/Accused

Paragraph [1-055] has been amended to incorporate the case of R v RAG, which outlines the requirements for determining whether a child is competent to give unsworn evidence, pursuant to s 13 of the Evidence Act 1995.

Complaint in Sexual Cases

[2-550]–[2-635]: New directions for complaint evidence admitted under s 66 of the Evidence Act or as a prior consistent statement under s 108 of the Act have been inserted. The notes to these directions have also been rewritten.

Unfitness

One minor typographical amendment was made at [4-305].

Sexual Assault and Aggravated Sexual Assault

Paragraph [5-1565] was inserted to provide a note on Banditt v The Queen (2005) 80 ALJR 421 (in lieu of the CCA case), which deals with recklessness as to consent.

 

Update 15, October 2006

Update 15 contains material that integrates developments arising from, inter alia, the Criminal Procedure Further Amendment (Evidence) Act 2005, Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005, R v Kanann [2006] NSWCCA 109, R v Ilioski [2006] NSWCCA 164, R v Robinson [2006] NSWCCA 192, Mule v The Queen (2005) 79 ALJR 1573, and R v NZ (2005) 63 NSWLR 628. It also inserts as appendices a Practice Note on Media Access to Sexual Assault Proceedings Heard in Camera and a Practice Note on Management of Prescribed Sexual Offence Proceedings. Other new appendices include an article on “Closed Courts and Suppression Orders” and operational guidelines on remote witness video facilities.

The following sections have been updated:

Advice to Self-Represented Accused
Miscellaneous changes have been made to this chapter, including the insertion of additional notes and references to NSW Bar Association and NSW Law Society guidelines for barristers and solicitors when dealing with self-represented litigants.

Child Witness/Accused
This chapter has been updated to incorporate commentary on: proceedings in respect of prescribed sexual offences [1-052]; the exclusion of the public from criminal proceedings [1-060]; restriction on disclosure of evidence in proceedings in respect of a prescribed sexual offence [1-070]; support persons [1-080]; CCTV [1-130]–[1-140]; the preferred procedure where the evidence in chief of a witness has been given by the playing of a videotape as outlined in R v NZ (2005) 63 NSWLR 628 [1-095]; the warning to the jury where evidence is in the form of a recording [1-120]; and publicity on sentencing for serious indictable offences [1-180].

Closed Court and Non-publication Orders
This chapter has been updated to include in Appendix H a paper by N. Bruni,“Closed Courts and Suppression Orders”, and to incorporate commentary on protecting complainants from publicity in proceedings in respect of a prescribed sexual offence [1-350].

Evidence of Witnesses by Audio Visual Link
The amendments made to this chapter include material on a complainant giving evidence by CCTV and other alternative arrangements in prescribed sexual offence proceedings [1-370], and operational guidelines for the use of remote witness video facilities [1-380].

The Jury
Miscellaneous changes have been made (citations were updated throughout and the term “unrepresented” was changed to “self-represented”).

Admissions to Police
This chapter has been revised to incorporate Special Bulletin No 15, which discusses, inter alia, the cases of Mule v The Queen (2005) 79 ALJR 1573 and R v Wilson (2005) 62 NSWLR 346. New text has been inserted from Special Bulletin 15 at [2-150] on appropriate directions where the accused participates in a pre-trial ERISP and makes both inculpatory and exculpatory representations, but elects not to give evidence at trial.

Election of Accused Not to Offer Explanation
Miscellaneous changes have been made, including the insertion of a cross reference to the Admissions to Police chapter.

Identification Evidence — Visual
The text on warnings to the jury about negative or exculpatory identification evidence [3-028] has been extensively revised to reflect what was held in R v Kannan [2006] NSWCCA 109. The appropriate form of such directions is outlined. The text at [3-010], the “Giving of Directions”, has been amended in light of R v Ilioski [2006] NSWCCA 164. Incidental changes were also made at [3-000], [3-010], [3-025] and [3-030].

Pre-Trial Rulings
This chapter has been amended, inter alia, to include new commentary on pre-trial orders in proceedings for prescribed sexual offences dealt with on indictment [3-735].

