<p>4.1 - The Accused as a Witness1 4.1.1 - Bench Notes</p><p>Warning! The law relating to directions on the accused giving evidence was modified by the Jury Directions and Other Acts Amendment Act 2017. There has not yet been appellate guidance on the operation of these provisions. These Bench Notes should be used with caution. Further information about the Jury Directions and Other Acts Amendment Act 2017 is available in the Department of Justice and Regulation report, ‘Jury Directions: A Jury-Centric Approach Part 2’.</p><p>1. These Notes address the general directions that may be given when the accused has chosen to give evidence. They do not address any specific directions that may be required where the accused is cross- examined about matters such as his or her character. Those issues are addressed in other chapters in Part 4 of the Charge Book (see, e.g., Bench Notes: Character Evidence).</p><p>When Can the Accused Give Evidence?</p><p>2. As the accused is a competent, but not compellable, witness for the defence (Evidence Act 2008 ss12, 17), in every criminal trial the accused will have a choice about whether or not to give evidence.</p><p>3. While the accused’s evidence should usually be given before the evidence of any other defence witnesses (as this will prevent the jury from thinking that the accused tailored his or her evidence to fit with the other evidence in the case: RPS v R (2000) 199 CLR 620), this is not mandatory (Criminal Procedure Act 2009 s231(4)).</p><p>Effect of Jury Directions Act 2015</p><p>4. The law on jury directions about an accused giving evidence has been changed by the Jury Directions Act 2015 following amendments by the Jury Directions and Other Acts Amendment Act 2017, which commenced on 1 October 2017.</p><p>5. The Act:</p><p> Prohibits the trial judge, prosecution and defence from saying or suggesting to the jury:</p><p> o That an interest in the outcome of the trial is a factor to take into account when assessing the evidence of witnesses generally; or</p><p>1 This document was last updated on 1 October 2017. 1 o That the evidence of an accused is less credible, or requires more careful scrutiny, because any person who is on trial has an interest in the outcome of that trial (Jury Directions Act 2015 s44H);</p><p> Provides that the defence may request that the judge direct the jury on the accused giving evidence or the accused’s interest in the outcome of the trial; and specifies what the judge must explain in such directions (Jury Directions Act 2015 s44I);</p><p> In relation to the accused’s evidence, prohibits directions about:</p><p> o Whether the accused is under more stress than any other witness; or</p><p> o that the accused gave evidence because a guilty person who gives evidence will more likely be believed; or</p><p> o that the accused gave evidence because an innocent person can do nothing more than give evidence (Jury Directions Act 2015 s44J); and</p><p> Abolishes any rule of common law that:</p><p> o prohibits a judge from directing a jury on the interest a witness or an accused may have in the outcome of a trial; and</p><p> o requires or permits a judge to direct a jury about whether the accused is under more stress than any other witness; or that the accused gave evidence because a guilty person who gives evidence will more likely be believed, or an innocent person can do nothing more than give evidence (Jury Directions Act 2015 s44K).</p><p>Content of Directions</p><p>6. The need for any direction about the accused as a witness depends on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of any request (Jury Directions Act 2015 ss14 - 16). See Bench Notes: Directions Under Jury Directions Act 2015 for information on when directions are required.</p><p>7. Jury Directions Act 2015 s44I, as amended in 2017, sets out two types of directions about an accused giving evidence:</p><p> a) A direction about the giving of evidence by the accused (Jury Directions Act 2015 s44I(1)(a)); and 2 b) A direction about the interest the accused has in the outcome of the trial (Jury Directions Act 2015 s44I(1)(b)).</p><p>8. While s44I(2) sets out four directions that must be given when the defence requests a direction “referred to in subsection (1)”, the approach adopted in this Charge Book is that the directions in s44I(2)(a) – (c) are relevant when the defence requests a direction about the accused giving evidence under s44I(1)(a), while the direction in s44I(2)(d) is only relevant when the defence requests a direction under s44I(1)(b).</p><p>9. Therefore, where the defence has requested a direction about the accused giving evidence, the judge must explain that:</p><p> The accused is not required to give evidence; and</p><p> The fact that the accused has given evidence does not change the prosecution’s obligation to prove that the accused is guilty; and</p><p> The jury must assess the evidence of the accused in the same way that the jury assesses the evidence of any other witness (see Assessing Witnesses: Bench Notes for information about the assessment of other witnesses’ evidence) (Jury Directions Act 2015 s44I(2)(a) – (c));</p><p>10. When the defence requests a direction about the accused’s interest in the outcome of the trial, the judge must explain that:</p><p> The jury must not give less weight to the evidence of the accused just because any person who is on trial has an interest in the outcome of that trial (Jury Directions Act 2015 s44I(2)(d)).</p><p>11. The directions provided by s44I(2) largely reflect the common law (see Robinson v R (No 2) (1991) 180 CLR 531; R v D’Arcy (2001) 122 A Crim R 268; R v Goldman [2007] VSCA 25).