The direction in Jones v Dunkel springs from a motor negligence case, where the jury was told that the failure of the Defendant to call the only witness to the accident could be properly be regarded as a basis to assume that the evidence would not have assisted their case.
Section 20 of the Evidence Act states that no such direction should be given in respect of the Defence case. As much was confirmed in Dyers v R  HCA 45, where Defence had not called a witness who might have corroborated the Accused’s dock statement. The court found that “The principles stated in Jones v Dunkel presuppose that there is occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial.”
Similarly, the High Court in Mahmood v State of Western Australia  HCA 1 found that the direction should not be given where the prosecution fails to call a witness, holding that “the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused.“
Jones v Dunkel  HCA 8
“The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence.”
R v OGD (1997) 45 NSWLR 744
“First, the failure of an accused person to give evidence cannot be treated as an admission, by conduct, of guilt… Secondly, it is commonly appropriate to instruct a jury that failure to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect it to be in the power of an accused to do so, may make it easier to accept, or draw inferences from, evidence relied upon by the Crown. Thirdly, it is ordinarily necessary to warn a jury that there may be reasons, unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent.”
“The present case provides a good example of circumstances which demonstrate the need for caution. The appellant was charged with multiple offences. It was quite possible that he had an answer to one of the charges but not to the others. It was also possible that his answer to one of the charges would have involved him in making admissions in relation to others.”
RPS v R  HCA 3
“If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor "has the responsibility of ensuring that the Crown case is presented with fairness to the accused" and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.”
Azzopardi v R  HCA 25
“There are “rare and exceptional” circumstances where comment on the failure by a Defendant to give evidence exist, but “only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case”
Dyers v R  HCA 45
“The principles stated in Jones v Dunkel presuppose that there is occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial.”
Mahmood v State of Western Australia  HCA 1
“…where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused”
Louizos v R, R v Louizos  NSWCCA 71
“It seems to me that the decision in Mahmood in the passage quoted has effectively changed the law in this State.
In the present case, therefore, it may have been appropriate for the trial judge to raise with the jury whether the failure of the Crown to call the witness gave rise to a reasonable doubt about the truthfulness and reliability of the evidence of Williams but he was never asked to do so.”
Dixon CJ (would dismiss the plaintiff’s appeal, and did not address the issue re the calling of the witness)
Twenty paces to the rear of the truck and facing in the same direction was a diesel truck. It stood on the same side of the road more or less on the earthen shoulder but not at an angle with the direction of the road. The diesel truck had been driven by the defendant Hegedus, an employee of the defendant Dunkel. Hegedus was not killed but he was hurt. He had been travelling in the opposite direction.
The defendants' counsel at the conclusion of the plaintiff's case sought a directed verdict and for the purpose, in accordance with the prevailing practice in New South Wales, announced that he would not call evidence. The learned judge refused his application but the jury found a verdict for the defendants. An application to the Full Court of the Supreme Court for a new trial failed. In the view I take the grounds upon which the plaintiff sought a new trial are immaterial. I cannot see how a jury might reasonably infer that her husband was killed by the negligence of Hegedus. The accident is simply left unexplained.
Kitto J (would allow the appeal)
Taylor J (would dismiss the appeal, and does not address the issue re the calling of the witness)
Menzies J (would allow the appeal)
Windeyer J (would allow the appeal)
Following a trial before Nield DCJ and a jury in the District Court the appellant was convicted of ten offences of having homosexual intercourse with a male person under the age of eighteen years. He was also convicted of one offence of having sexual intercourse with a person without the consent of the person, knowing that there was no consent. The appellant was sentenced to terms of penal servitude which, in their combined effect, involved a minimum term of seven years and an additional term of three years. He appeals against his convictions and seeks leave to appeal against the sentences.
Mrs B gave evidence of four conversations she had with the appellant over the succeeding days. Only her evidence as to the fourth of those conversations was challenged in cross-examination. She said that in the first conversation the appellant told her that he had something he wanted to explain to her. In the second conversation, the appellant asked her not to tell their parents. In the third conversation, the appellant asked Mrs B whether J had said anything to her, to which she replied that J had “told her everything”. The appellant then said that he wanted to talk to her and would visit her.
