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4.11 - Defence Failure to Call Witnesses

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Scope

  1. This topic addresses directions that may be given where the defence fails to call a witness (including the accused) to give evidence at trial.
  2. Similar issues are addressed in the following topics:

    No Obligation to Give Evidence or Call Witnesses

  3. In contrast to the prosecution’s duty to call all material witnesses (see Prosecution Failure to Call or Question Witnesses), the defence is usually under no obligation to give evidence him or herself, or to call any other witnesses to give evidence. A criminal trial is an accusatorial process in which the prosecution bears the onus of proving the accused’s guilt beyond reasonable doubt (RPS v R (2000) 199 CLR 620; Azzopardi v R (2001) 205 CLR 50. See Onus and Standard of Proof).
  4. This is sometimes expressed as the accused having a "right of silence". However, that expression describes a number of different rules that apply in the criminal law. To avoid confusion, it is useful to specify which aspect of the right of silence is relevant (RPS v R (2000) 199 CLR 620; Azzopardi v R (2001) 205 CLR 50).
  5. In this context, the relevant aspect of the right of silence is the immunity of an accused person undergoing trial from being compelled to give or call evidence (Azzopardi v R (2001) 205 CLR 50).

    Direction on Failure to Give Evidence or Call Witnesses

  6. The need for any directions on the accused’s failure to give or call evidence depends on
    1. whether directions are sought or
    2. whether there are substantial and compelling reasons for giving a direction despite the absence of a request (Jury Directions Act 2015 ss12, 14, 15, 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.
  7. Where the accused fails to give evidence or call a witness to give evidence at a trial, the defence may request a direction that warns the jury against the impermissible use of the accused’s failure to give evidence or call a witness. This direction is referred to in this Charge Book as a ‘Section 41 direction’ (see Jury Directions Act 2015 s41).

    Warn the Jury Against Impermissible Use: The Section 41 Direction

  8. As the accused is under no obligation to give evidence at trial, the fact that the accused does not do so cannot be used as evidence against him or her (Azzopardi v R (2001) 205 CLR 50. See also Weissensteiner v R (1993) 178 CLR 217; Dyers v R (2002) 210 CLR 285).
  9. Therefore, where the accused does not give evidence, the defence may request a direction that the judge explains:
    1. The prosecution’s obligation to prove guilt;
    2. That the accused is not required to give evidence or call a witness;
    3. That the jury should not guess or speculate about the evidence the accused may have given, or the evidence the witness may have given;
    4. That the fact that the accused did not give evidence or call a witness is not evidence against the accused or an admission, must not be used to fill gaps in the evidence and does not strengthen the prosecution case (Jury Directions Act 2015 s41).
  10. This direction is a statutory replacement for the common law Azzopardi direction, and contains most of the same content (See Azzopardi v R (2001) 205 CLR 50; Dyers v R (2002) 210 CLR 285; R v DAH [2004] QCA 419).
  11. The direction applies to both the situation where the accused fails to give evidence and where the defence fails to call a particular witness.
  12. At common law, such directions were given as a matter of practice, even if not requested by defence counsel. The directions were given to address the risk that the jury might use the accused’s silence in court to his or her detriment (Johnston v R [2007] NSWCCA 133; Server v R [2007] NSWCCA 339; Azzopardi v R (2001) 205 CLR 50).
  13. According to the joint judgment of the High Court in Azzopardi, it is "almost always" desirable to give these directions to address the risk of the jury reasoning impermissibly from the accused’s silence (Azzopardi v R (2001) 205 CLR 50).
  14. Judges conducting trials under the Jury Directions Act 2015 will need to consider how this statement on the desirability of these directions at common law informs the judge’s assessment of whether there are substantial and compelling reasons for giving the directions in the absence of a request (compare Jury Directions Act 2015 s16).
  15. However, even at common law, these directions did not need to be given in every case (R v Richards [2002] NSWCCA 38; R v Park [2003] NSWCCA 203; R v SMR [2002] NSWCCA 258; R v Nguyen [2002] NSWCCA 342; R v Wilson (2005) 62 NSWLR 346. Cf R v Macris (2004) 147 A Crim R 99).
  16. No particular form of words needs to be used when giving this direction. What is required is a warning appropriate to the issues in the particular case, paying proper attention to the guidance offered in Jury Directions Act 2015 s41 and in Azzopardi (See Jury Directions Act 2015 s6; Baquayee v R [2006] NSWCCA 103. See also R v Colville [2003] NSWCCA 23; R v Burns (2003) 137 A Crim R 557; R v Nicholson; Ex parte DPP (Cth) [2004] QCA 393; R v DAH [2004] QCA 419).
  17. Although the High Court in Azzopardi used the expression "it cannot be used as a make-weight", the term "make-weight" should be avoided when charging the jury. This term was discouraged at common law as unhelpful for use with a jury, and the Jury Directions Act 2015 uses the term ‘does not strengthen the prosecution case’ (See R v DAH [2004] QCA 419).

