4.10.2 - Defence Failure to Call Witnesses1
4.10.2.1 - Bench Notes
Scope of these Notes
1.
These Notes address directions that may be given where the defence
fails to call a witness (including the accused) to give evidence at trial.
2.
Similar issues are addressed in the following Bench Notes:

Prosecution Failure to Call or Question Witnesses;

Failure to Challenge Evidence (Browne v Dunn);

Silence in Response to People in Authority;

Silence in Response to Equal Parties.
No Obligation to Give Evidence or Call Witnesses
3.
In contrast to the prosecution’s duty to call all material witnesses
(see Bench Notes: Prosecution Failure to Call or Question Witnesses),
the defence is under no obligation to give evidence him or herself, or
to call any other witnesses to give evidence. A criminal trial is an
accusatorial process in which the prosecution bears the onus of
proving the accused’s guilt beyond reasonable doubt (RPS v R (2000)
199 CLR 620; Azzopardi v R (2001) 205 CLR 50. See Bench Notes:
Onus of Proof).
4.
This is sometimes expressed as the accused having a “right of
silence”. However, that expression describes a number of different
rules that apply in the criminal law. To avoid confusion, it is useful to
specify which aspect of the right of silence is relevant (RPS v R
(2000) 199 CLR 620; Azzopardi v R (2001) 205 CLR 50).
5.
In this context, the relevant aspect of the right of silence is the
immunity of an accused person undergoing trial from being
compelled to give or call evidence (Azzopardi v R (2001) 205 CLR
50).
Direction on Failure to Give Evidence or Call Witnesses
6.
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The need for any directions on the accused’s failure to give or call
evidence depends on
This document was last updated on 29 June 2015.
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7.
a)
whether directions are sought or
b)
whether there are substantial and compelling reasons for giving
a direction despite the absence of a request (Jury Directions Act
2015 ss12, 14, 15, 16). See Bench Notes: Directions Under Jury
Directions Act 2015 for information on when directions are
required.
Where the accused fails to give evidence or call a witness to give
evidence at a trial, the defence may request a direction that warns
the jury against the impermissible use of the accused’s failure to give
evidence or call a witness. This direction is referred to in this Charge
Book as a ‘Section 41 direction’ (see Jury Directions Act 2015 s41).
Warn the Jury Against Impermissible Use: The Section 41
Direction
8.
As the accused is under no obligation to give evidence at trial, the
fact that the accused does not do so cannot be used as evidence
against him or her (Azzopardi v R (2001) 205 CLR 50. See also
Weissensteiner v R (1993) 178 CLR 217; Dyers v R (2002) 210 CLR
285).
9.
Therefore, where the accused does not give evidence, the defence
may request a direction that the judge explains:
a)
The prosecution’s obligation to prove guilt;
b)
That the accused is not required to give evidence or call a
witness;
c)
That the jury should not guess or speculate about the evidence
the accused may have given, or the evidence the witness may
have given;
d)
That the fact that the accused did not give evidence or call a
witness is not evidence against the accused or an admission,
must not be used to fill gaps in the evidence and does not
strengthen the prosecution case (Jury Directions Act 2015 s41).
10. This direction is a statutory replacement for the common law
Azzopardi direction, and contains most of the same content (See
Azzopardi v R (2001) 205 CLR 50; Dyers v R (2002) 210 CLR 285; R
v DAH [2004] QCA 419).
11. The direction applies to both the situation where the accused fails to
give evidence and where the defence fails to call a particular witness.
12. At common law, such directions were given as a matter of practice,
even if not requested by defence counsel. The directions were given
to address the risk that the jury might use the accused’s silence in
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court to his or her detriment (Johnston v R [2007] NSWCCA 133;
Server v R [2007] NSWCCA 339; Azzopardi v R (2001) 205 CLR 50).
13. According to the joint judgment of the High Court in Azzopardi, it is
“almost always” desirable to give these directions to address the risk
of the jury reasoning impermissibly from the accused’s silence
(Azzopardi v R (2001) 205 CLR 50).
14. Judges conducting trials under the Jury Directions Act 2015 will need
to consider how this statement on the desirability of these directions
at common law informs the judge’s assessment of whether there are
substantial and compelling reasons for giving the directions in the
absence of a request (compare Jury Directions Act 2015 s16).
15. However, even at common law, these directions did not need to be
given in every case (R v Richards [2002] NSWCCA 38; R v Park
[2003] NSWCCA 203; R v SMR [2002] NSWCCA 258; R v Nguyen
[2002] NSWCCA 342; R v Wilson (2005) 62 NSWLR 346. Cf R v
Macris (2004) 147 A Crim R 99).
16. No particular form of words needs to be used when giving this
direction. What is required is a warning appropriate to the issues in
the particular case, paying proper attention to the guidance offered
in Jury Directions Act 2015 s41 and in Azzopardi (See Jury Directions
Act 2015 s6; Baquayee v R [2006] NSWCCA 103. See also R v
Colville [2003] NSWCCA 23; R v Burns (2003) 137 A Crim R 557; R v
Nicholson; Ex parte DPP (Cth) [2004] QCA 393; R v DAH [2004] QCA
419).
17. Although the High Court in Azzopardi used the expression “it cannot
be used as a make-weight”, the term “make-weight” should be
avoided when charging the jury. This term was discouraged at
common law as unhelpful for use with a jury, and the Jury Directions
Act 2015 uses the term ‘does not strengthen the prosecution case’
(See R v DAH [2004] QCA 419).
Prohibited Directions
18. Section 42 of the Jury Directions Act 2015 prohibits the judge, the
prosecution and defence counsel from saying or suggesting that
because the accused did not give evidence or call a particular
witness, the jury may:
a)
conclude that the accused is guilty from that fact;
b)
use the failure of the accused to provide an explanation, which
must be within the knowledge of the accused, to more safely
draw an adverse inference based on those facts which, if drawn,
would prove the guilt of the accused; or
c)
draw an inference that the accused did not give evidence or call
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a witness (as the case requires) because that would not have
assisted his or her case (Jury Directions Act 2015 s42).
19. Previous statutory limitations on the power of the judge or a
prosecutor to comment on the accused’s failure to give evidence or
call witnesses were given a broad construction. The same approach
will likely apply to Jury Directions Act 2015 s42.
20. The prohibition applies to both statements and suggestions. This
prohibits even “the most subtle allusion” which suggests that the
accused’s silence is evidence of guilt, or in any way supports the
prosecution case (see Bataillard v R (1907) 4 CLR 1282; RPS v R
(2000) 199 CLR 620).
21. In RPS v R (2000) 199 CLR 620 it was held that the jury should not
be told any of the following:

That the accused’s election not to give evidence can be taken
into account in judging the value or weight of the prosecution’s
evidence;

That in the absence of a denial or contradiction of the
prosecution evidence, the jury can more readily discount doubts
about that evidence, and more readily accept the evidence;

That the accused’s decision not to give evidence can enable the
jury to feel more confident in relying on the evidence tendered
by the prosecution;

That the jury is entitled to conclude from the accused’s failure
to give evidence that his or her evidence would not have been
of assistance.
22. It is a misdirection to tell the jury that it is usually easier to accept
uncontradicted evidence than evidence which is actively disputed (R
v JJT (2006) 67 NSWLR 152).
23. However, it is not a misdirection for the judge to simply point out
that some of the prosecution evidence remains uncontradicted. This
differs from suggesting that the prosecution evidence might be more
readily accepted as a result, or that adverse inferences can be drawn
from that fact (R v Collie (2005) 91 SASR 339. See also R v Tran
(2006) 96 SASR 8).
24. The judge must not suggest that by making him or herself
unavailable for cross-examination, the accused has deprived the jury
of something to which they were entitled (R v Conway (2005) 157 A
Crim R 474).
25. The judge should not tell the jury that the accused is “not required to
help the prosecution”, as this may imply that if the accused had
given evidence it would have assisted the prosecution case (R v
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Collie (2005) 91 SASR 339).
Failure to Call a Witness: The common law Jones v Dunkel
Direction prohibited
26. At common law, there was a limited power for judges to direct the
jury that it was entitled to draw an adverse inference from the fact
that the defence in a criminal trial failed to call a witness (see Jones
v Dunkel (1959) 101 CLR 298; Dyers v R (2002) 210 CLR 285).
27. This directions was referred to as the Jones v Dunkel direction, and
advised the jury that it could infer that the evidence from a witness
who was not called would not have assisted the party (Jones v
Dunkel (1959) 101 CLR 298).
28. However, due to the adversarial and accusatory nature of criminal
trials, the Jones v Dunkel direction was only suitable in “rare and
exceptional” cases (Dyers v R (2002) 210 CLR 285).
29. Under the Jury Directions Act 2015, the Jones v Dunkel direction is
prohibited in relation to the accused. The judge, the prosecution and
the defence must not say or suggest that the jury can infer that the
accused did not call a witness because that would not have assisted
his or her case (Jury Directions Act 2015 s42(c)).
30. If the prosecution or another party breaches this prohibition, then
the judge must correct the statement or suggestion, unless there are
good reasons for not doing so (Jury Directions Act 2015 s7).
31. Instead, the section 41 direction is available to warn the jury not to
guess or speculate about what evidence a witness might have given,
where the witness has not been called by the defence (Jury
Directions Act 2015 s41).
Failure to Provide an Explanation: The common law
Weissensteiner Direction Prohibited
32. The common law also provided for judges to direct a jury that it
could more safely infer that the prosecution case was established
where the accused failed to call evidence to contradict a
circumstantial case which, if the evidence existed, could only have
been known to the accused (see RPS v R (2000) 199 CLR 620;
Weissensteiner v R (1993) 178 CLR 217).
33. This direction was known as the Weissensteiner direction and could
only be given in exceptional cases (Azzopardi v R (2001) 205 CLR
50. See also RPS v R (2000) 199 CLR 620; Weissensteiner v R
(1993) 178 CLR 217).
34. Under the Jury Directions Act 2015, the Weissensteiner direction is
prohibited. The judge, the prosecutor and the defence must not say
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or suggest to the jury that the accused’s failure to give evidence or
call a witness allows the jury to use that failure to provide an
explanation of facts must, if true, must be within the knowledge of
the accused, to more safely draw an inference of guilt (Jury
Directions Act 2015 s42(b)).
35. If the prosecution or another party breaches this prohibition, then
the judge must correct the statement or suggestion, unless there are
good reasons for not doing so (Jury Directions Act 2015 s7).
Prohibition on Comment by an Accused on a Co-accused’s
Failure to Give Evidence
36. Prior to the commencement of the Jury Directions Act 2015, section
20 of the Evidence Act 2008 allowed an accused to comment on the
failure of a co-accused to give evidence and permitted the judge to
comment on that comment.
37. Under the Evidence Act 2008, this comment could include inviting the
jury to infer that a co-accused remained silent because that coaccused was guilty (R v Skaf [2004] NSWCCA 74; Azzopardi v R
(2001) 205 CLR 50).
38. For trials commencing on or after 29 June 2015, such comments are
prohibited. The trial judge, the prosecution and defence counsel must
not say or suggest that the jury can use the fact that an accused did
not give evidence as a basis to conclude that the accused is guilty
(Jury Directions Act 2015 s42(a)).
39. If a party makes this prohibited comment, the trial judge must
correct the statement or suggestion, unless there are good reasons
for not doing so (Jury Directions Act 2015 s7).
Prohibited Comments by the Prosecution
40. Under the Evidence Act, it was held that a statement in an opening
address that the accused has a right to give evidence was not a
comment on the failure to do so (Peterson v R (1979) 41 FLR 205; R
v Anastasiou (1991) 21 NSWLR 394), while such a comment in final
addresses was prohibited (R v Villar [2004] NSWCCA 302).
41. Similarly, under the Evidence Act 2008, the prosecution could refer
to the defence’s failure to call any witnesses without breaching this
prohibition (see, e.g., R v Thornton (1980) 3 A Crim R 80). The
prosecution could also refer to the fact that the only version before
the court is that provided by prosecution witnesses and there is no
evidence to support the alternative scenario provided by defence
counsel (R v Yammine [2002] NSWCCA 289).
42. However, a comment that the accused has failed to contradict
prosecution witnesses, or to provide an alternative version of events,
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would breach the prohibition (R v Siebel (1992) 57 SASR 558; R v
Secombe [2010] VSCA 58).
43. Despite the differences between Evidence Act 2008 s20, as it applied
before 29 June 2015 and Jury Directions Act 2015 s42, it is likely
that the same principles will continue to apply. The prosecution must
not address the jury with an argument that the accused’s failure to
give or call evidence strengthens the prosecution case in any way.
44. If the prosecution makes a prohibited statement or suggestion, the
trial judge must correct the statement or suggestion, unless there
are good reasons for not doing so (Jury Directions Act 2015 s7).
45. Such a direction may include the following elements:

That the jury must only take into account the directions given
by the judge;

That the prosecution was not entitled to refer to the fact that
the accused or other party failed to give evidence;

That the jury must ignore any comments made by the
prosecution about the party’s failure to give evidence;

That there may be reasons, unknown to the jury, why an
accused person remains silent; and

Not to speculate about those reasons (see, e.g., R v Villar
[2004] NSWCCA 302; R v Gardner (2001) 123 A Crim R 439).
Do Not Speculate About Reasons for Failure: The OGD
Direction
46. Previously, it was held that where the accused fails to give evidence,
it would ordinarily be necessary to direct the jury that:

There may be reasons, unknown to them, why an accused
person remains silent, even if he or she is in a position to
contradict or explain evidence; and

Not to speculate about those reasons (R v OGD (1997) 45
NSWLR 744).
47. However, it has been noted that the High Court in Azzopardi did not
include this “OGD direction” in the warning which it described as
“almost always” desirable to give (see “Warn the Jury Against
Impermissible Use: The Section 41 Direction” above).
48. The section 41 direction does not contain a component warning the
jury that there may be reasons for the accused to remain silent and
not to speculate about those reasons. Judges will need to consider
whether such a direction is specifically requested in addition to or as
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an alternative to the section 41 direction. Alternatively, the judge will
need to consider whether there are substantial and compelling
reasons for giving the direction despite the absence of a request.
49. At common law, it was suggested that as the OGD direction was
designed to balance a Weissensteiner direction, it was only necessary
to give an OGD direction in the rare cases where a Weissensteiner
direction is given (R v Nguyen [2002] NSWCCA 342; R v Wilson
(2005) 62 NSWLR 346).
50. The risk posed by the OGD direction is that it may lead the jury to
consider what reasons the accused might have had for not giving
evidence, which will usually be irrelevant (R v Graham [2005]
NSWCCA 127 per Howie J).
51. These common law principles identified above may inform whether
there are good reasons for not giving the direction, or whether there
are substantial and compelling reasons for giving the direction (see
Jury Directions Act 2015 ss15, 16).
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