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4.1.1 - Charge: Accused Giving Evidence

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[This charge may be given when the accused gives evidence, and defence counsel have requested a direction on the giving of evidence by the accused under s44I(1)(a).

If the defence requests a direction about the accused’s interest in the outcome of the trial, use Charge: Accused’s interest in outcome.]

In this case, NOA chose to give evidence. S/he did not have to do that, as an accused person has the right to remain silent in court. As I have told you, it is the prosecution who must prove NOA’s guilt beyond reasonable doubt. It is not for NOA to prove his/her innocence. This has not changed because NOA chose to give evidence.

In choosing to give evidence, NOA undertook to tell the truth. S/he also submitted him/herself to cross-examination, which is the way lawyers test a witness’ credibility and truthfulness. In this respect, NOA is no different to any other witness. You must assess his/her evidence in the same way as you assess the evidence of any other witness.

In this case, there is a clear conflict between the evidence of [prosecution witness] and NOA’s evidence.[1]

There are four broad conclusions you might reach about NOA’s evidence. If you think it is true, then you will find him/her not guilty.

If you are not sure whether NOA’s evidence is true, but think it might be, then you will have a reasonable doubt about the prosecution’s case, and again, you will find the accused not guilty. Similarly, if you merely prefer the evidence of [prosecution witnesses] to NOA’s evidence, then you must find NOA not guilty. It is not sufficient for you to merely find the prosecution case to be preferable to the defence case. In other words, it is not a question of simply balancing one case against the other. The prosecution must establish NOA’s guilt beyond reasonable doubt.

Finally, if you reject NOA’s evidence, that does not mean you must find him/her guilty. Instead, if you reject his/her evidence, put it aside and ask whether the prosecution has proved NOA’s guilt beyond reasonable doubt, on the basis of the evidence you do accept.

NOTE

 [1] If the judge has already given a Liberato direction, this paragraph and the following paragraphs should be revised to refer back to that direction.

 

Last updated: 2 October 2017

See Also

4.1 - The Accused as a Witness

4.1.2 – Charge: Accused’s interest in outcome