Comment on failure to give evidence
20 Comment on failure to give evidence
This section applies only in a criminal proceeding for an indictable offence.
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 had, or believed that he or she had, committed the offence concerned.
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:
the defendant’s spouse or de facto partner; or
a parent or child of the defendant.
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:
the defendant had committed the offence concerned; or
the spouse, de facto partner, parent or child believed that the defendant had committed the offence concerned.
If:
2 or more persons are being tried together for an indictable offence; and
comment is made by any of those persons on the failure of any of those persons or of the spouse or de facto partner, or a parent or child, of any of those persons to give evidence;
the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b).
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