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:

1. evidence in relation to which part 3.2 (hearsay evidence) or 3.4 (admissions) applies,

2. identification evidence,

3. evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

4. 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,

5. evidence given in a criminal proceeding by a witness who is a prison informer,

6. 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,

7. 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 s116 identification warningin a case where the reliability of the identification evidence is in issue (Dhanhoav The Queen).

The direction required under s116 is that there is a “special need” for caution before accepting identification evidence.

The judge must explain why:

1. there is a special need for caution — why identification evidence in general may be unreliable, thus explaining why there is a special need for caution:RvClarkeat428,and

2. the identification evidence in the particular case may be unreliable, by pointing out the particular matters in that case which may cause it to be unreliable: ss116(1), 165(2).

Warningis to be given in respect of matters thatmaycause the identification evidence to be unreliable, as distinguished from matters that necessarilymadeit unreliable (RvRiscuta). The common law required reference to be made only to “any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence” (Domicanv The Queen). This was recognition by the High Court inDomicanv The Queenof the need for some degree of reality to be taken into account in relation to this issue, and to make it unnecessary for the judge to refer to every weakness, however slight.

Domican v r (1992) 173 clr 555

Facts: Tom domican was convicted of the intent to shoot and murder Christopher Flannery. The main evidence against the accused came from the victim’s wife. She saw someone wearing a wig and false moustache driving past their house and shooting. She contended three weeks later she saw the gunman and recognised him despite him not wearing the disguise. She further added she saw the accused on tv and recognised him from the shooting. The question was whether the jury had been given a warning about the unreliability of her evidence. Although it was assumed her evidence was unreliable, the high court held a specific warning should have been given

Warning regarding delay evidence

Section 125b applies where there is a jury. If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

Crofts v the queen (1996) 186 clr 427

Warning was given that the delay in complaining or absence of a complaint may be taken into account in evaluating the evidence of the complainant and in...

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