    Prohibited Directions

  18. Section 42 of the Jury Directions Act 2015 prohibits the judge, the prosecution and defence counsel from saying or suggesting that because the accused did not give evidence or call a particular witness, the jury may:
    1. conclude that the accused is guilty from that fact;
    2. use the failure of the accused to provide an explanation, which must be within the knowledge of the accused, to more safely draw an adverse inference based on those facts which, if drawn, would prove the guilt of the accused; or
    3. draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case (Jury Directions Act 2015 s42).
  19. Previous statutory limitations on the power of the judge or a prosecutor to comment on the accused’s failure to give evidence or call witnesses were given a broad construction. The same approach will likely apply to Jury Directions Act 2015 s42.
  20. The prohibition applies to both statements and suggestions. This prohibits even "the most subtle allusion" which suggests that the accused’s silence is evidence of guilt, or in any way supports the prosecution case (see Bataillard v R (1907) 4 CLR 1282; RPS v R (2000) 199 CLR 620).
  21. In RPS v R (2000) 199 CLR 620 it was held that the jury should not be told any of the following:
  22. It is a misdirection to tell the jury that it is usually easier to accept uncontradicted evidence than evidence which is actively disputed (R v JJT (2006) 67 NSWLR 152).
  23. However, it is not a misdirection for the judge to simply point out that some of the prosecution evidence remains uncontradicted. This differs from suggesting that the prosecution evidence might be more readily accepted as a result, or that adverse inferences can be drawn from that fact (R v Collie (2005) 91 SASR 339. See also R v Tran (2006) 96 SASR 8).
  24. The judge must not suggest that by making him or herself unavailable for cross-examination, the accused has deprived the jury of something to which they were entitled (R v Conway (2005) 157 A Crim R 474).
  25. The judge should not tell the jury that the accused is "not required to help the prosecution", as this may imply that if the accused had given evidence it would have assisted the prosecution case (R v Collie (2005) 91 SASR 339).

    Failure to Call a Witness: The common law Jones v Dunkel Direction prohibited

  26. At common law, there was a limited power for judges to direct the jury that it was entitled to draw an adverse inference from the fact that the defence in a criminal trial failed to call a witness (see Jones v Dunkel (1959) 101 CLR 298; Dyers v R (2002) 210 CLR 285).
  27. This directions was referred to as the Jones v Dunkel direction, and advised the jury that it could infer that the evidence from a witness who was not called would not have assisted the party (Jones v Dunkel (1959) 101 CLR 298).
  28. However, due to the adversarial and accusatory nature of criminal trials, the Jones v Dunkel direction was only suitable in "rare and exceptional" cases (Dyers v R (2002) 210 CLR 285).
  29. Under the Jury Directions Act 2015, the Jones v Dunkel direction is prohibited in relation to the accused. The judge, the prosecution and the defence must not say or suggest that the jury can infer that the accused did not call a witness because that would not have assisted his or her case (Jury Directions Act 2015 s42(c)).
  30. If the prosecution or another party breaches this prohibition, then the judge must correct the statement or suggestion, unless there are good reasons for not doing so (Jury Directions Act 2015 s7).
  31. Instead, the section 41 direction is available to warn the jury not to guess or speculate about what evidence a witness might have given, where the witness has not been called by the defence (Jury Directions Act 2015 s41).

    Failure to Provide an Explanation: The common law Weissensteiner Direction Prohibited

  32. The common law also provided for judges to direct a jury that it could more safely infer that the prosecution case was established where the accused failed to call evidence to contradict a circumstantial case which, if the evidence existed, could only have been known to the accused (see RPS v R (2000) 199 CLR 620; Weissensteiner v R (1993) 178 CLR 217).
  33. This direction was known as the Weissensteiner direction and could only be given in exceptional cases (Azzopardi v R (2001) 205 CLR 50. See also RPS v R (2000) 199 CLR 620; Weissensteiner v R (1993) 178 CLR 217).
  34. Under the Jury Directions Act 2015, the Weissensteiner direction is prohibited. The judge, the prosecutor and the defence must not say or suggest to the jury that the accused’s failure to give evidence or call a witness allows the jury to use that failure to provide an explanation of facts must, if true, must be within the knowledge of the accused, to more safely draw an inference of guilt (Jury Directions Act 2015 s42(b)).
  35. If the prosecution or another party breaches this prohibition, then the judge must correct the statement or suggestion, unless there are good reasons for not doing so (Jury Directions Act 2015 s7).

