41Direction on accused not giving evidence or calling witness

41 Direction on accused not giving evidence or calling witness

(1) If the accused does not give evidence or call a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.

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

(a) the prosecution's obligation to prove that the accused is guilty; and

(b) that the accused is not required to give evidence or call a witness (as the case requires); and

(c) that the jury should not guess or speculate about what might have been contained in—

(i) the evidence that was not given by the accused; or

(ii) the evidence that might have been given by a witness who was not called—

as the case requires; and

(d) that the fact that the accused did not give evidence or call a witness (as the case requires)—

(i) is not evidence against the accused; and

(ii) is not an admission by the accused; and

(iii) must not be used to fill gaps in the evidence adduced by the prosecution; and

(iv) does not strengthen the prosecution case.

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.