Supreme and District Court Benchbook

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Chapters

Foreword By Chief Justice And Chief Judge
Contents
Table Of Cases
Introduction
During The Trial
Directions Before Summing-Up
Summing-Up
Directions On Sexual Offences
Criminal Responsibility
Commonwealth Offences
Offences

Update Notes

Update Notes - February 2016
Update Notes - February 2015
Update Notes - May 2014
Update Notes - May 2013
Update Notes - June 2012
Update Notes - February 2012
Update Notes - March 2011
Update Notes - November 2010
Update Notes - June 2010
Update Notes - February 2010
Update Notes - February 2009
Update Notes - November 2008
Update Notes - September 2008
Update Notes - April 2008
Update Notes - March 2008

Foreword By Chief Justice And Chief Judge

foreword by chief justice and chief judge [DOCX 948 KB]

Contents

1 Contents [DOCX 28 KB]

Table Of Cases

2 Table of Cases [DOCX 67 KB]

Introduction

3 Introduction [DOCX 25 KB]

During The Trial

4 Trial Procedure [DOCX 41 KB]

5 Unrepresented Defendant [DOCX 24 KB]

6 Fitness for Trial [DOCX 24 KB]

7 Protected Witnesses s21M [DOCX 21 KB]

8 Protected Witnesses s5 [DOCX 20 KB]

9 Evidence of Affected Children [DOCX 25 KB]

10 Child Witnesses 93A statements [DOCX 22 KB]

11 Special Witnesses [DOCX 23 KB]

12 Competency of Witnesses Including Children [DOCX 24 KB]

13 Hostile Witnesses [DOCX 24 KB]

Directions Before Summing-Up

14 Directed Verdict [DOC 23 KB]

15 Jury Questions [DOC 22 KB]

16 Evidence Admitted Against One Defendant Only [DOC 22 KB]

17 Dismissal During the Trial of Some Charges Against Single Defendant [DOC 21 KB]

18 Discharge of Defence Counsel During Trial [DOC 21 KB]

19 Disposition of Charge Against Co-Defendant [DOC 24 KB]

20 Tape Recordings, Transcripts and Exhibits [DOCX 23 KB]

21 Interpreters and Translators [DOC 42 KB]

22 Retrial Warnings [DOC 21 KB]

Summing-Up

24 General [DOCX 36 KB]

25 Views and Demonstrations [DOC 36 KB]

26 Evidence of Defendant in Respect of Co-Defendant [DOC 27 KB]

27 Defendant Giving Evidence [DOC 24 KB]

28A Defendant Not Giving Evidence, where no adverse inference [DOC 20 KB]

28B Defendant Not Giving Evidence, where an adverse inference may follow from that [DOC 36 KB]

29 Defendant's Right to Silence [DOC 22 KB]

30 Co-offender Who Has Pleaded Guilty [DOC 21 KB]

31 The Rule in Jones v Dunkel [DOC 40 KB]

32 The Rule in Browne v Dunn [DOC 39 KB]

33 Alternative Charges [DOC 28 KB]

34 Separate Consideration of Charges - Single Defendant [DOCX 23 KB]

35 Separate Consideration of Charges - Multiple Defendants Confronting Multiple Charges [DOC 20 KB]

36 Out of Court Confessional Statements [DOC 52 KB]

36A Hearsay Confessions by Another Exculpating the Defendant [DOC 18 KB]

37 Accomplices [DOC 28 KB]

38 Lies Told by the Defendant (Consciousness of guilt) [DOC 36 KB]

39 Lies Told by the Defendant (Going only to credit) [DOC 26 KB]

40 Alibi [DOC 27 KB]

41 Good Character [DOC 31 KB]

42 Bad Character [DOC 49 KB]

43A Cross-Examination as to Complainant's Motive to Lie [DOC 20 KB]

43B Absence of Complainant's Motive to Lie [DOC 20 KB]

