Section 165B — Evidence Act 1995 (NSW)

(1) This section applies in a criminal proceeding in which there is a jury.
(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.
(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.
(6) For the purposes of this section—
(a) delay includes delay between the alleged offence and its being reported, and
(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.
(7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following—
(a) the fact that any potential witnesses have died or are not able to be located,
(b) the fact that any potential evidence has been lost or is otherwise unavailable.

Related sections

• s 164 — Corroboration requirements abolished
• s 165 — Unreliable evidence
• s 165A — Warnings in relation to children’s evidence
• s 166 — Definition of request
• s 167 — Requests may be made about certain matters
• s 168 — Time limits for making certain requests

Research how courts apply s 165B

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