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When to Use This Charge
This charge should be given if the case turns on a conflict between the evidence of a prosecution witness and a defence witness, and there is a reasonable likelihood that the jury will think that they must believe the defence evidence to be true before they can acquit the accused. See Onus and Standard of Proof for further information.
The requirements for this charge were not modified by the commencement of the Evidence Act 2008.
In this case, there is a clear conflict between the evidence of [prosecution witness] and the evidence of [defence witness].
It is not necessary for you to accept [defence witness’s] evidence in order to find the accused "not guilty". In keeping with the requirement that the prosecution must prove their case beyond reasonable doubt, you must acquit NOA if [defence witness’s] evidence gives rise to a reasonable doubt.
This is the case even if you prefer the evidence of [prosecution witness] to the evidence of [defence witness]. It is not sufficient for you merely to find the prosecution case to be preferable to the defence case. Before you can convict NOA, you must be satisfied that the prosecution have proven their case beyond reasonable doubt.
So even if you do not think [defence witness] is telling the truth, but are unsure where the truth lies, you must find the accused "not guilty".
In fact, even if you are convinced that [defence witness’s] evidence is not true, it is not the case that you must convict NOA. In such circumstances, you should put [defence witness’s] evidence to one side, and ask yourself whether the prosecution have proved the accused’s guilt beyond reasonable doubt on the basis of the evidence you do accept.
Last updated: 1 December 2009