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Contents » Chapter 5 - TRIAL ON INDICTMENT PART 5.1—INTRODUCTION » Division 7 - Closing addresses and judge's directions to the jury
Clause 237 Comment on departure or failure
(1)Subject to subsections (2) and (3), the trial judge or, with the leave of the trial judge, a party may make any comment that the trial judge thinks appropriate on—
(a)a departure referred to in section 233(1); or
(b)a failure by a party to comply with a requirement of this Chapter or an order made under this Chapter.
(2)The trial judge may grant leave to a party to comment on a departure or failure only if satisfied that—
(a)the proposed comment is relevant; and
(b)the proposed comment is not likely to produce a miscarriage of justice.
(3)A comment made by the trial judge or a party must not—
(a)in the case of a departure, suggest that an inference of guilt may be drawn from the departure except in those circumstances in which an inference of guilt might be drawn from a lie told by an accused; and
(b)in the case of a failure—
(i)suggest that an inference of guilt may be drawn from the failure except in those circumstances in which an inference of guilt might be drawn from the failure of an accused to adduce evidence from a particular witness; or
(ii)suggest that the failure may be taken into account in considering the probative value of the prosecution evidence except in those circumstances in which a failure of an accused to give evidence or adduce evidence from a particular witness might be taken into account for that purpose.