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EVIDENCE ACT 2001 - SECT 20 Comment on failure to give evidence

EVIDENCE ACT 2001 - SECT 20

Comment on failure to give evidence

(1)  This section only applies in a criminal proceeding for an indictable offence.
(2)  The judge or any party, other than the prosecutor, may comment on the failure of a defendant to give evidence.
(3)  Unless the comment under subsection (2) 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.
(4)  The judge or any party, other than the prosecutor, may comment on the failure to give evidence by a person who, at the time of the failure, was –
(a) the defendant's spouse; or
(b) a parent or child of the defendant.
(5)  Unless the comment under subsection (4) is made by another defendant in the proceeding, the comment must not suggest that the spouse, parent or child failed to give evidence because –
(a) the defendant was guilty of the offence concerned; or
(b) the spouse, parent or child believed that the defendant was guilty of the offence concerned.
(6)  If –
(a) 2 or more persons are being tried together for an indictable offence; and
(b) comment is made by any of those persons on the failure of any of those persons or of the spouse, or a parent or child, of any of those persons to give evidence –
the judge, in addition to commenting on the failure to give evidence, may comment on any comment of a kind referred to in paragraph (b) .