44 Prior Inconsistent Statements Evidence Act 1977 - ss 17, 18, 19, 101 and 102 [DOC 28 KB]

45 Privilege Against Self-Incrimination [DOC 28 KB]

46 Circumstantial Evidence [DOC 25 KB]

47 Motive [DOC 25 KB]

48 Flight and Other Post Offence Conduct as Demonstrating Consciousness of Guilt [DOC 32 KB]

49 Identification [DOCX 33 KB]

50 Similar Fact Evidence [DOCX 24 KB]

51 Jury Unanimity - Specific Issues [DOC 39 KB]

52 Jury Failure to Agree [DOC 25 KB]

52A Majority Verdict [DOCX 28 KB]

53 DNA [DOC 34 KB]

54 Fingerprints [DOC 21 KB]

55 Expert Witnesses [DOC 20 KB]

56 Intention [DOC 27 KB]

57 Reasonable Doubt [DOC 22 KB]

58 Caution in Using Hearsay - s 93C(2) Evidence Act 1977 [DOC 23 KB]

59 Corporate Defendant [DOC 20 KB]

60 Witnesses Whose Evidence May Require a Special Warning [DOC 39 KB]

61 Closed Court - Exceptions to the General Rule of Openness [DOC 571 KB]

61A Defences in Relation to Sexual Offences Which Relate to a Specific Age or Person with Impairment of the Mind [DOC 28 KB]

61B Direction Where a Defence is not Raised by Counsel but Raised on the Evidence [DOC 25 KB]

Directions On Sexual Offences

63 Distressed Condition [DOCX 20 KB]

64 Preliminary Complaint [DOC 26 KB]

65 Longman Direction [DOCX 22 KB]

66 Evidence of Other Sexual (or Violent) Acts or Other Discreditable Conduct [DOCX 33 KB]

Criminal Responsibility

68 Attempts s4 [DOC 30 KB]

69 Conspiracy (other than under the Criminal Code (Cth)) [DOC 41 KB]

70 Evidence in Conspiracy Cases [DOC 29 KB]

71 Parties to an Offence - ss 7, 8 [DOC 96 KB]

72 Accessory After the Fact [DOC 27 KB]

73 Claim of Right s22(2) [DOC 26 KB]

74 Unwilled Acts (Automatism) s23(1)(a) [DOC 34 KB]

75 Accidents s23(1)(b) [DOC 43 KB]

76 Mistake of Fact s24 [DOC 29 KB]

76A Mistake of Fact in Sexual Offences [DOC 34 KB]

77 Extraordinary Emergency s25 [DOC 20 KB]

78 Insanity ss 26 27(1) (2) 28(1) (2) [DOC 37 KB]

79A Unintentional Intoxication s28 [DOC 26 KB]

79B Intentional Intoxication s28 [DOC 32 KB]

80 Capacity s29 [DOC 21 KB]

81 Compulsion 31(1)(c) [DOC 22 KB]

82 Compulsion 31(1)(d) [DOC 22 KB]

83 Defence of Dwelling House s267 [DOC 31 KB]

83A Defence of Movable Property [DOC 28 KB]

83B Domestic Discipline s280 [DOC 28 KB]

84 Provocation ss 268, 269 [DOCX 23 KB]

84A Prevention of Repetition of Insult s270 [DOC 32 KB]

85 Criminal Negligence s289 [DOC 36 KB]

86 Self Defence s271(1) [DOC 29 KB]

86A Self Defence s271(2) Self-Defense against unprovoked assault when there is a death or GBH [DOC 33 KB]

86B Self defence s272 Self-Defense against provoked assault when there is a death or GBH [DOC 37 KB]

87 Provocation s304 (for offences pre 4 April 2011) [DOC 56 KB]

87A Provocation s304 (for offences post 4 April 2011) [DOC 69 KB]

87B Killing for Preservation in an Abusive Domestic Relationship s304B [DOC 40 KB]

88 Diminished Responsibility s304 [DOC 37 KB]

Commonwealth Offences

89 Proof of Mental and Physical Elements [DOC 53 KB]

Offences

90A Acts Intended to Cause Grievous Bodily Harm - s317 [DOCX 20 KB]