    Prohibition on Comment by an Accused on a Co-accused’s Failure to Give Evidence

  36. Prior to the commencement of the Jury Directions Act 2015, section 20 of the Evidence Act 2008 allowed an accused to comment on the failure of a co-accused to give evidence and permitted the judge to comment on that comment.
  37. Under the Evidence Act 2008, this comment could include inviting the jury to infer that a co-accused remained silent because that co-accused was guilty (R v Skaf [2004] NSWCCA 74; Azzopardi v R (2001) 205 CLR 50).
  38. For trials commencing on or after 29 June 2015, such comments are prohibited. The trial judge, the prosecution and defence counsel must not say or suggest that the jury can use the fact that an accused did not give evidence as a basis to conclude that the accused is guilty (Jury Directions Act 2015 s42(a)).
  39. If a party makes this prohibited comment, the trial judge must correct the statement or suggestion, unless there are good reasons for not doing so (Jury Directions Act 2015 s7).

    Prohibited Comments by the Prosecution

  40. Under the Evidence Act, it was held that a statement in an opening address that the accused has a right to give evidence was not a comment on the failure to do so (Peterson v R (1979) 41 FLR 205; R v Anastasiou (1991) 21 NSWLR 394), while such a comment in final addresses was prohibited (R v Villar [2004] NSWCCA 302).
  41. Similarly, under the Evidence Act 2008, the prosecution could refer to the defence’s failure to call any witnesses without breaching this prohibition (see, e.g., R v Thornton (1980) 3 A Crim R 80). The prosecution could also refer to the fact that the only version before the court is that provided by prosecution witnesses and there is no evidence to support the alternative scenario provided by defence counsel (R v Yammine [2002] NSWCCA 289).
  42. However, a comment that the accused has failed to contradict prosecution witnesses, or to provide an alternative version of events, would breach the prohibition (R v Siebel (1992) 57 SASR 558; R v Secombe [2010] VSCA 58).
  43. Despite the differences between Evidence Act 2008 s20, as it applied before 29 June 2015 and Jury Directions Act 2015 s42, it is likely that the same principles will continue to apply. The prosecution must not address the jury with an argument that the accused’s failure to give or call evidence strengthens the prosecution case in any way.
  44. If the prosecution makes a prohibited statement or suggestion, the trial judge must correct the statement or suggestion, unless there are good reasons for not doing so (Jury Directions Act 2015 s7).
  45. Such a direction may include the following elements:

    Do Not Speculate About Reasons for Failure: The OGD Direction

  46. Previously, it was held that where the accused fails to give evidence, it would ordinarily be necessary to direct the jury that:
  47. However, it has been noted that the High Court in Azzopardi did not include this "OGD direction" in the warning which it described as "almost always" desirable to give (see "Warn the Jury Against Impermissible Use: The Section 41 Direction" above).
  48. The section 41 direction does not contain a component warning the jury that there may be reasons for the accused to remain silent and not to speculate about those reasons. Judges will need to consider whether such a direction is specifically requested in addition to or as an alternative to the section 41 direction. Alternatively, the judge will need to consider whether there are substantial and compelling reasons for giving the direction despite the absence of a request.
  49. At common law, it was suggested that as the OGD direction was designed to balance a Weissensteiner direction, it was only necessary to give an OGD direction in the rare cases where a Weissensteiner direction is given (R v Nguyen [2002] NSWCCA 342; R v Wilson (2005) 62 NSWLR 346).
  50. The risk posed by the OGD direction is that it may lead the jury to consider what reasons the accused might have had for not giving evidence, which will usually be irrelevant (R v Graham [2005] NSWCCA 127 per Howie J).
  51. These common law principles identified above may inform whether there are good reasons for not giving the direction, or whether there are substantial and compelling reasons for giving the direction (see Jury Directions Act 2015 ss15, 16).

Last updated: 29 June 2015

In This Section

4.11.1 - Charge: Section 41 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

4.10 - Prosecution Failure to Call or Question 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