Silence—Right to
Miscellaneous changes made, including the insertion of a cross reference to the Admissions to Police chapter.

Unfitness
Paragraph [4-335] has been amended to provide some statutory background to the situations where a court must refer a matter to the Mental Health Review Tribunal. The text supplements the draft orders listed in [4-335]. The case of R v AN (No 2) [2006] NSWCCA 218 has also been added to [4-335]. It addresses the nature and ambit of the power of the court to make orders pursuant to s 27(b) of the Mental Health Criminal Procedure Act 1990.

Witness reasonably supposed to have been criminally concerned in the events
This chapter has been amended in light of R v Robinson [2006] NSWCCA 192, with new text on “Exceptional use of the ‘dangerous to convict’ formulation” being inserted at [4-361].

Indecent Assault
Revised commentary on proceedings in respect of prescribed sexual offences [5-660], addressing recent procedural reforms, has been included. Other miscellaneous changes have been made to the text and citations.

Sexual Assault and Aggravated Sexual Assault
This chapter has been updated with new commentary on procedural reforms for proceedings in respect of “prescribed sexual offences” [5-1645], including: the need to ensure that proceedings are held in camera when the complainant gives evidence [5-1647]; media access to proceedings held in camera [5-1649]; suppression orders for evidence [5-1651]; arrangments for complainant’s giving evidence when accused is unrepresented [5-1653]; alternative arrrangments for complainant giving evidence [5-1655]; complainant’s entitlement to a support person [5-1657]; pre-trial orders [5-1659]; and the admissibility of the complainant’s original evidence in retrials of prescribed sexual offence proceedings [5-1661].

Sexual Intercourse—Intellectual Disability
Commentary on prescribed sexual offences has been incorporated [5-1705].

Miscellaneous
Eight appendices have been added, as briefly described in the introductory paragraph, above, including operational guidelines issued by the Attorney General (NSW) regarding remote witness video facilities.

 

Update 14, September 2006

Update 14 amends the Bench Book to incorporate recent changes to the Jury Amendment (Verdicts) Act 2006 and the Mental Health (Criminal Procedure) Amendment Act 2005. The following sections have been revised or replaced:

Unfitness
The entire section has been revised.

Witness reasonably supposed to have been criminally concerned in the events
Paragraph [4-360] has been completely revised.

Miscellaneous amendments were also made to the following chapters:

Onus and Standard of Proof
Summing Up Format
Return of the Jury
Prospect of Disagreement

 

Update 13.1, May 2006

The contents of Special Bulletin 16 — Jury Amendment (Verdicts) Act 2006 No 19, published on 23 May 2006, has been incorporated into the following paragraphs:

Onus and Standard of Proof
The Direction at [3-600] has been amended.

Summing Up Format
The Direction at [7-020] has been amended.

Return of the Jury
The text at paragraphs [8-020] and [8-030] has been amended.

Prospect of Disagreement
The text at paragraph [8-070] has been amended.

 

Update 13, February 2006

Update 13 amends the Bench Book to incorporate recent case law. The following chapters have been revised:

Alibi
This section, particularly the directions, has been revised extensively in response to R v Kannan [2005] NSWCCA 385 and R v Skondin NSWCCA 417.

Murder
This section has been updated in light of R v Kannan [2005] NSWCCA 385.

Alternative verdicts and alternative counts
Minor amendments have been made in light of R v Kannan [2005] NSWCCA 385.

Provocation
An aspect of the direction has been deleted in consideration of R v Khalouf [2005] NSWCCA 39.

 

Update 12, October 2005

Update 12 amends the Bench Book to incorporate recent case law and legislative developments. The following chapters have been revised:

Cross-examination
Commentary on the new s 275A of the Criminal Procedure Act 1986 has been included in relation to improper questioning of witnesses.

Election of accused not to offer explanation
Commentary has been included at [2-1020] in relation to directions about the trial silence of the accused.

Manslaughter
Amendments have been made to reflect the decision of the High Court in R v Lavender [2005] HCA 37, which held that malice is not an element of the offence of manslaughter, and the decision of the NSWCCA in R v IBY [2005] NSWCCA 178 regarding the born alive rule.

Murder
New directions have been drafted and are based on R v Katarzynski [2005] NSWCCA 72.

Sexual Assault and Aggravated Sexual Assault
New commentary to reflect amendments to the Criminal Procedure Act 1986 has been inserted. The amendments are found at [5-1646] and [5-1647].

 

Update 11, May 2005

Update 11 amends the Bench Book to incorporate recent case law and legislative developments.

The following chapter is new:

Criminal Code Act 1995 (Cth) and Schedule thereto entitled the Criminal Code

The following chapters have been revised:

Cross examination of the accused
Non-publication Orders
Privilege Against Self-incrimination
The Jury
Admissions to Police
Alternative Verdicts and Alternative Counts
Change of Plea
Character
Complicity
Expert Evidence
Intoxication
Joint Trials
Jury — Inspection by, or Demonstration or Examination Before
Onus and Standard of Proof
Tendency and Coincidence Evidence
Unfitness
Witness reasonably supposed to have been criminally concerned in the events
Assault
Break, Enter and Steal
Manslaughter
Murder
Sexual Assault and Aggravated Sexual Assault
Summing Up Format
Return of the Jury
Bail

 

Update 10, March 2005

Update 10 amends the Bench Book to incorporate recent case law and legislative developments.

The following chapters are new:

Cross examination of the accused
Relations Between Trial Judge and Prosecuting and Defence Counsel

The following chapters have been revised:

Advice to Unrepresented Accused
Child Witness/Accused
The Jury
Admissions to Police
Complaint in Sexual Cases
Consciousness of Guilt
Election of Accused Not to Offer Explanation
Identification Evidence — Visual
Indecent Assault
Larceny
Murder
Sexual Assault and Aggravated Sexual Assault
Bail

 

Update 9, October 2004

Update 9 amends the Bench Book to incorporate recent case law and legislative developments. New commentary on “negative” identification evidence has been included at para [3-028]. New commentary on the giving of evidence by complainants from a place other than the courtroom in prescribed sexual offence proceedings has been inserted at para [5-1645]. Draft orders a court may make prior to referring matters to the Mental Health Review Tribunal have been included at para [4-335] as well as guidelines to the documentation required in the referral of court matters to the Mental Health Review Tribunal at para [4-340]. The following chapters have been revised:

Privilege Against Self-incrimination
Complaint in Sexual Cases
Complicity
Election by Crown not to Call Witness
Identification Evidence — Visual
Joint Trials
Onus and Standard of Proof
Possession
Pre-trial rulings
Unfitness
Manslaughter
Sexual Assault and Aggravated Sexual Assault
Supply of Prohibited Drug and Deemed Supply
Self-defence

 

Update 8, July 2004

Update 8 amends the Bench Book to bring it into line with recent case law. The directions and warnings in The Jury at [1-520] have been revised to accord with the judgment in R v Bilal Skaf, R v Mohammed Skaf [2004] NSWCCA 37. New commentary on Pre-trial rulings has been inserted at [3-730] and new commentary on Witness reasonably supposed to have criminally concerned in the events has been inserted at [4-350]–[4-370]. The commentary on Assault has been substantially revised at [5-000]–[5-050]. The commentary on Manslaughter has been revised at [5-1000] to reflect the principles in R v Lavender [2004] NSWCCA 120. The following chapters have also been revised.

Advice to Unrepresented Accused
Malice
Silence — Right to
Supply probibited drug and deemed supply
Alibi
Provocation
Listening Devices Legislation

 

Update 7, May 2004

Update 7 amends the Bench Book to bring it into line with recent case law. The following chapters have been revised:

Non-publication orders
The Jury
Alternative Verdicts and Alternative Counts
Consciousness of Guilt
Identification Evidence — Visual
Joint Trials
Onus and standard of proof
Unfitness
Sexual assault and Aggravated Sexual Assault
Summing Up Format
Bail

Minor amendments have also been made to the chapter on Return of the Jury.