Commenting on Failure To Give Evidence

Question 1

When can inferences be drawn from the failure of a defendant to give evidence at common law in criminal proceedings?

Answer 1

Direction jury can more confidently find a fact established based on the silence of the accused should only be given in “rare and exceptional circumstances” (Azzopardi). Exception is case where:

(1) prosecution invites just to draw particularly damning inference from proven facts
(2) where there may be additional facts that would explain or contradict
(3) where those facts would be peculiarly within the knowledge of the accused

Judge is then entitled to comment but not direct the failure of D to provide explanation entitled the jury to more readily draw the inference the prosecution is seeking: Weissensteiner; Azzopardi.

Fact person could have supported or contradicted evidence already given will not suffice: Azzopardi

Judge should generally earn jury that silence is not admission and may not be used to fill gaps in case: RPS

Question 2

When does the EA permit person to comment on failure of person to give evidence?

Answer 2

S 18(8): in criminal proceedings, if objection to giving evidence by spouse, parent, child upheld, prosecutor cannot comment

S 20(2)-(4) Judge or any party may comment on failure of D, spouse, parent or child to give evidence. Unless made by other D cannot suggest failure was because of guilt or believe of guilt.

Question 3

When can an inference be drawn from failure to give evidence in civil proceedings at common law?

Answer 3

In civil cases, a judge may instruct jury that may draw inference from party’s failure to give evidence that if called evidence would not have assisted party’s case. Three conditions: (1) whether evidence more likely to be called by one party than another, (2)whether evidence would elucidate matter (3) whether absence unexplained. No application to criminal D: Dyers v Queen