70109 Study Guide - Final Guide: Adverse Inference
Document Summary
Witnesses: calling witnesses, competence, compellability, vulnerability, sworn and unsworn evidence, examining witnesses. The assumption is that evidence of witnesses is truthful, reliable and accurate. Where this is not the case, the rules try to exclude the evidence of the witness. R v apostilides (pre ea) - essentially up to prosecutor to determine which witness to be called. R v kneebone (post ea) - adopted the position in apostilides. Ea 20(2) no adverse inference on failure to give evidence. Judge may comment on failure to call witness but must not suggest that the defendant failed to give evidence bc the defendant was or believed that he was guilty (very close to right to silence) Exception jones v dunkel: where p does not call witness that could reasonable be expected to; judge may direct jury that failure to call can involve adverse inference that the evidence would not have helped. Judge may only call in exceptional circumstances (r v damic)
