20. Comment on failure to give evidence

20. Comment on failure to give evidence

(1) This section applies only in a criminal proceeding for an indictable offence.

(2) 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.

(3) The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was-

(a) the defendant's spouse or de facto partner; or

(b) a parent or child of the defendant.

(4) However, unless the comment is made by another defendant in the
proceeding, a comment of a kind referred to in subsection (3) must not suggest that the spouse, de facto partner, parent or child failed to give evidence because-

(a) the defendant was guilty of the offence concerned; or

(b) the spouse, de facto partner, parent or child believed that the defendant was guilty of the offence concerned.

The Joint Report offers no explanation as to why this protection extends only to indictable offences. Whether a residual common law prohibition on adverse inferences remains or this provision represents a codification of the law is debatable.

Section 20 replaces a similar one previously found at s 399(3) of the Crimes Act 1958. Discussing that section, Buchanan and Ashley JJA in R v Secombe [2010] VSCA 58 quoted King CJ in R v Siebel (1992) 57 SASR 558 in saying:

It is lawful, in my opinion, for counsel for the prosecution to make the point to the jury that the only version of the facts before them is that proved by the prosecution witnesses and, if counsel for the defence has engaged in speculation as to alternative scenarios, that there is no evidence to support such alternative scenarios. Any comment, however, that the accused person has failed to contradict prosecution witnesses or to provide an alternative version of events, or that he has not given evidence, must, in my opinion, amount to a prohibited comment.

See also R v Barron [1975] VR 496, and of course Weissensteiner v The Queen (1993) 198 CLE 217.