This is an extract of our Warnings Comments And Directions document, which we sell as part of our Evidence and Criminal Procedure Notes collection written by the top tier of University Of Technology Sydney students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence and Criminal Procedure Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
WARNINGS, COMMENTS & DIRECTIONS Judicial comments The main area where judicial comments are the subject of judicial provision is where there is absent evidence. Under section 20 the judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned. Weissensteiner v the queen (1993) 178 clr 217 A direction by a trial judge to the jury that the jury may more confidently accept the prosecution version of the facts where the accused, who alone has peculiar knowledge of the relevant facts chooses not to testify Jones v dunkel (1959) 101 clr 298 The rule in Jones v Dunkel (1959) relates to the unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn Judicial directions Directions guide the jury in the use of and against certain kinds of evidence. Judicial warnings The purpose of a judicial warning is to prevent a miscarriage of justice. It is the most serious kind of statement from trial judge to a jury. Some warnings are made under section 165 and others come from the common law. Section 165 contains the general power of a trial judge to give the warning to the jury about the unreliability of evidence including the following kinds of evidence: (a) evidence in relation to which part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person---evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. WARNING REGARDING IDENTIFICATION EVIDENCE A trial judge is required to give a s 116 identification warning in a case where the reliability of the identification evidence is in issue (Dhanhoa v The Queen).
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