Published by Geoff Harrison | 3 September 2023
Where a defence witness is not called who might have been able to assist the defence case, no comment should be made to the tribunal of fact: Dyers v The Queen  HCA 45. However, where a witness that would be expected to be called or a witness that might assist the Crown case is not called, then a direction should be given in accordance with the decision of Mahmood. This is consistent with the Crown's onus of proof.
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 The Queen 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 The Queen. (emphasis is mine).
Sources: Criminal Trial Bench Book - Witness not called (re direction).