Currency

Update 18, July 2021

Section 1Equality before the law

J Elek and A Miller, The evolving science on implicit bias, State Justice Institute and the National Centre for State Courts, Virginia, USA, March 2021 and Equality Australia have been added at 1.6 — Further reading.

Section 2Aboriginal people

A new report by V Edwige and P Gray, "Significance of culture to wellbeing, healing and rehabilitation” published in 2021 via the Bugmy Bar Book has been added at 2.5 — “Further Reading”.

Section 6Children and young people

This chapter has been extensively revised and updated with cases and legislation, new and updated statistics and new sections as follows:

At 6.2.1 Competence to give evidence, the case of Gray v R [2020] NSWCCA 240 has been added in relation to the question of competence and the proper consideration of s 13 of the Evidence Act 1995. At 6.2.2 Criminal responsibility, RP v The Queen (2016) 259 CLR 641 and BC v R [2019] NSWCCA 111 have been added. These cases discuss that the presumption of doli incapax cannot be rebutted merely as an inference from the doing of the acts constituting the offence, although the “circumstances of the offending” may be capable of rebutting the presumption without evidence of the accused’s contemporaneous character or maturity. A discussion of Victim Impact Statements (VIS) has been added to Requirement to obtain the views of children and young people at 6.2.4, including the case of AC v R [2016] NSWCCA 107, where the court was entitled to discount a letter purporting to be a VIS, where the under-age victim’s letter asked for her return to an abusive relationship and sexual offending. This could not sensibly be understood as evidencing either maturity, forgiveness, or a conclusion that the injury, emotional harm, loss or damage caused by the applicant’s offence was not substantial.

A new section on Child care and protection has been added at 6.3. Statistics regarding children in NSW receiving child protection services appear at 6.3.1 and a discussion of Out of home care (OOHC) appears at 6.3.2.

Aboriginal and Torres Strait Islander children are over-represented in OOHC in NSW, with the number of children entering care increasing since 2015-16. At 6.3.3, a discussion of the Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP) includes the operational framework adopted by the Department of Communities and Justice, the Aboriginal Case Management Policy. This policy is stated to provide a framework for Aboriginal-led and culturally embedded case management practice to safeguard the best interests of Aboriginal children and young people. The purpose of the ATSICPP, enshrined in Ch 2, Pt 2 of the Children and Young Persons (Care and Protection) Act 1998, and s 35 of the Adoption Act 2000, is to ensure Aboriginal and Torres Strait Islander children remain connected to their family, community, culture, and country. The fundamental purpose of the ATSICPP is to enhance and preserve Aboriginal children’s sense of their Aboriginal identity and ensure an Aboriginal child’s right to be raised in their own culture. The ATSICPP also recognises the importance and value of family, extended family, kinship networks, culture and community, in raising Aboriginal children and the role of Aboriginal decision-making. The importance of ensuring that the ATSICPP is adhered to is exemplified in the link between the over-incarceration of Aboriginal people and involvement with the OOHC system, which is discussed at 6.3.3.1 “Cross over kids”. The Family is Culture review report ventilated concerns about the late identification of Aboriginal children and the de-identification of children resulting in the ATSICPP not being applied to them. At 6.3.3.2 Issues associated with the identification/de-identification of Aboriginal Children, the cases of Fischer v Thompson (Anonymised) [2019] NSWSC 773 and Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 are discussed.

At 6.4.8 Sentencing, other decisions and judgment or decision writing, CO v DPP [2020] NSWSC 1123 has been added. In that case, it was held that a failure to obtain a background report in accordance with s 25 Children (Criminal Proceedings) Act 1987 renders the sentence invalid.

A new Appendix B — Interviewing principles to guide communication with vulnerable witnesses, including children and young people, based on the work of Professor Martine Powell, has been added.

Update 17, September 2020

Section 7 — Women

This chapter has been rewritten, with updated cases and legislation, new and updated statistics and new sections on socio-economic factors and gender disadvantage, sexual harassment, intersectional discrimination and violence against women. Statistics reported show that women experience inequality and disadvantage which arise because of their sex and gender characteristics. The revised chapter focuses on the issues that may arise for women in their interactions with the justice system to assist judicial understanding of and sensitivity to the requirements of women.

Cumulative economic disadvantage leads to poverty and homelessness in retirement. This is often a result of women’s cumulative experiences of economic disadvantage over their lifespan. Included in the new section at 7.2 Socio-economic factors and gender disadvantage is commentary and statistics on the gender pay gap as it relates to both wages and superannuation, as well as the impact of caring, domestic work and the “mental load”.

Australia now lags behind other countries in preventing and responding to sexual harassment. Thirty-five years from the enactment of the Sexual Discrimination Act 1984, in a landmark report, Respect@work, the Sex Discrimination Commissioner reports that the rate of change has been disappointingly slow. The new section at 7.3 Sexual harassment includes the findings of this report as well as findings relating to sexual harassment in the Australian legal profession.

The Australian Human Rights Commission has defined intersectional discrimination as “discrimination on the basis of a combination of attributes”, such as gender, race, disability, age, sexual orientation, gender identity, intersex status or socio-economic status. New section 7.4 Intersectional discrimination provides information on women with disabilities, older women, women from migrant and refugee backgrounds, LGBTIQA+ people, and First Nations women.

The new section 7.5 Violence against women covers cultural and social attitudes to domestic violence, coercive control, technology-facilitated abuse, sexual assault and female genital mutilation/cutting.

The chapter was developed by Judicial Commission staff. An expert committee reviewed and provided feedback. The Committee comprised:

  • Ms Philippa Davis, Principal Solicitor, Women’s Legal Service NSW

  • Ms Larissa Andelman, President, Women Lawyers’ Association for NSW Inc; Ms Renée Bianchi, Vice President, Women Lawyers’ Association for NSW Inc; Ms Holly Lam, Immediate Past President, and the Executive of the Women Lawyers’ Association for NSW Inc.

  • Professor Simon Rice, OAM, Kim Santow Chair of Law and Social Justice, University of Sydney

Update 16, April 2020

Section 1 Equality before the law

This section has been updated at 1.2The diversity of the NSW population to include statistics from the report by the National Centre for Economic and Social Modelling, which shows that more than 888,000 people, or 13% of the NSW population live in poverty, with children, single women, Aboriginal and Torres Strait Islanders and those with a disability the most likely to be living in economic disadvantage. This report provides mapping of NSW to identify the areas with the lowest and highest rates of economic disadvantage.

Section 2 — Aboriginal people

The case of Love v Commonwealth of Australia [2020] HCA 3, has been added at 2.2.1 — Aboriginal people, Torres Strait Islander people, Kooris, Murris and other groups, where the High Court by majority held confirmed that an Aboriginal Australian, despite their place of birth, cannot be considered an alien under s 51(xix) of the Constitution.

Northern Territory v Griffiths [2019] HCA 7 at [230] has been added at 2.2.2Intergenerational/ transgenerational trauma, where loss of connection to land is acknowledged as permanent and intergenerational.

Northern Territory v Griffiths has also been added at 2.2.3 — Cultural differences, regarding the description of the lay and anthropological evidence of connection to the land and the effects, under Aboriginal laws and customs, when country is harmed.

The case of White v Williams (2019) 99 NSWLR 539, involving an urgent application for a declaration that a person could make burial arrangements for an Aboriginal deceased who had died intestate, where there were competing claims about where he should be buried, has been added at 2.3.5 — Aboriginal burial rights and estate distribution orders.

The Australian Institute of Health and Welfare report, Children living in households with members of the Stolen Generations, 2019 and S Duncombe, “The trauma-informed approach of the NSW Youth Koori Court” (2020) 32 JOB 21, have been added to 2.5 — Further reading.

Section 11 — Older people

Further information regarding Legal Aid Policy Bulletin 2019/12, where the Legal Aid NSW Board approved changes to eligibility policies that clarify that legal aid is available to people who are experiencing, or are at risk of, elder abuse has been added at 11.4.1 — Access to justice.

