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4.11.1 - Charge: Section 41 Direction

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When to Give this Charge

This charge may be given where the defence has requested a direction on the failure of the accused to give evidence or call a witness. See Directions Under Jury Directions Act 2015 for information on when directions are required.

It can be modified for use in cases where the prosecution has improperly suggested that an adverse inference can be drawn from the defence’s failure to call a witness. See Defence Failure to Call Witnesses for guidance.

You may have noticed that NOA did not [call NOW to] give evidence in this case. That is his/her right. As I have told you, it is for the prosecution to prove its case beyond reasonable doubt, and the accused is not required to [call any witnesses to] give evidence. The onus of proving the accused’s guilt always remains on the prosecution, regardless of whether the accused chooses to [give / call] any evidence.

This means that the fact that NOA did not [call NOW to] give evidence cannot be used as evidence against him. That fact is not evidence in the case – and as I have told you, you must decide the case only on the evidence.

So the fact that NOA did not [call NOW] to give evidence does not constitute an admission by the accused, and may not be used to fill gaps in the evidence led by the prosecution. It does not add to or strengthen the prosecution’s case in any way. It proves nothing at all.

You therefore must not draw any conclusions against the accused because s/he did not [call NOW to] give evidence, or even consider the fact that NOA did not [call NOW to] give evidence when deciding whether the prosecution has proved its case beyond reasonable doubt.

You also must not speculate about what [NOA / NOW] might have said if s/he had given evidence. You must decide this case solely on the evidence which has been given in court.


Last updated: 5 October 2016

See Also

4.11 - Defence Failure to Call Witnesses