91 Administering a Stupefying Drug [DOC 27 KB]

91A Administering Poison with Intent to Harm s322 [DOC 26 KB]

92 Arson [DOC 28 KB]

92A Endangering Particular Property by Fire s462 [DOC 24 KB]

93A Assault [DOCX 20 KB]

93B Assault Occasioning Bodily Harm [DOC 19 KB]

94 Assault on Police Officer in Execution of his Duty s340(1)(b) [DOC 23 KB]

95 Attempt to Pervert the Course of Justice s140 [DOCX 21 KB]

96 Bomb Hoaxes s321A(1) [DOC 25 KB]

96A Bomb Hoaxes s321A(2) [DOC 25 KB]

97 Burglary s419 [DOC 31 KB]

98 Carnal Knowledge s215 [DOC 25 KB]

98A.1 Involving Child in Making Child Exploitation Material [DOC 30 KB]

98A.2 Making Child Exploitation Material [DOC 31 KB]

98A.3 Distributing Child Exploitation Material [DOC 31 KB]

98A.4 Posessing Child Exploitation Material [DOC 34 KB]

98AA Carnal Knowledge of a Person with an Impairment of the Mind s216 [DOC 34 KB]

98B Child Abduction [DOC 32 KB]

98C Child Stealing [DOC 40 KB]

98D Child Taking [DOC 32 KB]

98E Cruelty to Children Under 16 s364 [DOC 35 KB]

99 Circumstances of Aggravation (Robbery, Assault, Burglary) [DOC 28 KB]

100 Circumstances of Aggravation in Sexual Offences [DOC 26 KB]

101 Conspiracy [DOC 23 KB]

101A Conspiracy - Commonwealth Criminal Code s11 [DOC 44 KB]

102 Corruption of a Witness s127 [DOC 31 KB]

102A Damaging Evidence with Intent s129 [DOCX 21 KB]

103 Dangerous Operation of a Motor Vehicle [DOC 56 KB]

104 Defrauding the Commonwealth s29A - Crimes Act [DOC 24 KB]

104A Deprivation of Liberty [DOC 30 KB]

105 Drugs - Commonwealth Offences Under s233B of the Customs Act 1901 Before the Application of the Criminal Code Act 1995 [DOC 59 KB]

105A Drugs - Commonwealth Offences Under s233B of the Customs Act 1901 After the Operation of Ch2 of the Criminal Code Act 1995 (Cth) [DOC 37 KB]

105B Drugs - Commonwealth Drug Offences Under the Criminal Code (Cth) [DOCX 33 KB]

106 Drugs Possession - Drugs Misuse Act 1986 [DOC 24 KB]

107 Trafficking in a Dangerous Drug [DOCX 20 KB]

108 Escape from Lawful Custody [DOC 28 KB]

109 Extortion s415(1) (Before 1 December 2008) [DOC 40 KB]

109A Extortion s415(1) (From 1 December 2008) [DOC 28 KB]

110 False Statement Under Oath s193 [DOC 30 KB]

111 Forgery s488(1)(a) [DOC 30 KB]

112 Fraud [DOCX 21 KB]

113 Going Armed in Public [DOC 36 KB]

114 Grievous Bodily Harm [DOCX 22 KB]

114A Grooming Children Under 16 s218B [DOCX 23 KB]

115 Imposition [DOC 26 KB]

116 Improper Interference with a Corpse s236(b) [DOC 26 KB]

117 Incest s222 [DOC 30 KB]

118 Indecent (Sexual) Assault s352 [DOC 30 KB]

119 Indecent Dealing - Indecent Dealing with a Child Under 16 s210(1)(a) [DOC 34 KB]

119A Indecent Dealing - Indecent Dealing with a Person with an Impairment of the Mind s216 [DOC 38 KB]

