Currency

Update 12, June 2018

Section 2Indigenous people

2.1 Statistical information has been updated. Information about the Youth Koori Court is added at 2.3.1. A new section is added at 2.3.5 to include information about Indigenous Estate Distribution Orders and the decisions Re Estate Wilson, Deceased (2017) 93 NSWLR 119 and Estate of Mark Edward Tighe [2018] NSWSC 163 which considered and applied Pt 4.4 of the Succession Act 2006 (NSW).

Section 3Ethnic or migrant backgrounds

Section 3 has been updated to include:

  • the Recommended National Standards for Working with Interpreters in Courts and Tribunals at 3.3.1.2. The Judicial Council on Cultural Diversity produced this resource in 2017 to establish recommended and optimal practices for working with interpreters in courts

  • new accreditation standards for NAATI have been added

Section 4Religious affiliations

Section 4 has been updated to include revisions to the following at 4.2.3.5:

  • reference to the Court Security Act 2005 regarding the removal of face coverings

  • the “Explanatory note on the judicial process and participation of Muslims” issued by the Australian National Imams Council

  • the Court of Appeal’s decision in Elzahed v State of NSW [2018] NSWCA 103, that a trial judge did not make an error in ruling that a witness could not give evidence with her face covered by a niqab as this would impede the judge’s ability to assess the witnesses’ reliability and credibility. Reference to this decision has been added at 4.4.3.

Reference to the “Explanatory note on the judicial process and participation of Muslims” has been added at 4.4.2 to clarify that an oath for a Muslim may be administered on the Holy Quran.

The reading list in Section 4 has been updated to include the Explanatory note and Judicial Officers’ Bulletin article about the Explanatory note at (2018) 30 JOB 18.

Section 5People with disabilities

Information on fetal alcohol spectrum disorders at 5.2.2.8 has been updated to refer to LCM v State of WA (2016) 262 A Crim R 1 in which the West Australian Court of Appeal considered the medical condition of foetal alcohol spectrum disorder (FASD) and how it could be relevant in sentencing proceedings. The court recognised that FASD is a mental impairment and as such engaged sentencing principles relating to an offender’s mental condition.

Section 6Children and young people

Section 6 has been updated to:

  • include information about the Youth Koori Court at 6.3.8.

  • amend the Appendix “Recommended script to use in hearings with children and cognitively impaired witnesses” in light of experience drawn from the pilot witness intermediary program.

Update 11, December 2017

Section 4 — People with a particular religious affiliation

Section 4 has been updated to include revisions to the following:

  • Statistics at 4.1 to reflect up-to-date census figures

  • Relevant practices at 4.2.3.5 has been amended to include a section on the new laws relating to face covering in NSW prescribed by ss 19A–19C of the Law Enforcement (Powers and Responsibilities) Act 2002

  • Appearance, behaviour and body language at 4.4.3 to include a section on “Disrespectful behaviour in court” which outlines provisions that now apply to assist the court in managing disrespectful behaviour in court, eg failing to stand for a judicial officer, disrupting the court or not showing respect for the judicial officer and the court.

Section 5 — People with disabilities

Section 5 has been updated to include revisions to the following:

  • Statistics at 5.1 to reflect up-to-date census figures

  • Further information or help at 5.5 and Further reading at 5.6.

Section 8 — Lesbians, gay men and bisexuals

Section 8 has been updated to include revisions to the following:

  • Statistics at 8.1 to reflect up-to-date census figures and to incorporate legislative changes. This includes reforms introduced in 2013 that provide protections for same sex couples by changes to the Sex Discrimination Act 1984. These provisions make it unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status under federal law.

  • Same sex relationships at 8.3.2 has been revised to include the latest legislative definitions made to the Marriage Act 1961 (Cth); the definition of a de facto relationship to include legislative provisions under the Health Insurance Act 1973 (Cth)

  • Commentary about the partial defence of provocation at 8.1 has been amended to reflect the current legislative position. The previous ability to rely on a defence of provocation in regards to a homosexual advance now provides that the conduct of the deceased does not constitute extreme provocation if the conduct was only a non-violent sexual advance to the accused.

