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When to Use this Charge
This charge may be given when evidence is disclosed that, prior to trial, the accused failed to answer one or more questions asked by the police.
It should be given when that evidence is first adduced, and may be repeated (with appropriate modifications) in the summing up.
The charge will need to be adapted if:
If the accused remained silent in response to a statement made by a person with whom he or she was on equal terms, use Charge: Admissions by Silence.
If the accused did not give evidence in court use Charge: Section 41 Direction.
Failure to Answer Police Questions
You have just heard evidence that NOA chose not to answer [some of] the questions asked by the police. That was his/her right, as the police told him/her when they sought to question him/her.
It would therefore be wrong for you to use his/her silence against him/her in any way. The fact that a person chooses not to answer police questions does not mean that s/he has something to hide, or is guilty of some offence. It cannot provide the basis for drawing any unfavourable inferences. To use an accused person’s silence in such a way would be to undermine a fundamental right provided by the law.
[If evidence is disclosed that the accused failed to raise his or her defence at an earlier time, add the following shaded section]
You also may not use against NOA the fact that s/he did not tell the police that [insert details of defence, e.g., "s/he acted in self-defence"]. That was also 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 provide the police with any information in order to prove his/her innocence.
This means that you must not conclude from the fact that NOA did not raise the defence at an earlier time that it was an invention, or draw any other inferences against the accused for failing to mention it. You must not even consider the fact that NOA did not tell the police about that defence when deciding whether the prosecution has proved its case beyond reasonable doubt.
If the evidence of silence may be used for a legitimate purpose, explain that purpose here. For example, if evidence of the accused’s selective silence has been adduced, add the following shaded section
Of course, you are free to use any answers that NOA did give the police when considering the case against him/her. However, you must not draw any conclusions from the fact that s/he chose not to answer some of their questions, or from his/her choice of which questions to answer. Evidence of the accused’s silence has only been given in order to provide you with a complete picture of the police interview. It must not be used against the accused.
Last updated: 29 June 2015