120 Indecent Dealing - Unlawfully Procuring a Child Under 16 to Commit an Indecent Act s210(1)(b) [DOC 30 KB]

121 Indecent Dealing - Permitting Indecent Dealing s210(1)(c) [DOC 31 KB]

122 Indecent Dealing - Wilfully and Unlawfully Exposing a Child Under 16 to an Indecent Act s 210(1)(d) [DOC 26 KB]

123 Indecent Dealing - Exposing a Child Under 16 to an Indecent Object etc s210(1)(e) [DOC 29 KB]

124 Indecent Dealing - Taking an Indecent Photo etc of a Child Under 16 s210(1)(f) [DOC 29 KB]

124A Kidnapping s354 [DOC 29 KB]

124B Kidnapping for Ransom [DOC 33 KB]

125 Maintaining a Sexual Relationship with a Child s229B (Offences between 3 July 1989 and 1 July 1997) [DOC 41 KB]

126 Maintaining a Sexual Relationship with a Child s229B (Offences between 1 July 1997 and 1 May 2003) [DOC 39 KB]

127 Maintaining a Sexual Relationship with a Child s229B (After 1 May 2003) [DOC 32 KB]

128 Official Corruption s87(1)(a) [DOC 27 KB]

128A Official Corruption s87(1)(b) [DOC 26 KB]

129 Perjury [DOC 28 KB]

129A People Smuggling [DOC 69 KB]

130 Possesion of a Child Abuse Computer Game [DOC 27 KB]

131 Possession of Housebreaking Implements s425(1)(c) [DOC 23 KB]

131A.1 Observations or Recordings in Breach of Privacy s227A(1) [DOC 29 KB]

131A.2 Observations or Recordings in Breach of Privacy s227A(2) [DOC 27 KB]

131A.3 Distributing Prohibited Visual Recordings s227B [DOC 29 KB]

132 Procuring Prostitution [DOC 29 KB]

133 Rape s347 (Now Repealed) (For Offences Occuring Prior to 27 October 2000) [DOC 31 KB]

133A Rape s347 (Offences Occuring After 27 October 2000) [DOC 32 KB]

134 Receiving s433 [DOC 36 KB]

135 Receiving s433 (from 1 December 2008) [DOC 30 KB]

136 Recent Possession [DOC 24 KB]

137 Riot and Unlawful Assembly [DOC 28 KB]

137A Riot s61 (Offences After 1 December 2008) [DOC 20 KB]

138 Robbery s409 and s411 [DOC 27 KB]

138A Secret Commissions s442B, s442M [DOC 56 KB]

138B Serious Animal Cruelty s242 [DOCX 19 KB]

139 Stalking (Offences Alleged to have Occured Between 23 November 1993 and 30 April 1999) [DOC 30 KB]

140 Stalking (Offences Alleged to have Occured after 30 April 1999) [DOCX 22 KB]

141 Stealing [DOC 23 KB]

142 Threatening Violence s75(1) or (2) [DOC 23 KB]

142A Threats s359 [DOC 23 KB]

143 Torture s320A [DOC 32 KB]

144 Unlawful Killing - Murder s302(1)(a) [DOC 44 KB]

145 Unlawful Killing - Murder s302(1)(b) [DOC 29 KB]

146 Unlawful Killing - Manslaughter s303 [DOC 32 KB]

147 Unlawful Killing - Attempted Murder s306(2) [DOC 35 KB]

147A Unlawful Striking Causing Death [DOCX 20 KB]

148 Unlawful Sodomy - of a Person Under 18 s208(1)(a) [DOC 29 KB]

149 Unlawful Sodomy - Permitting Sodomy by a Male Person Under 18 s208(b) [DOC 27 KB]

150 Unlawful Sodomy - of an Intellectually Impaired Person [DOC 31 KB]

151 Unlawful Use of a Motor Vehicle etc s408A(1)(a) [DOC 30 KB]

152 Unlawful Possession of a Motor Vehicle s408A(1)(b) [DOC 26 KB]

153 Unlawful Wounding s323 [DOC 22 KB]

154 Using the Internet to Procure Children Under 16 [DOCX 21 KB]

155 Uttering s488(1)(b) [DOC 29 KB]

156 Wilful Damage [DOC 29 KB]