Part 4 – Evidential directions - Division 5 - Delay and forensic disadvantage; Division 6 - Failure to give evidence or call witness

Question 1

S38 Definition

Answer 1

In this Division, Forensic disadvantage means disadvantage (more than mere existence of delay) to A in (a) challenging, adducing or giving evidence, OR (b) conducting his/her case
because of consequences of delay due to period of time that has elapsed between the alleged offence and the trial.

Question 2

S39 Direction on significant forensic disadvantage

Answer 2

(1) Defence counsel may request under s 12 that TJ direct jury on FD experienced by the A.
(2) TJ may direct the jury as above only if the TJ is satisfied that the A has experienced a significant FD
(3) in giving direction, TJ (a) must inform jury of (i) nature of disadvantage experienced by A, (ii) the need to take disadvantage into account when considering the evidence, and (b) must not say/suggest in any way, to jury that (i) it would be dangerous or unsafe to convict the A, or (ii) victim’s evidence should be scrutinised with great care.

Question 3

S40 Abolition of common law rules

Answer 3

Any rule of CL under which a TJ is required or permitted to direct the jury on a disadvantage to the A in challenging, adducing or giving evidence or conducting his/her case because of delay is abolished.

Question 4

S41 Direction on accused not giving evidence or calling witness

Answer 4

(1) If A does not give evidence or call a particular witness, Defence Counsel can request TJ direct jury on that fact.
(2) In giving that direction, TJ must explain
(a) the P’s obligation to prove that A is guilty; and
(b) that A is not required to give evidence or call a W (as the case requires); and
(c) jury should not guess or speculate about what might have been contained in (i) evidence that was not given by the A; or
(ii) evidence that might have been given by W who was not called
(d) fact A did not give evidence/ call W
(i) is not evidence against them
(ii) not admission by them
(iii) must not be used to fill gaps in evidence adduced by the P
(iv) does not strengthen the P case

Question 5

S42 Prohibited statements and suggestions in relation to

accused who does not give evidence or call witness

Answer 5

TJ, P and D counsel (or A if self-rep) must not say or suggest in any way to jury that because an A did not give evidence or call particular witness, jury may—

(a) conclude that the A is guilty from that fact; or
(b) use the failure of A to provide explanation of facts, which must be within their knowledge, to more safely draw adverse inference based on those facts, which, if drawn, would prove guilt of A; or
(c) draw inference that A did not give evidence or call a W because that would not have assisted their case

Question 6

S43 Direction on prosecution not calling or questioning witness

Answer 6

(1) if P does not call or question a particular witness, D Counsel can request under s 12 that TJ make JD on that fact
(2) TJ may direct the jury as referred to in (1) only if TJ satisfied P
(a) was reasonably expected to call or question the witness; and
(b) has not satisfactorily explained why it did not call or Q the W
(3) in giving that direction, TJ may inform the jury that it may conclude the W would not have assisted the P case.

Question 7

S44 Abolition of common law rules

Answer 7

(1) except as provided by this Div, TJ not required to direct jury
(a) when A does not give evidence or call W, or (b) when the P does not call or question a W (2) any contrary CL rule abolished.