The evidence of Mrs B as to the fourth conversation, which was challenged in cross-examination, was that she asked the appellant directly whether he had had sex with J, and that he admitted that he had done so about ten times.
There is one important aspect of the case against the appellant which, although not mentioned in the argument of counsel on this appeal, emerges from a reading of the record of the trial.
It was noted above that the appellant was convicted of eleven offences. He had in fact been charged with twelve offences, but was acquitted of one of the counts alleging homosexual intercourse. That is not presently material. What is important is the difference between ten of the charges in respect of which he was convicted and the other charge in respect of which he was also convicted. In the case of the ten charges of homosexual intercourse with a male person under the age of eighteen years, the presence or absence of consent on the part of the complainant was irrelevant. Whilst the question of consent was irrelevant to the ten charges just mentioned, it was of central importance to the final count in the indictment, which alleged non-consensual intercourse.
If one were to search for a possible explanation of the appellant's failure to give evidence there is, to my mind, one distinct possibility. It is that the appellant, if he had sought to defend himself against the final charge by asserting that the complainant consented to sexual relations, or that he did not know the complainant was not consenting, would have been forced to make admissions in relation to the other charges. It is at least a possibility that the appellant would have wished to contend that the intercourse of 4 January 1995 was, or was believed to be, consensual, but evidence he might have given in support of that contention, concerning the nature of his relationship with the complainant, would have involved him in making admissions of guilt in relation to the other charges. That possibility, it might be added, is consistent with some of the things the appellant allegedly said to Mrs B by way of admission. What he said to her appeared to amount to admissions of offences of the kind involved in all the charges except the last.
At 749 and 750
Neither at the trial, nor on this appeal, was exception taken to any part of the above directions other than the paragraph beginning with the words:
“If you are satisfied that the accused could have given evidence from his personal knowledge of the events about which the complainant and (Mrs B) gave evidence ….”
Trial counsel objected to that portion of the directions, which he described in argument as the Jones v Dunkel direction: cf Jones v Dunkel (1959) 101 CLR 298. Counsel asked the judge to withdraw the direction, but the judge refused.
Two complaints are made about the so-called Jones v Dunkel direction on this appeal. The first is that it contravened s 20 of the Evidence Act 1995. The second is that, quite apart from the provisions of s 20, in the circumstances of the present case the direction was both factually erroneous and legally inappropriate. The second of those complaints has been made good.
At 750 to 751
First, the failure of an accused person to give evidence cannot be treated as an admission, by conduct, of guilt. The reason is that, if it were otherwise, the legal right to silence would be negated: Weissensteiner (at 229). As Nield DCJ instructed the jury in the present case, an accused's silence may not be thought to be an admission of guilt. Or, as the trial judge in Weissensteiner directed the jury, an accused person does not have to prove anything, and is under no obligation to give evidence, and a jury cannot infer guilt simply from the accused's failure to do so.
Where there is no statutory prohibition on comment, then, if anything at all is to be said about a failure to give evidence, this first principle should be explained to a jury. As a matter of ordinary experience, many lay people would readily treat an accused's silence as an admission of guilt unless warned against doing so.
Secondly, it is commonly appropriate to instruct a jury that failure to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect it to be in the power of an accused to do so, may make it easier to accept, or draw inferences from, evidence relied upon by the Crown.
Thirdly, it is ordinarily necessary to warn a jury that there may be reasons, unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent.
At 752 and 753
However, strong warnings have been given of the risks involved in applying Jones v Dunkel in criminal trials. In R v Buckland  2 NSWLR 452 at 459, Street CJ was considering the matter against the background of the prohibition, by s 407 of the Crimes Act, of any comment on the failure of an accused to give evidence. In discussing a comment about the failure of the defence to call a particular witness, he said (at 459):
“… In criminal proceedings, however, the making of a comment or the indication of the available inference will be attended by a marked degree of caution, inasmuch as in many cases the absence of a witness either for the Crown or the accused might well be explicable upon grounds not readily capable of proof. If it is suspected that there may be some valid reason for a witness not being called, then, in a criminal trial in particular, a careful appraisal is requisite before commenting on the absence of that witness either in address or in the summing-up.”
