CHAPTER 2: ADDUCING EVIDENCE

Part 2.1: Witnesses

Division 1: Competence and compellability of witnesses

Section 13: Competence: lack of capacity

Brooks
(1998) 44 NSWLR 121; 102 A Crim R 367
Evidence Act 1995 (NSW) s.13(2) – child sexual assault - complainant under eleven at time of trial - judge made inquiry under s.13(2) and ambiguously found complainant competent to give “evidence” - complainant gave unsworn evidence
Held: (allowing appeal) - finding that complainant competent to give evidence meant she should have given sworn evidence - unsworn testimony not proper evidence before the jury - before s.13(2) can be used must establish witness incapable of giving sworn evidence.
Held: s.13(2)(b) requirement to tell person important to tell truth does not require particular words.

Fitzsimmons
NSW CCA 15.6.1998
Evidence Act 1995 (NSW) s.13 - sexual assault - complainant sworn then Judge made inquiry as to whether she was competent to give unsworn evidence - trial proceeded on basis her evidence was unsworn
Held: inquiry as to competency should have been made before complainant sworn - appeal allowed on other grounds.

JTB
NSW CCA [295] 3.10.2003
Evidence Act 1995 (NSW) s.13 - sexual assault - complainant aged 8y – complainant not sworn or affirmed and no attempt made to ascertain whether complainant incapable of understanding she was under obligation to answer truthfully
Held: trial miscarried - no proper evidence from complainant

Section 18: Compellability of spouses and others in criminal proceedings generally

Khan
NSWSC (Hidden J) 22.11.1995
Evidence Act 1995 (NSW) s.18 - murder - Crown sought to call accused’s wife to give evidence on issue of provocation - wife objected to giving evidence and indicated her evidence would support accused.
Held: declined to exercise discretion under s.18(6) to force wife to give evidence - consideration of policy behind protection of spouses.

Glasby
NSW CCA [83] 22.6.2000
Evidence Act 1995 (NSW) s.18 - murder - Crown called wife who had been sentenced as accessory - wife refused to give evidence and Crown granted leave under s.38 to cross-examine.
Held: no error in compelling wife to give evidence - no right or expectation from either common law presumption or s.407 Crimes Act (now repealed) that wife would not give evidence - s.18 makes clear provision for compellability of spouse.

Fowler
NSW CCA [352] 7.9.2000
Evidence Act 1995 (NSW) s.18 - assault with attempt to rob - mother objected to giving evidence on voir dire - claimed would affect relationship with son and suffering from anxiety and depression.
Held: no error in exercise of judge’s discretion - satisfied relationship would be affected but correctly applied balancing exercise - positively satisfied desirability of mother giving evidence outweighed harm that would be done.

Section 20: Comment on failure to give evidence

Milat
NSWSC (Hunt CJ at CL) 22.4.1996
Evidence Act 1995 (NSW) s.20 - murder - permitted to make dock statement because date of arrest prior to abolishment of dock statement.
Held: where accused makes dock statement s.20 provisions do not apply - nature of permissible comment determined by common law.

Funk
NSWSC (Dowd J) 6.11.1996
Evidence Act 1995 (NSW) s.20 - Crown adduced substantial medical evidence regarding injuries suffered by the deceased to support prosecution case - contradicted accused’s version of events - accused offered no direct evidence at trial and relied upon answers given in the ERISP - defence witnesses called to rebut Crown case
Held: s.20 governed by Weissensteiner (1993) 178 CLR 217 - High Court approved comment by Trial Judge that failure of accused to give evidence could be used by the jury to more safely draw inferences as to matters already supported by evidence adduced by the Crown as to a fact or an inference of guilt - current case contrary to that arising in Weissensteiner - accused had met circumstantial and expert evidence case by participating in ERISP and adducing expert evidence at trial - judicial discretion to comment under s.20 requires the Court to weigh up inevitable prejudices of direction to jury with requirement to direct jury regarding failure of accused to give evidence where appropriate.