  • Commentary at 8.1 on suicide attempts of LGBTIQ young people has been updated to include national statistics on suicidal ideation and self harm.

  • Commentary at 8.5.3 on the impact of a person’s lesbianism, homosexuality or bisexuality on any behaviour relevant to matters before the court has been updated to include information on intimate partner violence and the partial defence of provocation.

  • Commentary at 8.5.5 on victim impact statements has been updated to reflect the provisions of what factors are relevant in allowing statement to be read in court

  • Further information or help at 8.6 and Further reading at 8.7 has been updated.

Section 9 — Sex and gender diverse people

Section 9 has been updated to include revisions to the following:

  • Statistics at 9.1 to include more recent statistical information and studies on intersex status; the employment information for transgender people; information on victims of violence in the transgender community; education and schooling information; mental health issues and discrimination

  • Legal gender identity at 9.3 has been revised to include the provisions of the Births, Deaths and Marriage Registration Act 1995 (NSW) in regards to the requirements of registering a change of gender on a birth certificate. The commentary has been updated to include provisions of the Australian Government Guidelines on the Recognition of Sex and Gender

  • Commentary at 9.5.6 on victim impact statements has been updated to reflect the provisions of what factors are relevant in allowing a statement to be read in court

  • Further information or help at 9.6 has been updated.

Section 12 — Index and Tables

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 11.

Update 10, July 2016

Section 6 has been updated to include the following:

  • Expanded legal definition of a “child” at 6.1.1 to incorporate definitions of a “child” in criminal and civil statutes in NSW.

  • Competence to give evidence at 6.2.1 has been amended to include reference to The Queen v GW (2016) 90 ALJR 407 at [14] which held that the statutory presumption of competence to give evidence, contained in ss 12 and 13(6) of the Evidence Act 1995, is only displaced where the court is satisfied on the balance of probabilities of the contrary. Further, The Queen v GW (2016) 90 ALJR 407 at [46] held that the Evidence Act does not give primacy to sworn evidence; it is neutral in its treatment of the weight that may be accorded to evidence whether it is sworn or unsworn. Reference has been added to clarify that there is no requirement to direct the jury to take into account the differences between sworn and unsworn evidence in assessing the reliability of unsworn evidence: The Queen v GW (2016) 90 ALJR 407 at [56]. Reference to MK v R [2014] NSWCCA 274 at [69] is included in “Sworn evidence” which held that a question to the child: “Do you know why it’s important to tell the truth?” by itself was insufficient to ascertain the child complainant’s capacity to understand they had an obligation to give truthful evidence as required by s 13(3) Evidence Act.

  • Reference to the role of witness intermediaries in the Child Sexual Offence Evidence Pilot operating at the Downing Centre District Court and Newcastle District Court from 4 April 2016 has been added to 6.3.2 Oaths, affirmations and declarations. The pilot scheme applies to children who are complainants in indictable proceedings in relation to a prescribed sexual offence.

  • Text at 6.3.3.1 Video and/or sound recordings of previous representations has been amended to include reference to the Child Sexual Offence Evidence Pilot Scheme. This allows for evidence (including evidence in cross-examination and re-examination) of children under 16 who are complainants in indictable proceedings in relation to prescribed sexual offences to be pre-recorded at hearings in the absence of the jury (if any). Pre-recorded evidence may also be given for a child under 18 in prescribed sexual offences. Reference is made to District Court Criminal Practice Note 11 which specifies procedures to be followed at the Downing Centre District Court.

  • Text at 6.3.4 Language and communication has been amended to include reference to the Children’s Court of NSW quick reference guide, “Explaining legal terms to children: quick reference guide”, to assist in communication with children in a criminal jurisdiction.

