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4.10 - Prosecution Failure to Call or Question Witnesses

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Scope

  1. This topic addresses the directions which should be given where the prosecution fails to call a witness to give evidence at trial, or fails to ask a witness a material question during the trial.
  2. Similar issues are addressed in the following:
  3. The need for directions on these issues depends on:

    Failure to Call a Witness

    Obligation to Call Material Witnesses

  4. The prosecution alone bears the responsibility of deciding whether to call a person as a witness for the prosecution (Apostilides v R (1984) 154 CLR 563).
  5. The prosecution must call all witnesses necessary to unfold the narrative of events unless there is a good reason not to do so (Whitehorn v R (1983) 152 CLR 657; Dyers v R (2002) 210 CLR 285; Mahmood v Western Australia (2008) 232 CLR 397).
  6. As the prosecution seeks the truth, it must call evidence favourable and unfavourable to its case (R v Soma (2003) 212 CLR 299; R v Shaw (1991) 57 A Crim R 425; R v Glennon (No. 2) (2001) 7 VR 631).
  7. However, the prosecution does not need to call a witness if his or her evidence:
  8. Previously, one of the factors the prosecution could consider when deciding whether to call a witness was whether the interests of justice required that it be able to cross-examine that witness (see, e.g., Richardson v R (1974) 131 CLR 116). This was due to the restrictions the common law placed on the prosecution’s ability to cross-examine its own witnesses. As Evidence Act 2008 s38 now provides the prosecution with a greater opportunity to cross-examine its own witnesses, this is no longer a reasonable basis for refusing to call a witness (Santo v R [2009] NSWCCA 269; Kanaan v R [2006] NSWCCA 109; Kneebone v R (1999) 47 NSWLR 450 per Smart AJ).[1]

    Section 43 direction

  9. Where the prosecution fails to call or question a witness without providing a reasonable explanation, the defence may seek a direction under Jury Directions Act 2015 s43 (a ‘section 43 direction’).
  10. This direction informs the jury that it may conclude that the witness would not have assisted the prosecution’s case (Jury Directions Act 2015 s43).
  11. This direction is a statutory replacement for the common law rule in Jones v Dunkel (see Jones v Dunkel (1959) 101 CLR 298; Dyers v R (2002) 210 CLR 285; R v Le-Gallienne [2004] VSCA 223).

    When Should a Section 43 Direction be Given

    Prerequisites

  12. A section 43 direction may be given if:
    1. A witness was available who could have given relevant evidence;
    2. The prosecution could reasonably have been expected to call or question that witness to give evidence;
    3. The prosecution failed to call or question the witness;
    4. The prosecution provided no satisfactory explanation for that failure; and
    5. Counsel for the accused requests a direction or there are substantial and compelling reasons for giving the direction despite the absence of a request (Jury Directions Act 2015 ss12, 43; Police v Kyriacou (2009) 103 SASR 243).

    Discuss Issue With Counsel

  13. Where the defence seeks a section 43 direction, the judge should discuss the issue with the prosecution before charging the jury. This will allow the prosecution to make submissions on why it was not reasonably expected to call or question the witness, or why there is a satisfactory explanation for not calling or questioning the witness (see Jury Directions Act 2015 s43; R v OGD (1997) 45 NSWLR 744).
  14. This discussion will provide the judge with the information needed to determine whether the statutory basis for the direction is established (see Jury Directions Act 2015 s43. See also Dyers v R (2002) 210 CLR 285; R v Heinze [2005] VSCA 124; R v Kneebone (1999) 47 NSWLR 450).
  15. If the judge finds that the prosecution does not have a good reason for failing to call a witness, he or she may ask the prosecution to reconsider its decision (Apostilides v R (1984) 154 CLR 563).[2] If the prosecution complies with the judge’s request, a section 43 direction will not be necessary.