Mansour
NSWSC (Levine J) 26.11.1996
Evidence Act 1995 (NSW) s.20(2) - Crown proposed to tell jury that Crown evidence unequivocally proved certain facts which were uncontradicted by other evidence at trial
Held: Crown may tell jury evidence in Crown case unequivocally proves certain facts and that jury would thereby be persuaded of guilt of accused beyond reasonable doubt - additional proposed words ‘uncontradicted by other evidence at trial‘ point to or at least carry a clear implication with respect to failure of accused to give evidence and therefore constitute a prohibited comment under s 20 - jury to be directed that fact that accused has placed no material before it does not constitute any kind of admission of guilt - possible Weissensteiner direction if warranted

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.20 - comment on accused’s failure to give evidence - what amounts to comment - what comment is permissible

Fowler
NSWSC (Dowd J) 26.5.1997
Evidence Act 1995 (NSW) s.20- application for Weissensteiner direction - accused entitled to make dock statement.
Held: application by Crown for Weissensteiner direction granted in relation to five areas of evidence in which accused could have reasonably been expected to provide an explanation.

OGD
(1997) 98 A Crim R 151; 45 NSWLR 744, NSW CCA 3.6.1997
Evidence Act 1995 (NSW) s.20 - homosexual intercourse - judge told jury they were entitled to conclude failure of accused to give evidence meant nothing he could say would assist him.
Held: must make clear jury cannot use silence as an admission of guilt - appropriate to instruct jury that failure to contradict or explain incriminating evidence in circumstances where it would be reasonable to expect it to be in power of accused to do so may make it easier to accept or draw inference from evidence relied upon by Crown - ordinarily necessary to warn jury there may be reasons, unknown to them, why an accused remains silent.
Held: allowing appeal - in context of case direction given was inappropriate - did not raise with jury possibility of other reasons for silence - no attempt made to differentiate between multiple charges.

Vaughan
(1997) 98 A Crim R 239, NSW CCA 9.12.1997
Evidence Act 1995 (NSW) s.20 - drug offences - accused did not give evidence - Weissensteiner and Jones v Dunkel directions given
Held: when directing jury regarding silence of accused trial judge must consider s.20(2) and Weissensteiner - approved OGD principals in relation to appropriate comment - in this case Jones v Dunkel direction appropriate - although multiple charges, identical issue to be decided in each.

Hammond & Fitzgibbon
NSW CCA 24.2.1998
Evidence Act 1995 (NSW) s.20 - fraud offences - direction given to jury that accused’s “evidence would not have assisted in this trial”
Held: this case different from factual circumstances in OGD - comment was appropriate - confirmed the principles formulated in OGD in relation to appropriate comment

Bargwanna
NSW CCA 15.6.1998
Evidence Act 1995 (NSW) s.20 - robbery - accused did not give evidence - judge directed jury “you may draw the inference that anything (the accused) may have said would not have advanced his cause before you” - trial judge refused to direct jury there may be reasons unknown to them why accused chooses to remain silent
Held: warning is a requirement set down by OGD - should be given in all but exceptional cases - general warning only is required - Judge does not need to detail what reasons for silence may be - proviso applied - appeal dismissed.

Lewis
NSW CCA 8.9.1998
Evidence Act 1995 (NSW) s.20 - murder
Held: undue emphasis placed on failure of accused to give evidence in summing up - multiple comments.

Azzopardi
NSW CCA 1.10.1998
Evidence Act 1995 (NSW) s.20 - solicit to murder
Held: followed principles in OGD.

Davis
NSW CCA [15] 24.2.1999
Evidence Act 1995 s.20 - accused did not give evidence at trial - gave full account in ERISP.
Held: Trial judges should direct jury that there may be reasons unknown to them why an accused may remain silent in accordance with OGD and Bargwanna - not an absolute requirement - significance of omission needs to be considered in each case - no miscarriage in this case.
Held: an ERISP is far from being equivalent to sworn evidence - fact that accused has participated in an ERISP, even a detailed one, does not militate against a Weissensteiner direction
Held: Judge appropriately warned jury that ERISP was unsworn and not the subject of cross-examination
Held: Judge must direct jury that ERISP is evidence of the truth of facts asserted by accused

Merritt
NSW CCA [29] 10.3.1999
Evidence Act 1995 (NSW) s.20 - robbery - direction given in accord with Weissensteiner - no Jones v Dunkel direction given - jury instructed could not use accused’s silence to fill in gaps in Crown case.

