The Criminal Trial Courts Bench Book is prepared for use by Supreme Court and District Court judges and it constitutes a major contribution by the Judicial Commission of New South Wales to the administration of justice of this State. The members of the Committee who produced the work, and who have kept it up to date, are to be congratulated.
The overriding responsibility of the trial judge in a criminal trial is to ensure a fair trial. To achieve that result, the summing-up to the jury must be tailored appropriately to the particular circumstances of each case. A summing-up to a trial jury is an exercise in communication between judge and jury, the principal object of which is to explain to the jury the legal principles relevant to the performance of their task and to relate those principles to the facts and circumstances of the particular case. For that reason, it is important for judges to employ easily understood, unambiguous and non-technical language. The authors of this Bench Book have striven to ensure that the directions they recommend are in accordance with this approach, even in circumstances where difficult concepts are involved.
There is a danger that publication of standard directions will convert a summing-up into a series of formulae which are not necessarily appropriate to the facts and circumstances of each particular case. For that reason, it is important to recognise that, subject to any appellate indications to the contrary, no particular form of words is required and an individual judge is free to depart from the suggested directions and to direct the jury as he or she thinks fit, provided that the directions are in accordance with the law.
On the other hand, the advantage of standard directions is that, properly used, they improve the efficiency of the administration of criminal justice and assist in eliminating error on the part of trial judges. The draft directions are intended to remind judges of what has to be said and to suggest a way in which it can be said. The directions are not intended to constitute an authoritative statement of the law, nor is it the case that the whole of each direction will be appropriate in each case. In all respects the directions ought be adapted to the circumstances of the individual case and the legal issues which have arisen.
Previous editions of the Bench Book have been available only to judges. The Judicial Commission has decided to make the Bench Book more generally available. It hopes this will further enhance the contribution of the Bench Book to the efficient administration of criminal justice by ensuring that the legal representatives of all parties are aware of what kind of direction is likely and are able to make submissions directed to adapting the standard directions for the particular circumstances of the case.
The Judicial Commission has always welcomed criticism and suggestions from judges about the contents of the Bench Book. Now that the Bench Book will be more widely available, the invitation to make suggestions and advance criticisms is extended to the broader legal community, with the hope that this will ensure the maintenance of a Bench Book of the highest quality and authority over the long term.
It is appropriate to reiterate that the Bench Book does not contain an authoritative statement of the law. Practitioners should not act on the basis that a failure to direct in accordance with the Bench Book is of itself indicative of legal error for appellate purposes. Authority for what ought have been in the contents of a direction in a particular case will need to be identified elsewhere.
The Honourable JJ Spigelman AC