    Reasonable explanations for failing to call a witness

    The Witness is Likely to be Unreliable

  16. A direction should not be given where the prosecution has a strong basis for considering the witness unreliable, untrustworthy or otherwise incapable of belief (R v Newland (1997) 98 A Crim R 455; Apostilides v R (1984) 154 CLR 563; Whitehorn v R (1983) 152 CLR 657).
  17. It is not enough for the prosecution to merely suspect the witness is unreliable. There must be identifiable circumstances which clearly establish unreliability (Apostilides v R (1984) 154 CLR 563).
  18. The prosecution should put forward the evidence on which it formed the view that the witness should not be called (R v Kneebone (1999) 47 NSWLR 450; R v Glennon (No 2) (2001) 7 VR 631).
  19. The mere fact that a potential witness has made contradictory statements in the past is not a sufficient reason for failing to call him or her (R v Shaw (1991) 57 A Crim R 425; R v Armstrong [1998] 4 VR 533; R v Palmer [2000] VSCA 236).
  20. The fact that the prosecution expects the witness to be unfavourable, or to give evidence that does not accord with the prosecution’s case theory, is also not a sufficient reason for failing to call a witness (Whitehorse v R (1983) 152 CLR 657; R v Newland (1997) 98 A Crim R 455; R v Heinze [2005] VSCA 124; Dyers v R (2002) 210 CLR 285; R v Kneebone (1999) 47 NSWLR 450).

    The Evidence is Unnecessary or Irrelevant

  21. A direction should not be given if the witness’s evidence is likely to be unimportant, cumulative or inferior to what has already been adduced (Police v Kyriacou (2009) 103 SASR 243).
  22. The prosecution will also have a reasonable explanation for not calling a witness where the unled evidence would simply have supported the unchallenged evidence of another witness. The evidence in question must have been:

    Other Reasons for Not Giving a Direction

  23. At common law, the prosecution has been held to have a good reason for not calling a witness in the following circumstances:
  24. These reasons are also likely to provide satisfactory explanations for the purpose of the Jury Directions Act 2015.
  25. In some cases the complexity of the circumstances may provide good reasons for not giving a section 43 direction. For example, in R v Taufua [1999] NSWCCA 205 the court held that, in order for the jury to determine whether the prosecution should have called the relevant witness, the judge would have had to direct them about matters such as the prosecution’s obligations to call a witness under Apostilides, the potential unreliability of the witness and directions under s32 of the Jury Directions Act 2015, and the need to seek leave to cross-examine the witness under s38 of the Evidence Act 2008. In such circumstances, it was seen to be preferable to give an anti-speculation direction rather than a section 43 direction (see also R v Smith [2000] NSWCCA 202).
  26. A failure by police to question a relevant person is not a satisfactory reason for not calling the person. A prosecutor cannot remain passive, leaving a failure by police to dictate who should be called at the trial (Solis v The Queen [2018] VSCA 275, [104]-[108]).
  27. Similarly, reticence of the complainant to identify a witness or provide a witness’ contact details, or the fact that the witness is overseas, are not satisfactory explanations for a failure to call by themselves. It is not for a complainant to decide whether a witness is important, and the availability of audio-visual links means that living overseas does not stop a witness from giving evidence (Jacobs v The Queen [2019] VSCA 285, [160]).