The case of Spink v Flourentzou [2019] NSWSC 256 has been added at 11.2.3 — Succession/capacity/financial abuse as an example of a court-ordered equitable remedy for an older person where there is a failure of joint endeavour in the acquisition or improvement of property, in circumstances of unconscionability and of no attributable blame.

Commentary at 11.2 and 11.4.1 has been updated to reflect assent being proclaimed to the Ageing and Disability Commissioner Act 2019.

Details of the Age Care Quality and Safety Commission have been added to 11.6 — Further information or help.

A report by R Kaspiew et al, Elder Abuse National Research – Strengthening the Evidence Base: Research definition background paper has been added under “Reports” at 11.7 — Further reading.

An article by J Anderson on “Vulnerability of elders to physical harm and death: criminal law responses” has been added under “Articles” at 11.7 — Further reading. This article focusses on the intersection of elder abuse with the criminal law relating to physical harm and unlawful death in NSW.

Update 15, December 2019

Section 2Aboriginal people

This chapter has been significantly revised, with updated cases, statistics and new sections on intergenerational trauma, the national framework to improve accessibility to Australian courts for Aboriginal and Torres Strait islander women and migrant and refugee women and Justice reinvestment.

The legacy of historic dispossession and dislocation from country, culture and family, increasingly acknowledged and characterised in medico-legal literature and governmental policy as intergenerational trauma, is set out at 2.2.2. This section also discusses the Uluru Statement from the Heart, which has called for a constitutionally enshrined First Nations voice to federal Parliament and a Makarrata Commission to oversee agreement-making between First Nations people with federal and State Governments and to provide a forum for truth telling about history. The discussion on cultural differences has also been updated.

A discussion on the National Framework to improve accessibility to Australian courts for Aboriginal and Torres Strait islander women and migrant and refugee women has been added at 2.2.4 and a discussion on Justice reinvestment and the OCHRE plan at 2.2.5.

The case of Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186, in particular at [21]–[27], which held that great care must be exercised in making demeanour findings where a witness is from a different cultural or ethnic background to that with which the trial judge is familiar has been added at 2.3.3.3.

The case of Re Estate Jerrard, Deceased (2018) 97 NSWLR 1106, which held that the Indigenous concept of “family” is important, if not decisive, in determining “the laws, customs, traditions and practices” of an Indigenous community, has been added at 2.3.5 — Indigenous estate distribution orders.

At 2.3.9 — The Fernando principles, the recent decision R v Irwin [2019] NSWCCA 113 has been added, where the court held that it is not necessary to require a causal link between a background of social deprivation and abuse and the offending behaviour as a necessary condition to permit mitigation of sentence: at [116].

Update 14, September 2019

Section 1 Equality before the law

This section has been revised and updated. Further, new commentary at 1.4.1 Unconscious bias has been added. This refers to research into how mental short cuts, known as heuristics, affect the way decisions are made. The demeanour and appearance of a witness has always been a part of the decision making process by judicial officers, however this tendency has been questioned as supporting unconscious bias.

At 1.6 Further Reading a list of articles on unconscious bias have been added.

Section 10 — Self represented litigants

This chapter has been significantly revised and updated with additional cases and articles regarding self-represented litigants.

The text at 10.3.1 Before the court appearance has been updated to include Nobarani v Mariconte (2018) 92 ALJR 806. The trial judge’s failure to make directions for the taking of any steps, or filing or service of any documents by the self-represented appellant meant the appellant was denied the opportunity to cross-examine a significant witness; locate another witness; and call an expert witness and led to the appellant being denied procedural fairness. R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834 has been added. Representation of the accused by competent counsel is not only a requirement of a fair trial at law, but is also essential to efficiency: at [40].

The text at 10.3.2 At the start of court proceedings has been revised to include Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367. The court observed at [56] that the duty to ensure a fair trial or proceeding to an unrepresented criminal defendant is greater than that owed to a civil litigant.

