Law Report: Comment on failure to testify

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Regina v Martinez-Tobon - Court of Appeal (Criminal Division)(Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Schiemann and Mr Justice Wright), 26 November 1993

Where a defendant does not testify at his trial, the trial judge should give the jury a direction that the defendant is under no obligation to testify and the jury should not assume he is guilty because he has not given evidence. The judge is entitled to comment on the defendant's failure to give evidence in cases where the defence case involves alleged facts which are at variance with prosecution evidence and which, if true, are within the defendant's knowledge, provided that such comment does not contradict or nullify the judge's direction to the jury.

The Court of Appeal dismissed the appellant's appeal against conviction of being knowingly concerned in the fraudulent evasion of a prohibition on importing cocaine.

The appellant's co-accused had pleaded guilty and gave evidence for the prosecution that the appellant was involved in arranging the drug run and receiving the drugs. The defence case was that the appellant was expecting a consignment of emeralds, not cocaine. The co-accused denied that and the appellant did not give evidence.

The trial judge directed the jury that the appellant did not have to give evidence and the fact that he had not given evidence added nothing to the prosecution case but he had done nothing to rebut the prosecution case since suggestions put by counsel were not evidence. The judge then commented that if the appellant 'thought it was emeralds and not drugs, one might have thought he would be very anxious to say so'. The appellant appealed on the ground that the judge's comment was improper and a misdirection.

James Montgomery (Registrar of Criminal Appeals) for the appellant; David A Radcliffe (Customs & Excise Solicitor) for the Crown.

LORD TAYLOR LCJ, giving the court's judgment, said that the decisions on what comment a judge might make when a defendant did not evidence were not easily reconcilable. There were presently proposals for altering the law relating not only to a defendant's failure to testify, but also his failure to answer questions put by the police.

For the present, the following principles applied where a defendant did not testify. (1) The judge should give the jury a direction along the lines of the Judicial Studies Board specimen direction, based on R v Bathurst 52 Cr App R 251,: 'The defendant does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt. On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence put before you by the prosecution.' (2) The essentials of that direction were that the defendant was under no obligation to testify and the jury should not assume he was guilty because he had not given evidence. (3) Provided those essentials were complied with, the judge might think it appropriate to make a stronger comment where the defence case involved alleged facts which (a) were at variance with prosecution evidence or additional to it and exculpatory, and (b) must, if true, be within the knowledge of the defendant. (4) The nature and strength of such comment must be a matter for the discretion of the judge and would depend on the circumstances of the individual case. However, it must not be such as to contradict or nullify the essentials of the conventional direction.

Applying those principles to the present case, it was clear that the judge gave the essentials of the conventional direction. The case was classic example of an assertion of fact in conflict with the prosecution evidence and going to the heart of the case; fact of which, if true, the appellant could clearly have spoken. The judge was entitled to make the comment he did.