20Comment 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 a defendant to give evidence. (3) 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 the defendant was, guilty of the offence. (4) 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 domestic partner; or (b) a parent or child of the defendant. (5) However, unless the comment is made by another defendant in the proceeding, a comment mentioned in subsection (4) must not suggest that the domestic partner, parent or child failed to give evidence because— (a) the defendant was guilty of the offence; or (b) the domestic partner, parent or child believed that the defendant was guilty of the offence. (6) If— (a) 2 or more people are being tried together for an indictable offence; and Oaths and affirmations Division 2.1.2 (b) comment is made by any of them on the failure of any of them or of the domestic partner, or a parent or child, of any of them to give evidence; the judge may, in addition to commenting on the failure to give evidence, comment on any comment mentioned in paragraph (b).