  • A new section “Improper cross-examination” has been added at 6.3.5.1 to clarify the role of s 41 of the Evidence Act which imposes an obligation on the court to disallow certain questions in cross-examination. Reference is made to [1-340] of the Criminal Trial Courts Bench Book on improper cross-examination.

  • Contact information at 6.4 Further information or help has been updated.

  • Further reading at 6.5 has been substantially revised and updated.

  • Appendix has been added “Recommended script for use in special hearings with children or cognitively impaired witnesses”. This is adapted with permission from the Australasian Institute of Judicial Administration, Bench Book for children giving evidence in Australian courts, 2015.

Update 9, June 2015

[3] People from culturally and linguistically diverse backgrounds

Section 3 “People from culturally and linguistically diverse backgrounds” has been substantially revised to include the following:

  • Statistical information has been updated incorporating the latest data from the ABS at 3.1.

  • Information about using interpreters and translators in court has been updated at 3.3 and ff. Advice about briefing an interpreter prior to the commencement of proceedings has been included at 3.3.1.2.

  • Information about working with an interpreter at 3.3.1.6 has been revised to clarify that the role of the interpreter is to be impartial; to interpret both the style and manner of speech; that a literal translation is impossible to make; and that when using untrained interpreters, to be aware that the demeanour and language style of the witness may not be conveyed.

  • Further information and further reading at 3.4 incorporates reference to the Judicial Council on Cultural Diversity and recent papers given by members of this Council.

[5] People with disabilities

Section 5 “People with disabilities” has been updated to include the following:

  • Statistical information about people with disabilities including types of disability, level of disability, education levels and their interactions with the criminal justice system incorporating the latest data from the ABS at 5.1.

  • Information about Acquired Brain Injury (ABI) has been included at 5.2.2.5. Advice about potential barriers for people with ABI to participating in court has been included at 5.2.4.

  • General information about psychiatric disabilities at 5.2.2.6 has been revised and updated and new information about hoarding disorders included.

  • Information about Fetal Alcohol Spectrum disorder (FASD) has been included at 5.2.2.7. Advice about potential barriers for people with FASD to participating in court has been included at 5.2.4.

  • General information about HIV/AIDS has been included at 5.2.2.7. Advice about potential barriers for people with HIV/AIDS to particulating in court proceedings has been included at 5.4.5, 5.4.6 and 5.4.7.

  • Further information and further reading at 5.5 have been updated.

Index

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 9.

Update 8, June 2014

[2] Aboriginal people

Update 8 to the Equality before the Law Bench Book includes a revised and renamed Chapter 2 “Aboriginal people”. Chapter 2 is now called “Aboriginal people” to reflect the fact that the original people of NSW are Aboriginal.

The chapter includes the most recent statistical data derived from the Australian Bureau of Statistics, the NSW Bureau of Crime Statistics and Research, and the COAG Reform Council’s recent report to the Australian Government, “Indigenous Reform 2012–13: Five years of performance”. Information about language and communication has been reviewed and updated in light of Dr Diana Eades’ recently published text Aboriginal ways of using English, Aboriginal Studies Press, 2013.

The Appendix outlining the Fernando principles has been updated to take into account the High Court’s decisions in 2013 in Bugmy v The Queen (2013) 87 ALJR 1022 and Munda v Western Australia (2013) 87 ALJR 1035. The High Court confirmed that individualised justice does not require a different approach to sentencing Aboriginal offenders. However, many of the Fernando principles recognise that where an offender’s abuse of alcohol reflects the environment in which he or she was raised, this should be taken into account as a mitigating factor. The High Court in Bugmy also recognised that the effects of profound deprivation do not diminish over time and should be given full weight in a sentencing decision.

Update 7, June 2013

Sections 3 and 7 updated.

Update 6, April 2011

Sections 4, 5, 8, 9, 10 updated.

Update 5, November 2009

Sections 1, 2, 3, 6 updated.

Update 4, November 2007

Section 2 updated.

Update 3, June 2007

Section 3 updated.

Update 2, April 2007

Sections 8 and 9 updated.

Update 1, June 2006

Original compilation.