20Comment on failure to give evidence

### 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)](#GS20@Gs2@EN) 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) [*\[Section 20 Subsection (4) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004\]*](/view/html/inforce/2004-01-01/act-2003-045#JS1@Ja24@GC4@Hpa@EN) the defendant's spouse; or > > > > > > > (b) a parent or child of the defendant. > > > (5)  [*\[Section 20 Subsection (5) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004\]*](/view/html/inforce/2004-01-01/act-2003-045#JS1@Ja24@GC4@Hpb@EN) Unless the comment under [subsection (4)](#GS20@Gs4@EN) 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) [*\[Section 20 Subsection (5) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004\]*](/view/html/inforce/2004-01-01/act-2003-045#JS1@Ja24@GC4@Hpc@EN) 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) [*\[Section 20 Subsection (6) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004\]*](/view/html/inforce/2004-01-01/act-2003-045#JS1@Ja24@GC4@Hpd@EN) 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)](#GS20@Gs6@Hpb@EN) .