Election of accused not to give evidence or offer explanation

[2-1000] Introduction

The power of a judge to comment upon the failure of the accused to give or call evidence is contained in s 20 Evidence Act 1995. As to the effect of s 20 see generally:

  • Azzopardi v The Queen (2001) 205 CLR 50 especially at [50]–[56]

  • Dyers v The Queen (2002) 210 CLR 285

  • R v Wilson (2005) 62 NSWLR 346

  • Criminal Practice and Procedure NSW at [3-s 20.1]

  • Anderson, Williams & Clegg, The New Law of Evidence, 2nd edn, 2009 at 20.2ff

  • Odgers, Uniform Evidence Law, 16th edn, 2021 at [EA.20.90]ff.

The majority in Azzopardi v The Queen summarised, at [51], the four aspects of a direction it is almost always desirable to give concerning the accused’s silence in court. The High Court, in GBF v The Queen (2020) 271 CLR 537, reiterated that an Azzopardi direction is required in almost all cases where the accused does not give evidence: at [23]. The direction is particularly important in those cases where the accused bears the onus of establishing a defence: Ahmed v R [2021] NSWCCA 280 at [44]. It cannot necessarily be implied from the right to silence direction: Ahmed v R at [48]–[53]. Cases where a judge may comment on the failure of an accused to offer an explanation will be rare and exceptional, and comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case: Azzopardi v The Queen at [68]; GBF v The Queen at [23]. A failure to give a full direction on the decision of the accused not to give evidence may, in some cases, result in a miscarriage of justice: R v Wilson at [25], [35]; Martinez v R [2019] NSWCCA 153 at [113]. Examples of cases where the failure to give a full direction was said to be an error are Martinez v R, particularly at [114]–[117], and Ahmed v R at [44]–[53].

[2-1010] Suggested direction — failure of accused to give or call evidence

The accused has not given [or called] any evidence in response to the Crown’s case.

The Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence charged.

The accused bears no onus of proof in respect of any fact that is in dispute. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon [him/her] to do so. [He/She] is presumed to be innocent until you have been satisfied beyond reasonable doubt by the evidence led by the Crown that [he/she] is guilty of the offence charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove [his/her] guilt to the high standard required.

The accused’s decision not to give evidence cannot be used against [him/her] in any way at all during the course of your deliberations. That decision cannot be used by you as amounting to an admission of guilt. You must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give (or call) evidence. You cannot use that fact to fill any gaps that you might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

You must not speculate about what might have been said in evidence if the accused had given evidence (or what might have been said by [name of person] if that person had been called by the accused as a witness in the trial).

[2-1020] Failure of offer explanation

Where the accused has failed to give an explanation in response to the circumstantial case led by the Crown, a comment can be made on the inference that a jury can draw from that failure. The effect of the comment is that, in the absence of any explanation for the evidence produced by the Crown by way of facts that are peculiarly within the accused’s knowledge, the jury can more safely infer the guilt of the accused. This is usually referred to as a “Weissensteiner direction”. It will be a rare and exceptional case where such a comment would be appropriate. The fact that the accused could have contradicted facts in the Crown case is not sufficient to warrant such a comment. It will usually be prudent for the trial judge to ask the parties about the appropriateness of such a comment.

As to the failure to give an explanation see:

  • Weissensteiner v The Queen (1993) 178 CLR 217

  • RPS v The Queen (2000) 199 CLR 620

  • Azzopardi v The Queen (2001) 205 CLR 50 especially at [64]–[68]

  • Criminal Practice and Procedure NSW at [3-s 20.1]

  • Anderson, Williams & Clegg, The New Law of Evidence, 2nd edn, 2009, at 20.7

  • Odgers, Uniform Evidence Law, 16th edn, 2021 at [EA.20.90ff].

[2-1030] Weissensteiner comments

Because a Weissensteiner comment is so rarely appropriate and because what is said will depend upon the peculiar facts of the case, it is not appropriate to give a general direction. However, what is said should be made by way of a comment and not a direction. The jury should be informed that is only a comment made by the trial judge and that they are free to disregard it. The comment should be in terms of a failure to explain rather than as a failure to give evidence. The jury should be given directions in accordance with [2-1010] above.