32Direction on unreliable evidence

32 Direction on unreliable evidence

(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on evidence of a kind that may be unreliable.

(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify—

(a) the significant matters that may make the evidence unreliable; or

(b) if the request concerns evidence given by a child, the significant matters (other than solely the age of the child) that may make the evidence of the child unreliable.

(3) In giving a direction referred to in subsection (1), the trial judge must—

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of—

(i) the significant matters that the trial judge considers may cause the evidence to be unreliable; or

(ii) if the direction concerns evidence given by a child, the significant matters (other than solely the age of the child) that the trial judge considers may make the evidence of the child unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

1 Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

2 Section 115(7) of the Evidence Act 2008 and Division 4 of this Part provide for warnings and information about identification evidence.

3 Section 164(4) of the Evidence Act 2008 provides that in a criminal proceeding the judge must not—

(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or

(b) give a direction relating to the absence of corroboration.

4 Section 164(5) of the Evidence Act 2008 provides that in a criminal proceeding for the offence of perjury or a similar or related offence, the judge must direct the jury that it may find the accused guilty only if it is satisfied that the evidence proving guilt is corroborated.

S. 33 (Heading) amended by No. 42/2018 s. 29.