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4.1 - The Accused as a Witness

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Warning! The law relating to directions on the accused giving evidence was modified by the Jury Directions and Other Acts Amendment Act 2017. There has not yet been appellate guidance on the operation of these provisions. This information should be used with caution. Further information about the Jury Directions and Other Acts Amendment Act 2017 is available in the Department of Justice and Regulation report, ‘Jury Directions: A Jury-Centric Approach Part 2’.

  1. This topic addresses the general directions that may be given when the accused has chosen to give evidence. It does not address any specific directions that may be required where the accused is cross-examined about matters such as his or her character. Those issues are addressed in other chapters in Part 4 of the Charge Book (see, e.g., Character Evidence).

    When Can the Accused Give Evidence?

  2. As the accused is a competent, but not compellable, witness for the defence (Evidence Act 2008 ss12, 17), in every criminal trial the accused will have a choice about whether or not to give evidence.
  3. While the accused’s evidence should usually be given before the evidence of any other defence witnesses (as this will prevent the jury from thinking that the accused tailored his or her evidence to fit with the other evidence in the case: RPS v R (2000) 199 CLR 620), this is not mandatory (Criminal Procedure Act 2009 s231(4)).

    Effect of Jury Directions Act 2015

  4. The law on jury directions about an accused giving evidence has been changed by the Jury Directions Act 2015 following amendments by the Jury Directions and Other Acts Amendment Act 2017, which commenced on 1 October 2017.
  5. The Act:

    Content of Directions

  6. The need for any direction about the accused as a witness depends on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of any request (Jury Directions Act 2015 ss14 - 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.
  7. Jury Directions Act 2015 s44I, as amended in 2017, sets out two types of directions about an accused giving evidence:
    1. A direction about the giving of evidence by the accused (Jury Directions Act 2015 s44I(1)(a)); and
    2. A direction about the interest the accused has in the outcome of the trial (Jury Directions Act 2015 s44I(1)(b)).
  8. While s44I(2) sets out four directions that must be given when the defence requests a direction “referred to in subsection (1)”, the approach adopted in this Charge Book is that the directions in s44I(2)(a) – (c) are relevant when the defence requests a direction about the accused giving evidence under s44I(1)(a), while the direction in s44I(2)(d) is only relevant when the defence requests a direction under s44I(1)(b).
  9. Therefore, where the defence has requested a direction about the accused giving evidence, the judge must explain that:
  10. When the defence requests a direction about the accused’s interest in the outcome of the trial, the judge must explain that:
  11. The directions provided by s44I(2) largely reflect the common law (see Robinson v R (No 2) (1991) 180 CLR 531; R v D’Arcy (2001) 122 A Crim R 268; R v Goldman [2007] VSCA 25).
  12. Under common law, a direction that the jury must not give less weight to the accused’s evidence just because a person who is on trial has an interest in the outcome of the trial would only be given in exceptional circumstances, to correct an improper prosecution argument. Alternatively, the direction was sometimes necessary as a corrective measure when it was appropriate to invite the jury to consider the interest of a witness other than the accused in the outcome of the case and it was necessary to ensure the jury did not apply the same reasoning to the accused’s evidence (De Rosa v Western Australia (2006) 32 WAR 136 at [44], [56]; R v Rezk [1994] 2 Qd R 321; R v Parsons & Brady [2015] SASCFC 183).
  13. While the direction may now be requested by defence counsel in accordance with Part 3 of the Jury Directions Act 2015, judges should exercise caution before giving this direction due to the risk of the direction backfiring and giving emphasis to the accused’s interest in the outcome of the trial.
  14. Given that the prosecution, defence counsel and the judge are prohibited from making a general statement that an interest in the outcome of the trial is a factor to take into account when assessing the evidence of witnesses (see Jury Directions Act 2015 s44H, discussed below), there will be a reduced need for a curative direction that interest in the outcome is a factor that can be relevant to witnesses, but not the accused.

    Other General Direction Potentially Relevant to the Accused

  15. At common law, the judge was not prohibited from reminding the jury that people often attempt to make excuses for their wrongful conduct, if it was be relevant to do so in a particular case. Such a statement did not single out the evidence of the accused or undermine the presumption of innocence (R v Franco (2006) 168 A Crim R 322; Rowbottom v R (2003) 13 NTLR 197). Section 44J does not appear to preclude this type of direction. See also Incriminating Conduct (Post Offence Lies and Conduct) and Jury Directions Act 2015 Part 4, Division 1.

    Prohibited directions

  16. Jury Directions Act 2015 s44J prohibits three directions which were usually given at common law about the evidence of an accused person:

    Prohibited statements

  17. Jury Directions Act 2015 s44H, as amended in 2017, provides that the trial judge, the prosecution and defence counsel must not say or suggest to the jury that:
    1. An interest in the outcome of the trial is a factor to take into account in assessing the evidence of witnesses generally; or
    2. The evidence of an accused is less credible, or requires more careful scrutiny, because any person who is on trial has an interest in the outcome of that trial.