</p><p>12. Under common law, a direction that the jury must not give less weight to the accused’s evidence just because a person who is on trial has an interest in the outcome of the trial would only be given in exceptional circumstances, to correct an improper prosecution argument. Alternatively, the direction was sometimes necessary as a corrective measure when it was appropriate to invite the jury to consider the interest of a witness other than the accused in the outcome of the case and it was necessary to ensure the jury did not apply the same reasoning to the accused’s evidence (De Rosa v Western Australia (2006) 32 WAR 136 at [44], [56]; R v Rezk [1994] 2 Qd R 321; R v Parsons & Brady [2015] SASCFC 183). </p><p>13. While the direction may now be requested by defence counsel in accordance with Part 3 of the Jury Directions Act 2015, judges should</p><p>3 exercise caution before giving this direction due to the risk of the direction backfiring and giving emphasis to the accused’s interest in the outcome of the trial. </p><p>14. Given that the prosecution, defence counsel and the judge are prohibited from making a general statement that an interest in the outcome of the trial is a factor to take into account when assessing the evidence of witnesses (see Jury Directions Act 2015 s44H, discussed below), there will be a reduced need for a curative direction that interest in the outcome is a factor that can be relevant to witnesses, but not the accused.</p><p>Other General Direction Potentially Relevant to the Accused</p><p>15. At common law, the judge was not prohibited from reminding the jury that people often attempt to make excuses for their wrongful conduct, if it was be relevant to do so in a particular case. Such a statement did not single out the evidence of the accused or undermine the presumption of innocence (R v Franco (2006) 168 A Crim R 322; Rowbottom v R (2003) 142 A Crim R 513). Section 44J does not appear to preclude this type of direction. See also Bench Notes: Incriminating Conduct and Jury Directions Act 2015 Part 4, Division 1. </p><p>Prohibited directions</p><p>16. Jury Directions Act 2015 s44J prohibits three directions which were usually given at common law about the evidence of an accused person:</p><p> That in assessing the evidence of the accused, the jury should bear in mind that the accused may be under more pressure than other witnesses;</p><p> That the accused may have given evidence because a guilty person who gives evidence is more likely to be believed; and</p><p> That the accused may have given evidence because an innocent person can do nothing more than give evidence (compare R v Haggag (1998) 101 A Crim R 593; R v Buckley (2004) 10 VR 215).</p><p>Prohibited statements</p><p>17. Jury Directions Act 2015 s44H, as amended in 2017, provides that the trial judge, the prosecution and defence counsel must not say or suggest to the jury that:</p><p> c) An interest in the outcome of the trial is a factor to take into account in assessing the evidence of witnesses generally; or</p><p> d) The evidence of an accused is less credible, or requires more </p><p>4 careful scrutiny, because any person who is on trial has an interest in the outcome of that trial. </p><p>Interest in the Outcome of the Case</p><p>18. The judge, prosecution and defence must not suggest that an interest in the outcome of the trial is a factor to take into account in assessing the evidence of witnesses generally (Jury Directions Act 2015 s44H(a), as amended in 2017).</p><p>19. While the judge, prosecution and defence counsel must not suggest that an interest in the outcome of the trial is a general factor relevant to assessing witnesses, they may suggest that a witness has a particular interest in the outcome of that trial, and that particular interest does or may affect the witness’ credibility (Note to Jury Directions Act 2015 s44H).</p><p>20. Jury Directions Act 2015 s44H Note 2 also mentions the accused. It is likely that an accused’s particular interest in the outcome of a case will only be relevant in exceptional cases where the accused may have a motive to lie which could operate independently of the outcome of the case. For example, an interest in protecting a co- accused family member, or a fear of the true offenders. Where it is suggested than an accused has such a particular interest, the judge should invite submissions from the parties on the appropriate direction to be given.</p><p>21. While care must be taken in construing s44H(a) with reference to its common law predecessors, particularly given s44K(1) and its first Note, the experience of the common law may provide guidance on the meaning of particular interest.</p><p>22. At common law, it was recognised that when a jury was assessing the evidence of any witness, including an accused, the jury was entitled to consider whether “some particular interest or purpose … will be served or promoted in giving evidence in the proceeding” (Robinson v R (No 2) (1991) 180 CLR 531).</p><p>23. However, it was not permitted for a judge to direct the jury that it should “evaluate evidence on the basis of the interest of witnesses in the outcome” because “[e]xcept in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown” (Robinson v R (No 2) (1991) 180 CLR 531).</p><p>24. The rationale for this prohibition was that it undermined the presumption of innocence and distracted the jury from its function of assessing whether the prosecution had proved its case beyond reasonable doubt (Hargraves & Stoten v R [2011] HCA 44).