This provision has not been checked by a human. The text below was read automatically from the official PDF and has not yet been verified against it, so it may differ from the provision as published — in its wording, its numbering, or where one provision ends and the next begins. For the authorised text, see legislation.vic.gov.au.
concerns the opening address of the accused and the order in which events occur at the beginning of the accused's case. The current provision is section 418 of the Crimes Act 1958 which is complex and has been amended many times. When originally enacted in 1958, section 418 dealt only with unsworn statements by the accused. It provided that, if the accused wanted to make an unsworn statement, the statement had to be made after counsel for the accused had made his or her final address to the jury. A problem arose in cases where there were multiple accused. The Crimes (General Amendment) Act 1976 amended the section to, among other things, address this problem. Subsequently, the Evidence (Unsworn Evidence) Act 1993 abolished the right of an accused to make unsworn statements, resulting in further substantial amendments to the section. The result of this history is that the purpose of much of section 418 is difficult to identify. Specifically, section 418(c)(i) currently provides that "the accused may be called as a witness at any stage as he may think fit after the close of the evidence for the prosecution and either before or after the opening". Arguably, the two parts of the quoted portion are inconsistent. The first part indicates that the accused can give evidence at any time, including after any other witness has given evidence. The second part suggests that the accused's options are limited to before or after the opening address, but still before anyone else gives evidence. The first interpretation is preferred by Fox in Victorian Criminal Procedure (Monash University, 2005) at paragraph 8.8.16 and is consistent with the common law position (see Regina v RPS [1997] NSWSC 305 affirmed in RPS v R [2000] HCA 3). In light of this history, clause 231 represents a new simplified process by which—
if the accused chooses either to give evidence, or call evidence, or both, then the accused may give an opening address to the court;
if the accused gives such an opening address then it must be given before any evidence is either given or called by the accused;
the trial judge may limit the length of the opening address;
the accused is not obliged to give evidence before other witnesses called by the accused have given evidence. Division 6—Giving of evidence