Fernando
NSW CCA [66] 14.4.1999
Evidence Act 1995 (NSW) s.20 - murder -accused did not give evidence but co-accused did - accused’s version of events contained in ROI to police - counsel for co-accused made comment as to silence of accused by comparison to co-accused - judge directed jury that they could more readily accept evidence of Crown in matters where evidence uncontradicted and would expect accused to have been able to give evidence - also warned jury there may be other reasons for failure to give evidence.
Held: no error in including Weissensteiner direction - appropriate in this case because of importance of drawing of inferences at trial.

RPS v The Queen
(2000) 199 CLR 620; 74 ALJR 449, 3.2.2000
Evidence Act 1995 (NSW) s.20 - charged with sexual offences against daughter - Crown relied upon evidence of complainant and partial admissions to mother and grandmother - accused did not give evidence
Held (per Gaudron, Gummow, Kirby and Hayne) allowing appeal - directions to jury as to accused’s failure to give evidence breached s.20(2) - direction that accused’s evidence would not have assisted him in his trial same as saying accused chose not to give evidence because he was guilty - must give s.20(2) prohibition full operation.
Held (per Gaudron, Gummow, Kirby and Hayne) should not have directed jury that if reasonable to expect some denial of crown evidence from accused then failure of accused to give that evidence means jury can more readily accept crown evidence - seldom if ever reasonable to expect accused in criminal trial to give evidence - direction contrary to fundamental feature of criminal trial that Crown must prove case beyond reasonable doubt - case different to Weissensteiner - overruled OGD to extent it permits these directions.
Held (per Gaudron, Gummow, Kirby and Hayne) directions should have stopped at advising jury accused not bound to give evidence, that there may be many reasons why accused choose not to give evidence, that no inference should be drawn from failure to give evidence and that the crown has the onus of proving its case.
Held: (per McHugh) no reason judge cannot direct jury they can take into account failure of accused to give evidence when assessing crown evidence provided also direct them as to possible reasons for failure to give evidence and that Crown has burden of proof.
Held: (per Callinan) Weissensteiner has no application to s.20 jurisdictions - purpose of s.20(2) is to enable trial judge to make comments for protection and benefit of accused - Jones v Dunkel in criminal trials infringes s.20(2).

Kovacs
(2000) 111 A Crim R 374; NSW CCA [74] 31.3.2000
Evidence Act 1995 (NSW) s.20 - drug offences - accused did not give evidence - judge warned jury not to use failure of accused to give evidence as admission of guilt - told could be many reasons for failure to give evidence - told not to speculate.
Held: although s.20 does not require direction to be given no error in giving direction.

Fowler
NSW CCA [142] 23.5.2000
Evidence Act 1995 (NSW) s.20 - murder - made unsworn statement but did not cover all matters put to Crown witnesses - judge gave Weissensteiner direction that where facts are peculiarly within knowledge of accused, and they did not give evidence as to those facts, jury might more comfortably accept crown evidence on those matters.
Held: allowing appeal - direction inappropriate - s.20(2) does not apply but relevant discussion as to principles and cases - direction should only be given in exceptional circumstances.

Covill
(2000) 114 A Crim R 111
Evidence Act 1995 (NSW) s.20 - malicious wounding - stabbed male after he had argument with appellant’s female companion - put to female in cross examination that another man who looks like appellant stabbed victim - judge directed jury that appellant’s failure to give evidence was relevant to value or weight to be given to evidence of Crown witness.
Held: allowing appeal - comment went beyond what is permitted under s.20(2).

Dang
NSW CCA [269] 14.7.2000
Evidence Act 1995 (NSW) s.20 - knowingly concerned in importation of heroin - crown case tenuous - appellant did not give evidence.
Held: allowing appeal - in criminal case where accused stays silent almost no room for Jones v Dunkel direction especially where crown case tenuous.

Hannes
(2000) 158 FLR 359; NSW CCA [503] 1.12.2000
Evidence Act 1995 (NSW) s.20 - fraud offences - accused did not give evidence - Weissensteiner direction given - trial held before RPS handed down
Held: allowing appeal - court still bound to both Weissensteiner and RPS despite difficulties in reconciling cases - RPS means Weissensteiner direction can only be given in restricted situations - must consider whether evidence could only have come from accused and whether accused would be expected to give evidence.

Mai
(2000) 119 A Crim 327; NSW CCA [517] 19.12.2000
Evidence Act 1999 (NSW) s.20 - case heard before RPS and directions given in compliance with Weissensteiner and OGD.
Held: not suitable case for Weissensteiner direction - failed to specify particular evidence for which the “absence of an explanation” was “of sufficiently compelling character” to warrant a direction.

Bozkus
NSW CCA [68] 5.3.2001
Evidence Act 1999 (NSW) s.20 - direction given regarding failure of accused to give evidence
Held: court bound by both RPS and Weissensteiner although difficult to reconcile decisions - direction here should not have been given - this was not an exceptional case such as Weissensteiner

Bozzola
(2001) 122 A Crim 453; NSW CCA [8] 6.3.2001
Evidence Act 1999 (NSW) s.20 - direction given regarding failure of accused to give evidence - told jury they could more readily accept Crown evidence in relation to matters accused failed to give evidence on.
Held: Crown conceded direction erroneous - not one of those rare cases where evidence contradicting an apparently damming inference to be drawn from proven facts could come only from accused - proviso applied - accused had already admitted matters which were the subject of the erroneous direction - no miscarriage of justice.

Baker
NSW CCA [151] 20.4.2001
Evidence Act 1995 (NSW) s.20 - threaten to use unlawful violence
Held: allowing appeal - Judge failed to direct jury that silence of accused not to be used as evidence of guilt and that there may be many reasons why an accused does not give evidence.

Azzopardi v The Queen; Davis v The Queen
(2001) 205 CLR 50; HCA [25] 3.5.2001
Evidence Act 1999 (NSW) s.20 - solicit to murder (A) - sexual offences (D) - in different trials accused did not give evidence - Judge in both cases directed jury accused did not have to prove anything but subsequently made comments to effect that failure of accused to give evidence could mean jury more easily accept crown case.
Held: (Gaudron, Gummow, Kirby & Hayne JJ) no tension between Weissensteiner and RPS - Weissensteiner comment appropriate in cases where “…there is a basis for concluding that … there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused …”[64] - Weissensteiner comment appropriate in rare and exceptional cases - “… only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Once that is appreciated the supposed tension between Weissensteiner and RPS disappears. In Weissensteiner the comment related to the absence of evidence of additional facts peculiarly within the knowledge of the accused - in RPS there was no question of any additional facts known only to the accused, merely the failure to contradict aspects of the prosecution case.”[68]
Held: (Gaudron, Gummow, Kirby & Hayne JJ) - any Weissensteiner comment should refer to “failure to give explanation” not “failure to give evidence”.
Held: (Gaudron, Gummow, Kirby & Hayne JJ) - should make clear to jury comment only and that they are therefore free to disregard it.
Held: (Gaudron, Gummow, Kirby & Hayne JJ) - in both cases directions erroneous but in Davis leave to appeal refused because of strength of Crown case.
Held: (Gleeson CJ - in dissent) cannot reconcile RPS and Weissensteiner - Weissensteiner should be followed - “no justification for distinguishing between a failure to give or call evidence about some additional fact and a failure to give or call evidence about some fact already the subject of evidence. And there is no justification for limiting the occasion for comment to facts known only to the accused…” - “… it is difficult to understand why it is more reasonable to expect an accused to explain away circumstantial evidence than to contradict direct evidence.” - s.20(2) only prohibits comments suggesting failure to give evidence demonstrates consciousness of guilt - does not prohibit explaining to jury process of reasoning adverse to accused - comment in both cases permissible.

Giri
(2001) 121 A Crim 568; NSW CCA [197] 12.6.2001
Evidence Act 1999 (NSW) s.20 - whether directions invited jury to conclude Crown case stronger because of silence of accused
Held: directions similar to offending parts of summing up in both RPS and Azzopardi - not a Weissensteiner case - whether accused withdrew from assault as he claimed not something peculiarly within knowledge of accused because there were witnesses at scene - fact that accused claims an interpretation not supported by eye witnesses does not make it a Weissensteiner case - proviso applied because of strength of Crown case.

Yeo
NSW CCA [270] 17.7.2001
Evidence Act 1999 (NSW) s.20 - murder - female appellant and former de facto charged with murder of appellant’s lover - DNA of victim found in flat appellant shared with victim suggesting body dismembered there - after charged appellant said “sorry” to male co-offender - co-offender gave evidence but appellant did not
Held: directions similar to offending parts of summing up in both RPS and Azzopardi - not a Weissensteiner case - on Crown case both appellant and co-offender aware DNA in flat - comment after arrest also in knowledge of co-offender - proviso not applied.

Law
(2001) 122 A Crim R 542; NSW CCA [291] 27.7.2001
Evidence Act 1999 (NSW) s.20 - drug offences
Held: directions complied with Weissensteiner - Azzopardi made clear such comments can only be given as comments and not as directions - (per Meagher: state of authorities suggest best not to refer to silence of accused at all)

SMR
[2002] NSWCCA 258, 1.7.2002
Evidence Act 1999 (NSW) s.20 – sexual assault on elderly woman - discretion to give warning on accused's silence at court - no necessity to do so on facts, given that ROI was constituted by denials - no case for leave under rule 4 was made out

Yammine & Chami
(2002) 132 A Crim R 44; NSW CCA [289] 23.7.2002
Evidence Act 1999 (NSW) s.20 - accused did not give evidence - Crown comment that only evidence was by prosecution witnesses and no evidence to support versions put forward by defence counsel - whether Crown breached s.20.
Held: no breach of s.20 - Siebel (1991) 59 A Crim R 105 applied.

Nguyen
NSW CCA [342] 21.8.2002
Evidence Act 1999 (NSW) s.20 - robbery in company - accused did not give evidence - judge directed jury ERISP not the same as sworn evidence - whether judge should have told jury there may be many reasons why accused would not give evidence
Held: no such direction required in circumstances of case - no Jones v Dunkeld direction given

Sullivan
NSW CCA [505] 16.12.2002
Evidence Act 1999 (NSW) s.20 – dangerous driving occasioning GBH – accused did not give evidence – comment made by trial judge that "he might not want to fill in some gaps that they (sic) might think would be filled in if he went into the witness box”
Held: ground of appeal made out but proviso applied.

Richards
(2002) 128 A Crim R 204, [2002] NSWCCA 38
Evidence Act 1999 (NSW) s.20 – no directions given as to silence of accused
Held: failure to overcome Rule 4 – no miscarriage of justice – noted Azzopardi did not say direction mandatory

Colville
(2003) 137 A Crim R 543, [2003] NSWCCA 23
Evidence Act 1999 (NSW) s.20 - trial judge merely directed jury as to onus being on Crown to prove guilt and not on the accused to prove he was not guilty
Held: do not need to take statements from Azzopardi and use them as a “routine check-list to be intoned mantra-like to the jury” – need to give jury “clear and circumspect, but sensible and practical, directions having a sensible and practical regard to the just requirements of particular case”

Park
[2003] NSWCCA 203; 23.7.2003
Evidence Act 1999 (NSW) s.20 - murder
Held: Azzopardi directions desirable but not necessarily required

Skaf
NSW CCA [36] 7.4.2004
Evidence Act 1999 (NSW) s.20 – Four appellants convicted of multiple sexual assault offences – during cross-examination of defence witness Crown indicated he would not have opportunity to cross-examine appellant – comment made after counsel indicated appellant would not be giving evidence
Held: Appeal dismissed – Comment unnecessary and unfortunate but did not breach s.20(2) – did not go far enough to refer to fact that accused had right to give evidence but failed to do so – appropriate instructions given as to failure of accused to give evidence

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.20 – G, H and S convicted of multiple sexual assault offences - S gave evidence – in address to jury counsel for G referred to allegations put to S during cross-examination – TJ immediately directed jury there was no evidence supporting allegations and that in absence of evidence from G they could assume matters contained in allegations untrue – whether improper comment on failure of G to give evidence
Held: Appeal dismissed – Comment on failure of G to give evidence not improper – dealt with improper suggestion contained in address of counsel

Macris
(2004) 147 A Crim R 99; [2004] NSW CCA 261; 3.8.2004
Evidence Act 1999 (NSW) s.20 – drug offences – sole issue was whether accused in possession of drugs
Held: Appeal allowed
“[29] His Honour made no reference in his summing up to the requirements of the Azzopardi direction that the jury be warned that the accused’s silence in court may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt. This omission involves error. Although the Azzopardi direction does admit of cases where a direction in its terms may not be necessary (“…almost always be desirable…”) there is nothing in the facts of this case which would make such a direction inappropriate.
[30] I therefore conclude that his Honour’s direction was deficient in that it made no reference to that part of the Azzopardi direction that the accused’s silence may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.”

Villar & Zugecic
NSW CCA [302] 3.9.2004
Evidence Act 1999 (NSW) s.20 – kidnapping and sexual offences – one of three accused gave evidence – comment by prosecution in address amounted to inadvertent breach of s.20(2) – “He and each of the other accused are presumed innocent, unless and until they are proven to be guilty. They don’t have to prove anything in this trial, and they don’t have to give evidence and Mr Villar didn’t have to give evidence.” (emphasis added)
Held: Appeal dismissed – No error in refusing to dismiss jury – error was inadvertent and did not cause miscarriage – jury already aware accused could have given evidence because one accused did so – careful directions regarding failure to give evidence given

Wilson
NSW CCA [20] 15.2.2005
Evidence Act 1999 (NSW) s.20 – Manslaughter of young child by foster mother – accused did not given evidence – direction given under Azzopardi – direction did not include warning that there may be many reasons for failure of an accused to give evidence (OGD) – failure to give third and fourth of suggested directions under Azzopardi - direction that absence of evidence from accused cannot be used to fill gaps in evidence of Crown and that absence of evidence cannot be a make-weight when assessing whether Crown has proved its case
Held: Appeal dismissed – direction under OGD not required unless there is a Jones v Dunkel suggestion to rebut – directions under Azzopardi desirable but not required – suggestion in Macris [2004] NSW CCA 261 that all directions must be given wrong – in circumstances of this case third and fourth directions not desirable and absence did not cause miscarriage of justice

Newland
(1997) 98 A Crim R 455, NSW CCA 5.12.1997
Evidence Act 1995 (NSW) s.20 - accessory after the fact to BES - Crown called one principal offender to give evidence against accused - Crown indicated to jury that second principal offender refused to give evidence for Crown - Crown put Jones v Dunkel argument to jury in relation to failure of accused to call second principal offender - Judge made similar direction
Held: case not appropriate for Jones v Dunkel direction - misleading to tell jury second principal offender would not give evidence for Crown - suggested witness had a choice as to whether or not to give evidence and did not consider issues such as s.38 - unfair for Crown to press for Jones v Dunkel direction - Judge should not have directed jury to consider whether Crown or accused “should have’ called witness - no basis for making such a decision - jury should have been told not to speculate on why second principal offender did not give evidence.

Scott
(2000) 112 A Crim R 543, NSW CCA [187], 23.5.2000
Evidence Act 1995 (NSW) s.20 - drug offences - Judge gave Jones v Dunkel direction in relation to accused’s failure to call three witnesses - witnesses allegedly drug dealers criminally complicit in offences
Held: allowing appeal - Judge erred in giving direction - not reasonable to suggest accused should have called witnesses - emphasis in cases on caution required before giving direction.

Taufua
NSW CCA [205] 30.7.2000
Evidence Act 1995 (NSW) s.20 - Jones v Dunkel direction given in relation to accused’s failure to call co-accused
Held: allowing appeal - not reasonable to expect accused to call co-accused - need to exercise great caution when considering who should call witnesses - “cannot be stressed too strongly that the utmost caution must be exercised in seeking to apply these principles or rule to criminal trials.”

Zreika
NSW CCA [57] 5.3.2001
Evidence Act 1999 (NSW) s.20 - drug offences - Jones v Dunkel direction given in relation to failure of accused to call brother and nephew to say they also had access to house where drugs found.
Held: allowing appeal - direction should at least have been accompanied by warning about possible complications if witnesses had been called and claimed privilege from self-incrimination, possibility that witnesses may lie to protect themselves and other possible reasons for failure to call witnesses - may be doubted it will ever be appropriate to give Jones v Dunkel direction against accused in criminal trial where absent witnesses may be involved in offence.

Guinan
(2001) 121 A Crim R 196; NSW CCA [55] 6.3.2001
Evidence Act 1999 (NSW) s.20 - drug offences - sent money to brother in England and received two packages of ecstasy by mail - Crown commented to jury they may find it strange that one brother was called to give evidence but brother in England was not - immediately made further comment that accused does not have to prove anything.
Held: initial comment should not have been made but neutralized by subsequent comment.