</p><p>25. A direction to the jury to consider the accused’s interest in the outcome undermined the presumption of innocence and risked </p><p>5 circular reasoning because it invited the jury to assume that the accused was guilty and so had a motive to lie as a basis for giving the accused’s evidence less weight and to use that as a stepping stone to a conclusion of guilt (R v Haggag (1998) 101 A Crim R 593. See also R v FAR [1996] 2 Qd R 49).</p><p>26. Under the common law, a judge could invite the jury to consider a witness’ interest in the outcome of the proceeding as a factor that could affect the witness’ credibility, provided it was made clear that this consideration could not be applied to the accused (R v Parsons & Brady [2015] SASCFC 183; De Rosa v WA [2006] WASCA 57).</p><p>27. In light of this history, it is likely that Jury Directions Act 2015 s44H(a) prohibits any general invitation by the prosecution, defence counsel or the judge to consider a witness’ interest in the outcome as a factor relevant to the witness’ credibility. However, parties remain able to invite the jury to give less weight to a witness’ evidence due to identified considerations specific to that individual (see Jury Directions Act 2015 s44H Note 2). Where the identified consideration could also apply to the accused, the judge should invite submissions from the parties on whether any direction quarantining this consideration from applying to the accused is necessary, such as a direction under s44I(2)(d).</p><p>Credibility of Accused and Need for Careful scrutiny</p><p>28. The judge, prosecution and defence also must not suggest that the accused’s evidence is less credible, or requires more careful scrutiny, because any person who is on trial has an interest in the outcome of that trial (Jury Directions Act 2015 s44H(b), as amended in 2017). </p><p>29. This is consistent with common law principles, which held that it was impermissible for a judge to single out the accused as a person whose evidence required greater scrutiny for no reason other than that he or she was the accused. Such a direction had the effect of treating the accused as a class of suspect witness like an accomplice (see Robinson v R (No 2) (1991) 180 CLR 531; Hargraves & Stoten v R [2011] HCA 44; R v Stafford (1993) 67 ALJR 510; R v Ramey (1994) 68 ALJR 917; R v Osland [1998] 2 VR 636).</p><p>30. Under common law, it was permissible for the accused to be listed as one of a number of witnesses whose evidence must be carefully examined due to its importance in deciding the issues in the trial. Such an approach did not undermine the presumption of innocence and was not prejudicial to the accused, as it placed the accused’s evidence in the same category as the evidence given by all other crucial witnesses (Martinez v Western Australia (2007) 172 A Crim R 389). The issue has not yet been considered in relation to Jury Directions Act 2015 s44H.</p><p>31. At common law, the judge could tell the jury to “carefully consider” an issue that has arisen in the trial, even if the accused is the only </p><p>6 witness who has given evidence about that issue, as long as the warning attaches to the issue itself, rather than the fact that it is the accused who has given evidence about that issue (R v Goodman [2007] VSCA 25; R v Franco (2006) 168 A Crim R 322). </p><p>32. While it has not been decided, it appears likely that Jury Directions Act s44H(b) operates in the same manner as the common law prohibition. As such, it does not prevent directions about the need for scrutiny based on the importance of evidence on an issue. As at common law, it is likely that the provision only prohibits directions which state that there is a need for scrutiny of the accused because of his or her status as an accused.</p><p>Joint Trials</p><p>33. In trials of two or more accused, the judge must carefully consider the competing demands of justice, especially where one accused gives evidence and another accused stands mute (R v Webb (1994) 181 CLR 41). </p><p>34. At common law, it was suggested that the judge might: </p><p> Omit or modify the standard direction about evaluating the evidence of an accused (because such a direction risks prejudicing any accused who did not give evidence);</p><p> Warn the jury not to attach too much significance to the election of one accused to stand mute; and </p><p> Tell the jury to make sure that they approach the evidence of the other accused in a balanced and appropriate fashion (R v Phillips [1997] 1 VR 558).</p><p>35. Under the Jury Directions Act 2015, as amended in 2017, the judge will need to consider whether the statutory directions in s44I(2) pose any risk of prejudice to an accused who stands mute. The judge should invite submissions from both parties about whether any directions need to be modified to ensure fairness to both accused.</p><p>36. The judge should also take into account Jury Directions Act 2015 s42, which prohibits the judge, prosecution and defence counsel from suggesting that, because an accused did not give evidence, the jury may conclude that the accused is guilty or is more likely to be guilty, or would not have given evidence that would have assisted his or her case. See Bench Notes: Defence Failure to Call Witnesses for further information. </p><p>37. Particular care must also be taken in relation to accomplice warnings. See Bench Notes: Unreliable Witness Warnings: General Principles and Bench Notes: Criminally Concerned Witnesses for further information.</p><p>7 8</p>