Criminal Trial Courts Bench Book Update 78 published

Update 78 amends the Criminal Trial Courts Bench Book to incorporate recent case law. The following chapters have been revised:

Closed court, suppression and non-publication orders

• [1-358] Closed courts to add reference to GBB v R [2019] NSWCCA 296, AE v R [2010] NSWCCA 203 and R v JM (No 2) [2024] NSWSC 771 regarding closed courts and children in criminal proceedings.
• [1-359] Self-executing prohibition of publication provisions to add reference to Carrington v R [2021] NSWCCA 257 which held that self-executing statutory provisions prohibiting the publication of information do not depend on a court order, but should be noted in the judgment, reasons or orders.

Complicity

• [2-710] Suggested direction — accessory before the fact to add reference to Batak v R [2024] NSWCCA 66 regarding liability as an accessory before the fact being incompatible with liability for constructive murder under s 18(1)(a) Crimes Act 1900.
• [2-755] Notes to suggested direction — (a) joint criminal enterprise at [2-760] to add reference to Fan v R [2024] NSWCCA 114 regarding the doctrine of transferred malice applying in circumstances where a joint criminal enterprise or extended joint criminal enterprise is alleged and the accused did not perform the physical acts constituting the foundational offence.
• [2-770] Suggested direction — application of joint criminal enterprise to constructive murder and [2-780] Notes to the direction to add reference to Batak v R [2024] NSWCCA 66 and Coskun v R [2024] NSWCCA 67 regarding the principle there is no generic requirement that a participant in a joint criminal enterprise (to commit the foundational offence) foresee the act or omission causing death. The direction has been amended to remove the “third element” of constructive murder referred to in R v Sharah (1992) 30 NSWLR 292. The limited assistance provided by Mitchell v The King [2023] HCA 5 in understanding NSW common law or construction of s 18(1)(a) Crimes Act 1900 is also noted.

Consciousness of guilt

• [2-955] Lies to add reference to Dawson v R [2024] NSWCCA 98 regarding the impermissibility of the tribunal of fact using evidence as a consciousness of guilt where it has not been identified or relied upon as such by the Crown. The “Edwards conditions” for use of lies as implied admissions are also set out.

Complaint evidence

• [5-070] Delay in complaint and forensic disadvantage to the accused to add reference to Dawson v R [2024] NSWCCA 98, Brown v R [2022] NSWCCA 116 and Shanmugam v R [2021] NSWCCA 125 regarding the onus being on the accused to satisfy the court delay has caused a significant forensic disadvantage.

Sexual intercourse without consent — until 31 May 2022

• [5-800] Suggested direction — sexual intercourse without consent (s 61I) for offences committed before 1 January 2008 to update the direction regarding the third element (the accused knew the complainant did not consent) of the three elements which make up the s 61I Crimes Act 1900 offence.
• [5-810] Notes to the above direction to add reference to Tuuholoaki v R [2024] NSWCCA 135 and Lee v R [2023] NSWCCA 203 regarding jury directions and the elements of establishing recklessness as to whether a complainant consented to sexual intercourse.
• [5-820] Suggested direction — sexual intercourse without consent (s 61I) where alleged offence committed on or after 1 January 2008 and before 1 June 2022 to update the direction regarding possible factors relevant to consent in s 61HE(8)(a), (b) or (c) (rep) Crimes Act.
• [5-830] Notes to the above direction to add reference to Smee v R [2024] NSWCCA 121 and Pandamooz v R [2023] NSWCCA 221 regarding jury directions and the relevance of the complainant’s intoxication to the issue of consent.

Sexual intercourse without consent — from 1 June 2022

• [5-910] Suggested direction — basic offence — sexual intercourse without consent (s 61I) — offences from 1 June 2022 to update the direction regarding the third element (the accused knew the complainant did not consent) of the three elements which make up the s 61I Crimes Act 1900 offence.
• [5-920] Notes related to consent to add reference to Tuuholoaki v R [2024] NSWCCA 135 and Lee v R [2023] NSWCCA 203 regarding jury directions and the elements of establishing recklessness as to whether a complainant consented to sexual intercourse.

Appendix A: Table — NSW and Commonwealth sexual offence provisions

• A new Table — NSW and Commonwealth sexual offence provisions at [5-1300] provides information on NSW and Commonwealth sexual offence provisions including the time period the provision was in force, the maximum penalty for each offence, and the Standard Non-Parole Period (SNPP) (if applicable). The Table includes links to the relevant legislative provisions.

Murder

• [5-6320] Constructive (felony) murder to add reference to Coskun v R [2024] NSWCCA 67 regarding the principle that the defence of self-defence for constructive murder is not available where the act done is done for the purposes of both carrying out the foundational offence and from a genuine belief the act is necessary to defend oneself or another.