    Interest in the Outcome of the Case

  18. The judge, prosecution and defence must not suggest that an interest in the outcome of the trial is a factor to take into account in assessing the evidence of witnesses generally (Jury Directions Act 2015 s44H(a), as amended in 2017).
  19. While the judge, prosecution and defence counsel must not suggest that an interest in the outcome of the trial is a general factor relevant to assessing witnesses, they may suggest that a witness has a particular interest in the outcome of that trial, and that particular interest does or may affect the witness’ credibility (Note to Jury Directions Act 2015 s44H).
  20. Jury Directions Act 2015 s44H Note 2 also mentions the accused. It is likely that an accused’s particular interest in the outcome of a case will only be relevant in exceptional cases where the accused may have a motive to lie which could operate independently of the outcome of the case. For example, an interest in protecting a co-accused family member, or a fear of the true offenders. Where it is suggested than an accused has such a particular interest, the judge should invite submissions from the parties on the appropriate direction to be given.
  21. While care must be taken in construing s44H(a) with reference to its common law predecessors, particularly given s44K(1) and its first Note, the experience of the common law may provide guidance on the meaning of particular interest.
  22. At common law, it was recognised that when a jury was assessing the evidence of any witness, including an accused, the jury was entitled to consider whether “some particular interest or purpose … will be served or promoted in giving evidence in the proceeding” (Robinson v R (No 2) (1991) 180 CLR 531).
  23. However, it was not permitted for a judge to direct the jury that it should “evaluate evidence on the basis of the interest of witnesses in the outcome” because “[e]xcept in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown” (Robinson v R (No 2) (1991) 180 CLR 531).
  24. The rationale for this prohibition was that it undermined the presumption of innocence and distracted the jury from its function of assessing whether the prosecution had proved its case beyond reasonable doubt (Hargraves & Stoten v R (2011) 245 CLR 257).
  25. A direction to the jury to consider the accused’s interest in the outcome undermined the presumption of innocence and risked circular reasoning because it invited the jury to assume that the accused was guilty and so had a motive to lie as a basis for giving the accused’s evidence less weight and to use that as a stepping stone to a conclusion of guilt (R v Haggag (1998) 101 A Crim R 593. See also R v FAR [1996] 2 Qd R 49).
  26. Under the common law, a judge could invite the jury to consider a witness’ interest in the outcome of the proceeding as a factor that could affect the witness’ credibility, provided it was made clear that this consideration could not be applied to the accused (R v Parsons & Brady [2015] SASCFC 183; De Rosa v WA (2006) 32 WAR 136).
  27. In light of this history, it is likely that Jury Directions Act 2015 s44H(a) prohibits any general invitation by the prosecution, defence counsel or the judge to consider a witness’ interest in the outcome as a factor relevant to the witness’ credibility. However, parties remain able to invite the jury to give less weight to a witness’ evidence due to identified considerations specific to that individual (see Jury Directions Act 2015 s44H Note 2). Where the identified consideration could also apply to the accused, the judge should invite submissions from the parties on whether any direction quarantining this consideration from applying to the accused is necessary, such as a direction under s44I(2)(d).

    Credibility of Accused and Need for Careful scrutiny

  28. The judge, prosecution and defence also must not suggest that the accused’s evidence is less credible, or requires more careful scrutiny, because any person who is on trial has an interest in the outcome of that trial (Jury Directions Act 2015 s44H(b), as amended in 2017).
  29. This is consistent with common law principles, which held that it was impermissible for a judge to single out the accused as a person whose evidence required greater scrutiny for no reason other than that he or she was the accused. Such a direction had the effect of treating the accused as a class of suspect witness like an accomplice (see Robinson v R (No 2) (1991) 180 CLR 531; Hargraves & Stoten v R (2011) 245 CLR 257; R v Stafford (1993) 67 ALJR 510; R v Ramey (1994) 68 ALJR 917; R v Osland [1998] 2 VR 636).
  30. Under common law, it was permissible for the accused to be listed as one of a number of witnesses whose evidence must be carefully examined due to its importance in deciding the issues in the trial. Such an approach did not undermine the presumption of innocence and was not prejudicial to the accused, as it placed the accused’s evidence in the same category as the evidence given by all other crucial witnesses (Martinez v Western Australia (2007) 172 A Crim R 389). The issue has not yet been considered in relation to Jury Directions Act 2015 s44H.
  31. At common law, the judge could tell the jury to “carefully consider” an issue that has arisen in the trial, even if the accused is the only witness who has given evidence about that issue, as long as the warning attaches to the issue itself, rather than the fact that it is the accused who has given evidence about that issue (R v Goodman [2007] VSCA 25; R v Franco (2006) 168 A Crim R 322).
  32. While it has not been decided, it appears likely that Jury Directions Act s44H(b) operates in the same manner as the common law prohibition. As such, it does not prevent directions about the need for scrutiny based on the importance of evidence on an issue. As at common law, it is likely that the provision only prohibits directions which state that there is a need for scrutiny of the accused because of his or her status as an accused.

    Joint Trials

  33. In trials of two or more accused, the judge must carefully consider the competing demands of justice, especially where one accused gives evidence and another accused stands mute (R v Webb (1994) 181 CLR 41).
  34. At common law, it was suggested that the judge might:
  35. Under the Jury Directions Act 2015, as amended in 2017, the judge will need to consider whether the statutory directions in s44I(2) pose any risk of prejudice to an accused who stands mute. The judge should invite submissions from both parties about whether any directions need to be modified to ensure fairness to both accused.
  36. The judge should also take into account Jury Directions Act 2015 s42, which prohibits the judge, prosecution and defence counsel from suggesting that, because an accused did not give evidence, the jury may conclude that the accused is guilty or is more likely to be guilty, or would not have given evidence that would have assisted his or her case. See Defence Failure to Call Witnesses for further information.
  37. Particular care must also be taken in relation to accomplice warnings. See Unreliable Evidence Warning and Criminally Concerned Witness Warnings for further information.

Last updated: 2 October 2017

In This Section

4.1.1 - Charge: Accused Giving Evidence

4.1.2 – Charge: Accused’s interest in outcome

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

4.2 - 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

4.11 - 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