Gardner
(2001) 123 A Crim R 439; NSW CCA [381] 25.9.2001
Evidence Act 1995 (NSW) s.20 - Crown Prosecutor should not have made comment to the jury re failure of accused’s mother to give evidence.

GEC

Use of Jones v Dunkel

Noonan
NSW CCA [150] 1.5.2002
Evidence Act 1999 (NSW) s.20(3) Crown addressed on the failure of accused to call his wife - direct breach of s.20(3)
Held: judge adequately dealt with breach by telling jury not to speculate on failure to call wife and advising them of possible and obvious reasons why she was not called

Dyers v The Queen
(2002) 210 CLR 285; HCA [45] 9.10.2002
Evidence Act 1999 (NSW) s.20 sexual assault trial - whether judge erred in giving jury Jones v Dunkel direction in relation to witnesses not called by Crown or appellant
Held: appeal allowed - in view of RPS and Azzopardi direction should not have been given - (per Gaudron and Hayne JJ) general rule is Trial Judge should not direct jury that accused would be expected to give evidence personally or call others to give evidence - same rule applies to the Crown - reasoning of RPS and Azzopardi applies to calling of witnesses

Tang
NSW CCA [357] 19.12.2003
Evidence Act 1999 (NSW) s.20 murder – co-accused gave evidence that appellant phoned friend after murder and admitted stabbing – evidence established phone call made – friend not called – Jones v Dunkel direction given against appellant
Held: appeal allowed – followed Dyers – direction not appropriate

Nick Boyden “Jones v Dunkel in the Criminal Trial; - Witnesses Other Than the Accused” in Bar News Winter 2002 p.18 (www.nswbar.asn.au)

Division 3: General rules about giving evidence

Section 26: Court’s control over questioning witnesses

Too
NSWSC (Badgery-Parker J) 26.7.1996
Evidence Act 1995 (NSW) s.26 - murder - Crown witness lived in Queensland and unable to travel - power of court to order evidence be taken via video link.
Held: legislature did not intend that ordinary manner of giving evidence be departed from unless exceptional circumstances - s.11 and 26 do not create general power to control manner of giving evidence - possibility of orders by consent under s.184 - evidence taken on commission under Evidence on Commission Act 1995 (NSW) - admissibility not determined at this stage

Section 29: Manner and form of questioning witnesses and their responses

Pirrottina & Bickell
NSWSC (James J) 20.3.1997
Evidence Act 1995 (NSW) - s.29(4) admissibility of pictorial flow chart tendered by Crown - chart depicted alleged movements of two co-accused and Crown witness on date of alleged offences - Crown submitted chart admissible as aid to jury in their comprehension of Crown case - defendants objected to chart as one-sided and presenting Crown witness’ version ‘at its best’
Held: chart inadmissible - events not a complicated series of business transactions or matters likely to tax the comprehension of an ordinary juror - chart solely concerned with Crown’s version of events - even if admissible under s.29(4) inadmissible pursuant to discretion under s.137

Section 32: Attempts to revive memory in court

Dean (No. 2)
NSWSC (Dunford J) 12.3.1997
Evidence Act 1995 (NSW) s.32 - murder of wife - mother of deceased gave evidence for Crown - could not recall contents of statement to police made on day of killing - witness told police deceased told her accused threatened to kill her - witness under considerable strain when giving evidence - Crown sought leave for witness to refer to police statement.
Held: witness permitted to refer to statement provided she agreed statement accurate at time she made it - witness required to give evidence in direct speech.

Cassar & Sleiman (No.28)
NSWSC (Sperling J) [651] 9.7.1999
Evidence Act 1995 (NSW) s.32 - Crown sought leave to allow police officer to refresh memory from running sheet - witness took notes from motel registration form and faxed notes to another police officer - second police officer created running sheet from facsimile - original registration form, notes and facsimile lost.
Held: leave granted although no compliance with s.32(2)(b).

Yammine and Chami
(2002) 132 A Crim R 44; NSW CCA [289] 23.7.2002
Evidence Act 1995 (NSW) s.32 – supply prohibited drug – leave granted for witness to refresh memory from transcript of interview
Held: failure of trial judge to refer to s192(2) before granting leave under s32 did not indicate His Honour had not considered necessary matters under s192 – permissible that leave under s 32 granted in this case.

Section 36: Person may be examined without subpoena or other process