2.4.1 – Charge: Unavailable witness

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[This direction is designed for use in cases where the evidence of an unavailable witness is led by reading the witness’ statement to the jury and then playing a recording of the witness being cross-examined at the committal hearing. It may be adapted for other circumstances.]

The next evidence you will hear is going to be given in a slightly different manner than usual. The next witness, NOW, is not available to give evidence to you in person. Instead, you will receive [his/her] evidence in two parts.

First, the prosecutor will give you and will read out NOW’s witness statement. This is a statement that NOW made to the police.

Then, you will hear a recording of NOW being cross-examined at the committal hearing. A committal hearing is a hearing before a magistrate to determine if the case should go to a jury.

At the end of the trial, I will tell you if there are any special principles you need to apply to this evidence. However, for the moment, you should treat the evidence the same way you treat the evidence from any other witness who gives evidence in person.

[If the judge considers it necessary to do so in the circumstances of the trial, add the following direction instructing the jury not to speculate on why NOW is unavailable]

I also direct you, as a matter of law, do not speculate about the reason why NOW is not available to give evidence in person. The law allows evidence to be given in this form for many reasons, including where a person has died, or has a serious medical condition, or is overseas and cannot be reached.

Last updated: 11 July 2018

See Also

2.4 – Unavailable witnesses