The text at 10.3.3 The trial judge’s role has been revised to include Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367. A trial judge may be required to explain the consequences of a self-represented party applying for an adjournment or that the judge recuse him or herself in civil proceedings, in terms of costs and potential future proceedings. Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) VR has been added in which procedural fairness was not afforded due to the trial judge’s failure to warn the unrepresented parties that their failure to give evidence could give rise to a Jones v Dunkel inference.

In 10.3.4.3 Final submissions reference has been included to the practice that the Crown does not give a closing address in criminal cases where an accused is unrepresented: MS v R [2017] NSWCCA 252 at [68].

The section on Further information and help at 10.5 has been revised and updated and new articles added to 10.6 Further reading.

Section 12 — Index and Tables

The index, table of cases and table of statutes have been updated to include the changes in update 14.

Equality before the law Bench Book wins international award

The Association for Continuing Legal Education (ACLEA) has awarded the Judicial Commission one of only 10 annual awards granted to competitors representing more than 300 organisations.

An Award for Outstanding Achievement was given to the Commission for the Equality Before the Law Bench Book in the Public Interest category.

ACLEA members are professionals in the fields of continuing legal education and legal publishing. Its annual ACLEA’s Best Awards are highly competitive and winning projects represent the highest level of achievement for the staff and volunteers involved.

Update 13, June 2019

Section 11Older people

A new section on Older people is published with this update. Older people are an extremely diverse group, as this term often refers to people up to 25 years apart in age. There can be a vast difference between those at 65 and those at 85.

The chapter is designed to assist judicial officers with any issues that may arise in the courtroom when older people appear as plaintiffs, defendants or witnesses.

Specifically the chapter provides information and advice about:

  • recent statistical data on older people in NSW, including population, employment, health, income, care and assistance, grandparents, digital confidence, geographic isolation, mobility and cultural and linguistic background at 11.1 and ff

  • elder abuse at 11.2: Elder abuse is defined and discussed, including abuse and neglect in residential care, family and intergenerational violence, and financial and capacity abuse

  • older persons and crime at 11.3: as victims and witnesses of crime as well as perpetrators of crime

  • potential barriers to accessing justice at 11.4 and ff

  • legal capacity and competence of older people at 11.5.1 and ff

  • best practice in communication with older people at 11.5.2 and ff

  • timing of proceedings, breaks and adjournments at 11.5.7

  • detailed list and contact details of organisations and community agencies that can provide information or expertise about older people at 11.6

  • detailed further reading list at 11.7.

The chapter was developed by Commission staff and an expert committee reviewed and provided feedback. The Committee comprised:

  • Associate Professor Nola M Ries, Research Centre, Faculty of Law, University of Technology, Sydney

  • Dr Lise Barry, Macquarie Law School, Sydney

  • Adjunct Associate Professor Sue Fields, School of Law, Western Sydney University, Sydney

  • Mr Richard McCullagh, Solicitor, Patrick McHugh & Co Pty Ltd

  • Ms Jennifer Smythe, Assistant Principal Solicitor, Seniors Rights Service, Sydney

Section 9Gender diverse people and people born with diverse sex characteristics

This section has been revised and updated by Morgan Carpenter, co-executive director of Intersex Human Rights Australia, and a graduate and PhD candidate in bioethics at Sydney Health Ethics in the Faculty of Medicine and Health, University of Sydney, Australia. It has been renamed to reflect the fact that there is a difference between gender diversity and people born with diverse sex characteristics. It has also been updated to include the case of Tien-Lao and Tien-Lao [2018] FamCA 953, where the Family Court stated at [29]: “…it is now accepted that gender is not a binary construct: either male or female … The concept of gender is fluid and contemporary understanding of the fluidity means that gender differences are now better regarded as lying along a continuum, rather than presenting a polarising election between two stark alternatives.”

9.3 has been updated to include NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490, where the High Court affirmed that the NSW BDM has the power to register someone’s sex as “non-specific” as the Act recognises that a person may be other than male or female.

Four additional articles have been added at 9.8.

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 [6.4.8].

  • 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 6.4.3.1 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 6.4.4 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 6.4.5.1 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 6.5 Further information or help has been updated.

  • Further reading at 6.6 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.