The present case provides a good example of circumstances which demonstrate the need for caution. The appellant was charged with multiple offences. It was quite possible that he had an answer to one of the charges but not to the others. It was also possible that his answer to one of the charges would have involved him in making admissions in relation to others. This was hardly a consideration which trial counsel for the accused would have wished to draw to the attention of the jury. It was, however, a consideration which should not have been overlooked by the trial judge. The explanation for the failure of the appellant to give evidence might have been that he was faced with a dilemma to which he responded by saying nothing.
As a practical matter, it will often be prudent for a trial judge, before giving directions which include a Jones v Dunkel direction to raise with counsel, in the absence of the jury, the question whether such a direction should be given. That would give counsel an opportunity to suggest to the judge possible reasons for the accused's silence (or the failure to call a witness) which may not have occurred to the judge, and to debate the fairness of the direction. In the present case, the trial judge gave the direction, counsel for the appellant later, in the absence of the jury, complained, and the Crown prosecutor expressed some concern about the matter. The judge was then faced with a choice between withdrawing or modifying the direction, or leaving it stand. He took the latter course.
In other parts of the summing-up the jury were told, appropriately, that they had to consider each charge against the appellant separately. Indeed, as has been mentioned, they acquitted the appellant of one of the first group of charges. However, in the context of the directions relating to the inferences available from the appellant's silence, there was no attempt to discriminate between the different charges, and no reference to the possibility that the silence of the accused might have a different significance in relation to different charges. Counsel for the accused, understandably, did not invite any such reference. Although the jury had earlier been expressly warned not to speculate as to why the accused elected not to give evidence, they were then told that they were entitled to decide from the accused's election not to give evidence that nothing that he could say would have assisted him in the trial. In the circumstances of the present case that was not an available inference. At the very least, the drawing of such an inference would have required consideration of issues and possibilities that were not brought to the attention of the jury. This constituted a material misdirection.
I agree with Gleeson CJ.
I have had the benefit of reading in draft Gleeson CJ's reasons for judgment in this appeal. I agree with the orders he proposes and with his reasons for those orders.
Where evidence is led which is capable of establishing guilt and where the accused can reasonably be supposed to know the true facts and where there is no apparent explanation for not answering the evidence that has been led, it would not be unreasonable — as an exercise in ordinary processes of reasoning — to find guilt simply because of the accused's silence. That, however, would be inconsistent with the legal principle concerning onus of proof, and with more emphatic expressions of that principle to be found in the criminal law, such as that the accused is innocent until proven guilty and that the accused has a right to silence. Ordinary reasoning yields to legal principle in this instance.
That succinctly encapsulates the point. The jury must not pass over an evaluation of the evidence called in the proceedings and find the accused guilty merely on the basis of the accused's election not to give evidence, no matter how eloquent the accused's silence may be.
(To say that the accused's election not to give evidence is not to be used as an admission of guilt is a way of stating the above principle. But I doubt that such a formulation would be intelligible to a jury. To a lawyer, it means that the accused's silence is not to be used as independent evidence of guilt. I do not know what a jury would make of it.)
I have said how the election not to give evidence may not be used. How may it be used?
Following the passage I have quoted from the summing-up in Weissensteiner, the trial judge in that case went on to state what use could be made of the failure to give evidence. The High Court approved those further directions. They were, however, tailored to the circumstances of the case. They provide a good precedent for a case based on circumstantial evidence. They are not of general application.
Speaking more generally, the rule is that the accused's election not to give evidence can only be used to make it easier to accept the evidence called by the Crown or to draw an inference from the evidence.
This is an uneasy compromise. An election not to give evidence, as a consideration standing alone, may not be used to establish guilt. However, it may be used to make evidence or an inference from the evidence more acceptable.
If the election not to give evidence comes to play an active part in the jury's reasoning, that will be because of an inference drawn by the jury from the accused's silence in the face of damaging evidence. The natural inference from a failure to give evidence in such circumstances is that giving evidence would not have been to the accused's advantage. The problem is that there may be reasons for electing not to give evidence consistent with knowledge on the part of the accused that the Crown case is factually wrong. It is necessary, therefore, that a trial judge take particular care not to suggest that the only inference arising for consideration is that the accused knows the facts to be as the Crown alleges. To suggest as a possible inference that to have given evidence would not have assisted the accused may have that effect, unless the jury is also told emphatically that they should consider the possibility that there may be some other explanation which has not been affirmatively proved by evidence.
Inevitably, that may involve a degree of speculation. I think it is wrong to tell a jury that they may not speculate in this regard. The warning about speculation — if such a warning is to be given at all on this topic — should be confined to a warning against finding an adverse reason for the accused not giving evidence without a sound basis for that conclusion.
Depending on the circumstances of the case, an example of such other possible reasons may help: such as that it might have been thought — as was suggested as a possibility in the present case — that the risk of an inadvertently incorrect answer, given under the pressure of cross-examination, outweighed the risk of the jury finding the accused guilty on the evidence led in the proceedings. Some other possibility might have been mentioned in final address which could be used as an illustration. Or some other possibility might emerge from discussion with counsel before the summing-up, as Gleeson CJ has mentioned.
Gaudron ACJ, Gummow, Kirby and Hayne JJ (would allow the appeal)
8. Two other features of the trial should be mentioned. First, at the close of the prosecution's case at trial, counsel for the appellant announced his intention to call a social worker. The trial judge said, in the presence of the jury, "You must call your client before you can call any other witness. ... That's what the law says. It is customary, and the accused must be called first." The jury were then asked to leave the court and counsel for the appellant informed the judge (in the absence of the jury) that he did not propose to call the appellant to give evidence.
15. We turn then to deal with the central issue in the appeal: the judge's directions to the jury about the significance of the appellant's not having given evidence. In his charge to the jury on this aspect of the matter, the trial judge began by telling the jury that an accused person may, but is not obliged to, give evidence and that the prosecution bears the onus of proof. He said that the jury "must not conclude that [the appellant] has elected not to give evidence because he is guilty of the offences charged against him". He observed that there are many reasons why an accused person may not want to give evidence and told the jury that they "must not speculate as to why [the appellant] has not given evidence". No complaint is made (or could be made) about these parts of the trial judge's charge. They have long been accepted to be an important warning to the jury (in jurisdictions where judicial comment on the accused's failure to give evidence is permitted) against adopting an impermissible chain of reasoning.
17. Five particular elements of this part of the charge ("the impugned directions") should be noted.
First, the trial judge told the jury that the appellant's election not to contradict the evidence given by the complainant's mother of what was said to be a partial admission, could be taken into account by the jury in "judging the value of, the weight of" the prosecution's evidence about it (par (1)).
Secondly, he told the jury that in the absence of denial or contradiction of the evidence given of the partial admission they could "more readily" discount any doubts about that evidence and "more readily" accept the evidence (par (2)).
Thirdly, he told the jury that if it was reasonable, in the circumstances, to expect some denial or contradiction of the prosecution evidence, they were entitled to conclude that the appellant's evidence would not have assisted him in the trial and that the absence of denial or contradiction was a circumstance which could lead them more readily to accept the evidence given by the witnesses for the prosecution (pars (3) and (4)).
Fourthly, he said that the appellant's election not to give evidence could not fill any gaps in the prosecution case but could enable them to feel more confident in relying on the evidence tendered by the prosecution (par (6)).
Finally, he said that the absence of evidence from the accused meant that the version of events put in cross-examination of the witnesses for the prosecution was not supported by evidence (par (7)).
19. The respondent's submission seeks to distinguish between a suggestion that the appellant did not give evidence because he was, or believed that he was, guilty and the trial judge's suggestion (in par (3) of the impugned directions) that the evidence the appellant might have given "would not have assisted him in this trial". The suggested distinction is not tenable. Any belief which the appellant held, that his evidence would not have assisted him in his trial, could proceed only from a belief that he was guilty; that is, it could proceed only from a belief that he could not deny or contradict at least some of what had been said against him. No other construction of what was said by the trial judge in that part of his charge was reasonably open to the jury.
"[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused." (Emphasis added)
38. We do not accept that the circumstances of this case were such as to entitle the jury to take any account of the appellant's not giving evidence in assessing what he meant by his statement to the complainant's mother (if, of course, the jury accepted that he made it). While it is true to say that only the appellant knew what he meant by saying (if he did) that "everything else she said is true", the jury should not have been directed as they were.
McHugh J (would allow the appeal)
50. I see no reason why a trial judge cannot direct a jury that, in weighing the evidence, it is entitled to take into account that the accused has given no evidence in respect of any fact which is "easily perceived to be in his knowledge" and in respect of which it is reasonable to expect a denial or explanation from the accused. In my opinion, a jury is entitled, but not bound, to take into consideration that the accused has given no evidence denying or explaining a fact which is within his or her knowledge and which reasonably calls for an answer. That is because the lack of a denial or explanation is a circumstance which indicates that evidence tending to prove that fact is reliable. Furthermore, the failure of the accused to give evidence denying an adverse inference from such a proven fact is a circumstance which entitles the jury to draw that inference more readily.
58. In the ordinary course of criminal trials, good reasons for not giving evidence about facts "easily perceived to be in his knowledge" and reasonably calling for an answer are likely to be few. They may include loss of memory, illness, age, low intelligence and similar matters. But jurors should not be prevented from using the silence of the accused where the facts are within his or her knowledge merely because it is a criminal trial or there are several counts in the indictment or because the accused is not required to give evidence or thinks that the case against him or her is weak. No doubt, as this Court pointed out in Weissensteiner, there are cases where the deficiencies in the prosecution case are so great that the silence of the accused is not material even if many of the facts are within the accused's knowledge. In Weissensteiner, Mason CJ, Deane and Dawson JJ thought that if such a deficiency exists, it may also be a good reason for not taking into account the accused's silence. But if such cases exist, they must be rare. Subject to the effect of s 20 of the Act and its counterparts, the silence of the accused may be taken into account whenever it assists the jury in evaluating evidence concerning facts within the knowledge of the accused. It is not easy to think of examples where, although there is a case to go to the jury and there is evidence concerning facts within the accused's knowledge which reasonably call for an answer, the lack of a denial or explanation from the accused could not assist the jury in evaluating that evidence.
Callinan J (would allow the appeal)
108. In my opinion the principles stated by the majority in Weissensteiner can have no application in a jurisdiction in which s 20(2) has been enacted. The directions which were approved in Weissensteiner involve suggestions of the kind which s 20(2) now makes impermissible. It is important to bear in mind that the word which the section uses is "suggest". Very little need be said of an accused with respect to the fact that he or she has not given evidence in order to give rise to a suggestion that the failure to give evidence stems from an awareness of guilt. As Isaacs J pointed out in Bataillard v The King, an implication of guilt may be conveyed, not only by a direct or indirect reference, but also by "subtle allusion". The directions which were approved in Weissensteiner could have conveyed no suggestion other than of guilt and may not be given in jurisdictions in which the Evidence Act or its analogues have been enacted.
109. In my opinion, the purpose of s 20(2) is to enable a trial judge to make comments for the protection and benefit of an accused who has not given evidence and not otherwise. This view is consistent with the Australian Law Reform Commission report, to which I have referred and gives effect to the ordinary meaning of s 20(2).
111. There is no doubt that a direction in accordance with Jones v Dunkel may be given in respect of a failure by the Crown to call a material witness without acceptable and admissible explanation. The need for such a direction will usually be heightened by the Crown's responsibility to present its case in a way which is fair to an accused. However, such a direction may not be given in relation to an accused person or an accused person's witnesses who, if the matter were a civil trial, might be expected to be called. A direction with respect to a defence case, based upon Jones v Dunkel would not only infringe s 20(2) but also would erode the basic principle of the presumption of innocence. The principles stated in Jones v Dunkel by their very nature presuppose that there is a need, or an occasion, for evidence to be called by a party, or an expectation that evidence could and should be called by a party. An accused person in criminal proceedings labours under no such need, occasion or expectation.
113. I should also say that I agree with the observations of the other members of this Court with respect to judicial instructions in criminal trials, and their observations about any continued application of OGD in New South Wales.
Gleeson CJ (would dismiss the appeal)
s 20 of the Evidence Act 1995 (NSW) ("the Evidence Act").
Gaudron, Gummow, Hayne and Kirby JJ (would allow the appeal)
"In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case".
61. What was important in Weissensteiner, and what warranted the remarks that were made to the jury in that case, was that, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person or source. In other words, Weissensteiner was not a case in which the accused simply failed to contradict the direct evidence of other witnesses. If that were sufficient to warrant a direction of the type given in that case, there would be, in truth, no right to silence at trial.
62. The unusual circumstances of Weissensteiner stand in sharp contrast with the not uncommon case in which an accused is charged with a crime, such as a sexual assault, in which the prosecution case depends largely, if not entirely, upon the evidence of the alleged victim. In that kind of case, while the defence will usually contradict the account given by the victim, there is no basis for concluding that there is any additional fact known only to the accused, and therefore not the subject of evidence at trial if the accused remains silent, which would explain or contradict the evidence given by the victim. The central issue in such a case is whether the evidence called by the prosecution persuades the jury to the requisite standard of the elements of the offence. That will largely depend on the jury's assessment of the evidence of the alleged victim. It does not depend upon the jury inferring that any event or fact took place which was not the subject of evidence. In the words of Mason CJ, Deane and Dawson JJ in Weissensteiner, this type of case would not, therefore, be a case "call[ing] for explanation or contradiction in the form of evidence from the accused". Nor, adopting the language of Brennan and Toohey JJ in Weissensteiner, would it be a case "where the facts which [the jury] find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming". The reference by Mason CJ, Deane and Dawson JJ to "explanation or contradiction in the form of evidence from the accused" is important. It refers to more than bare contradiction by denial of what is alleged. The accused's plea of not guilty stands as that denial. What is important is that the accused, and only the accused, can shed light on what happened, not just by making a sworn denial of the allegation but by giving evidence of facts which, if they exist, would explain or contradict the evidence tendered by the prosecution.
63. Another important matter to be noted with respect to Weissensteiner is that, as mentioned above, that case was decided in a context in which there was no prohibition on judicial comment with respect to an accused's failure to give evidence. That is not the case with s 20(2) of the Evidence Act. That sub-section enables comment to be made but it contains a prohibition against suggesting that the accused failed to give evidence because he or she is, or believes that he or she is, guilty of the offence charged.
64. There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence.
67. The qualification to which reference has just been made is this: as already explained, a judge may comment on evidence, not give directions with respect to the evidence. If the circumstances are such as to permit a comment with respect to the failure to offer an explanation, it should be made plain that it is a comment which the jury are free to disregard. If made, it should be placed in its proper context. That requires identifying the facts which are said to call for an explanation and giving adequate directions to the jury about the onus of proof, the absence of any obligation on the accused to give evidence, and the fact that the accused does not give evidence is not an admission, does not fill gaps in the prosecution's proofs and is not to be used as a make-weight. And the comment should not go beyond that made in Weissensteiner, as adapted to refer to the failure to offer an explanation rather than the failure to give evidence.
68. It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Once that is appreciated, the supposed tension between Weissensteiner and RPS disappears. In Weissensteiner, the comment related to the absence of evidence of additional facts peculiarly within the knowledge of the accused; in RPS, there was no question of any additional fact known only to the accused merely the failure to contradict aspects of the prosecution case.
McHugh J (would dismiss the appeal)
86. In my opinion, the directions by the judges did not contravene s 20(2) of the Evidence Act because they did not suggest that the accused persons failed to give evidence because they were, or believed that they were, guilty of the offences charged. Nor were the directions inconsistent with "the right to silence" that is an incident of the common law privilege against self-incrimination. Nor were they inconsistent with the immunity from compulsion to give evidence that is enjoyed by an accused person. Protection of "the right to silence" or the immunity of an accused person from giving evidence does not require any reading down of the express power conferred on the trial judge by s 20(2) to "comment on a failure of the defendant to give evidence". The sub-section contains its own limitation: the judge's comment must not suggest guilt or a belief in guilt. It imposes no other limitation. It is true that RPS v The Queen holds that, independently of s 20, the common law prevents a judge, except in very limited circumstances, from commenting on the failure of the accused to give evidence. But in so far as that decision so holds, its reasoning is inconsistent with the Court's earlier decision in Weissensteiner v The Queen. It is also inconsistent with many statements of principle and decisions in earlier cases in this and other jurisdictions and with the intention of the legislature in enacting s 20(2). In my opinion, the reasoning in Weissensteiner is correct and should be followed in preference to RPS in so far as the two cases conflict, as in my opinion they do.
111. [The trial judge’s direction in Weissensteiner] was a strong direction. It was not confined to drawing inferences of fact from facts directly proved. It directed the jury that they could infer guilt from the facts proved. It was for that reason that Gaudron J and I dissented in Weissensteiner. In my view, Weissensteiner was decided in accordance with the principle that, in weighing the evidence of the prosecution, the jury is entitled to take into account the failure of the accused to contradict or explain the evidence of the prosecution when evidence from him in contradiction or explanation might reasonably be expected. The majority judges in Weissensteiner cited too much authority in support of that proposition to accept that the directions in that case were upheld on the narrow ground that the accused's failure to give evidence could be taken into account only because he was in possession of facts additional to those already proven in evidence.
116. If the distinction between civil and criminal cases is valid, it must be because in a criminal case the accused cannot be compelled to give evidence. It must be because, in some way, directions about silence are inconsistent with "the right to silence" being an incident of the rule that the accused in a criminal trial cannot be compelled to testify. Indeed, this appears to be the true basis of the judgment of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS. Their Honours said:
"The trial judge's directions to the jury proceeded from the premise that it may be 'reasonable ... to expect some denial or contradiction to be forthcoming from the [appellant] if such a denial or contradiction is available'. But for the reasons given earlier, that premise is wrong. It is contrary to fundamental features of a criminal trial: features to which the trial judge alluded earlier in his charge."
117. But as I will seek to show neither historically nor now has the law recognised a "right to silence" that prevents a trial judge from commenting in the manner that occurred in the present cases. Nor does the immunity from compulsion to give evidence prevent such comments. In addition, once it is conceded that the silence of the accused may be taken into account in some cases, as the majority in RPS, and in the present cases, concede, the point of principle is decided in favour of Weissensteiner. Once the concession is made that "the right to silence" and the immunity from compulsion do not prevent the judge from making some adverse comments, the debate must be about details. And it is not easy to see how or why the comment should be as limited as RPS suggests. If comment is justified when the accused probably knows of additional facts that could deny inferences that can be drawn from the evidence, why is comment denied when the accused fails to rebut or explain evidence about matters that the accused knows are true or false? The reasoning that justifies comment in one case seems just as applicable in those cases where RPS denies the right of comment.
174. In my opinion, the comments of the trial judges in the present cases were in accordance with the law, as it has long been laid down in England and Australia, and with what the legislature of New South Wales intended. If anything, the terms of s 20(2) have strengthened the power of the trial judge to comment on the failure of the accused to give evidence. In so far as RPS suggests that the comments of the trial judges in the present case were erroneous, it should not be followed. Trial judges should regard Weissensteiner as correctly stating the law.
Callinan J (would allow the appeal)
191. [RPS] should be regarded as a correct statement of the law applicable to this case. The trial judge's comments fell on the wrong side of the line which a trial judge must draw. It seems to me that the remarks made in his summing up that I have quoted were, at least a subtle allusion to the possibility, indeed even the likelihood, that the appellant did not give evidence because he believed or knew that he was guilty. That was so because his Honour's directions conveyed that the appellant's election not to give evidence could be taken into account in judging the value of, or the weight of the evidence for the prosecution; and doubts entertained about the evidence of witnesses for the prosecution might be more readily discounted because the accused had not given evidence. The trial judge also referred to the failure of the accused to give evidence as a circumstance entitling the jury to accept readily the evidence of the prosecution. Although his Honour did say that the appellant's decision not to give evidence could not be used to fill any gaps in the prosecution case, he added, erroneously, that it could be used in assessing the value of the evidence given by the prosecution witnesses. And finally, also erroneously, his Honour's remarks included that the absence of evidence from the accused meant that the version of events put in cross-examination of witnesses for the Crown was not supported by evidence.
Gaudron and Hayne JJ (would allow the appeal on the Jones v Dunkel point)
McHugh J (would dismiss the appeal)
Kirby J (found that a Jones v Dunkel direction should not have been given, but held that the appeal should nonetheless be dismissed)
Callinan J (would allow the appeal)
123. In almost all cases a trial judge should say nothing about an absent material witness whom an accused might supposedly have called. At most, a trial judge might in some circumstances have occasion to say that the jury should act on the evidence, and only the evidence that has been called. As, save for exceptional cases, the Crown Prosecutor may not address or comment on the non-attendance of witnesses for the defence, the reason, and therefore the occasion, for a trial judge to comment, should also be very rare. I need mention in relation to this ground one other matter only, and that is the appellant's counsel's acquiescence in the trial judge's observations about the people who did not give evidence for the appellant. The trial took place before the decision of this Court in RPS. The appellant in any event takes no point about that acquiescence. It does not therefore stand as an obstacle to the upholding of ground one. Because the upholding of the first does not entitle the appellant to an acquittal it is necessary to consider the appellant's other arguments.
Gleeson CJ, Gummow, Kirby and Kiefel JJ (would allow the appeal)
"... The second result the state relies upon is the blood found in the accused's pocket. The state says this is consistent with the accused putting the murder weapon in that pocket. Again, the significance of this evidence is a matter for you but before you could use that evidence against the accused you would have to exclude as a reasonable hypothesis other means by which the blood could have got in the pocket; for example, if the accused had put his bloodstained hand in the pocket to get something out or to search for something or even just out of habit."
Hayne J (would allow the appeal)
McClellan CJ at CL
Defence counsel: This is one of those cases where perhaps some particular caution needs to be expressed in directing the jury about the burden of proof. I’ll have a bit to say about that it in my closing address early on and Tammy Gumb hasn’t been called so a little bit of Jones v Dunkel there I think.
His Honour: She’s the wife of?
DEFENCE COUNSEL: De-facto wife of Williams. Williams was cross-examined about her presence on the Monday morning when he says that Tammy Gumb was present in the house. I went back to the committal transcript where he was asked can anyone verify that [the appellant] visited and he gave her name.
CROWN PROSECUTOR: The only thing your Honour is this, Jones v Dunkel doesn’t actually apply in criminal cases any more.
HIS HONOUR: It doesn’t strictly necessarily arise.
CROWN PROSECUTOR: I mean we have pared back the volume of the witnesses to be called. If her evidence became a particular relevant issue then the Crown would [not?] have discharged its obligations by not [sic] calling the witness. I don’t mind one way or the other what the jury make of the evidence. The only thing is as a matter of law Jones v Dunkel at least in terms of Crown cases doesn’t seem to apply because of the Crown’s obligation to call all available witnesses.
HIS HONOUR: I think the notion that Jones v Dunkel doesn’t apply to the Crown is a different concept. I will have a look at that.
DEFENCE COUNSEL: Perhaps we can defer that to some point before your Honour’s summing up.
51. Although defence counsel had indicated to his Honour that the question of whether a comment should be made about the absence of the witness in accordance with Jones v Dunkel had arisen, the matter was never raised again with the trial judge, either before the summing up or after it. The Judge clearly had not declined the application or refused to make a comment. The matter had not been determined at the time defence counsel had raised it but had been deferred until after addresses at the suggestion of defence counsel.
 It was neither necessary nor appropriate for the trial judge to direct the jury that an inference adverse to the case for the prosecution could be drawn because the presence of blood in the appellant's trouser pocket had not been the subject of evidence by the prosecution's witnesses. In the joint reasons in RPS v R it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v R.
… if the proposition in  represented the law of New South Wales, it would amount to a change in the law. In my opinion it did not in fact change the law, but constituted only a dictum. If the reasoning in that dictum were incorporated in a decision of the High Court, or in a decision of this Court, it would change the law. On an issue of this importance, which could radically affect the rights of accused persons to seek comments adverse to the Crown case, a change in the law should not be effected by this Court, but only by a decision of the High Court. It has not yet been effected by any decision of the High Court.
It seems to me that the decision in Mahmood in the passage quoted has effectively changed the law in this State.