    Content of the Direction

  28. Where a section 43 direction is required, the judge may direct the jury that it is entitled to conclude that the witness in question would not have assisted the prosecution’s case and that this supports the defence case (Jury Directions Act 2015 s43; Jones v Dunkel (1959) 101 CLR 298). In some cases, it will also be appropriate to tell the jury that the prosecution failure to call the evidence strengthens the defence case.
  29. The direction must only describe a permissible path of reasoning to the jury. It must not require the jury to draw the inference described (Nadarajamoorthy v Moreton [2003] VSC 283).
  30. The judge must not direct the jury that the missing evidence would have contradicted the prosecution’s case or been unfavourable to the prosecution. He or she may only tell the jury that the evidence would not have assisted the prosecution (Nadajaramoorthy v Moreton [2003] VSC 283; R v Allen & Anor Vic CCA 20/12/1994; R v Buckland (1977) 2 NSWLR 452).
  31. The judge may explain any competing inferences that arise in the circumstances of the case, including any innocent explanations for the failure to call the witness (R v Jenkins (2002) 6 VR 81; R v OGD (1997) 45 NSWLR 744; R v Glennon (No 2) (2001) 7 VR 631. See also Apostilides v R (1984) 154 CLR 563).
  32. A judge may comment on the effect that the prosecution’s failure to call a particular witness would appear to have had on the course of the trial (Apostilides v R (1984) 154 CLR 563).
  33. If the prosecution fails to call a particular witness, but there are good reasons for not giving a section 43 direction, it may be appropriate to give an anti-speculation direction. See below for further information.

    Failure to Question Witnesses

  34. It is likely that section 43 also applies where the prosecution fails to question a witness about a particular matter, when it may be expected that the prosecution would ask about that matter (R v GEC (2001) 3 VR 334; R v Martin [2002] QCA 443; Western Australia v Coates [2007] WASC 307; Mahmood v Western Australia [2007] WASCA 101; R v Priest (2002) 137 A Crim R 133).[3]
  35. This means that a section 43 direction may be given if:
  36. The need for this direction raises the same issues which are discussed above regarding the prosecution failure to call the witness.
  37. At common law, one case where it was considered appropriate to direct the jury on the failure of the prosecution to question a witness about a topic was where:
  38. The fact that defence counsel had the option to cross-examine the witness about the relevant matter does not remove the need for a direction. Defence counsel should not be expected to risk leading prejudicial evidence in cross-examination because the prosecution has failed to elicit all relevant evidence (R v GEC (2001) 3 VR 334).
  39. See "Content of the Direction" above for a discussion of matters relevant to the content of a section 43 direction. If a section 43 direction is given in this context, modifications should be made to reflect the fact that an inference is being drawn from the prosecution’s failure to question a witness, rather than its failure to call a witness.

    Anti-Speculation Direction

  40. An anti-speculation direction may be given where:
  41. In such cases, the judge may direct the jury not to speculate about what the witness might have said (Dyers v R (2002) 210 CLR 285).
  42. The judge may also direct the jury:
  43. If defence counsel has suggested that an adverse inference should be drawn against the prosecution for failing to call or question a witness, the judge should explicitly direct the jury not to draw such an inference (see, e.g., R v Heinze [2005] VSCA 124).
  44. Where the prosecution does not call a witness because of doubts about his or her reliability, it will generally not be appropriate to tell that to the jury (see, e.g., R v Chimirri [2010] VSCA 57).
  45. As an anti-speculation direction and a section 43 direction are contradictory, the two directions should not be given together (Dyers v R (2002) 210 CLR 285).

    Notes

[1] It will usually be unjust to refuse the prosecution leave to cross-examine a witness under Evidence Act 2008 s38 where it has called that witness because of its duty to put all material evidence (including unfavourable evidence) before the jury (Santo v R [2009] NSWCCA 269; Kanaan v R [2006] NSWCCA 109; Kneebone v R (1999) 47 NSWLR 450 per Smart AJ).

[2] As the prosecution alone bears the responsibility of deciding whether a person will be called as a witness for the prosecution, the judge cannot force it to call a witness. Although the judge has the power to call a witness him or herself (and thus also avoid the need for a section 43 direction), this should only be done in the "most exceptional circumstances" (Apostilides v R (1984) 154 CLR 563).

[3] In Dyers v R (2002) 210 CLR 285, the High Court referred to R v GEC (2001) 3 VR 334, but did not need to decide whether the rule in Jones v Dunkel extended to a prosecution failure to lead evidence from a witness who has been called.

Last updated: 17 February 2020

In This Section

4.10.1 - Charge: Section 43 Direction

4.10.2 - Charge: Anti-Speculation Direction

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings