Out of Court Statements of Person Charged (General Instruction)

Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.

11.7 Out of Court Statements of Person Charged (General Instruction)

Note[81]

(Last revised June 2012)

[1] You heard the testimony of (NOW) who claimed to have heard (NOA) say something. You have to decide whether you believe (NOA) made the statement, or any part of it. Regardless of who the witness is, it is still up to you to decide whether you believe that witness’s evidence.

[2] In deciding whether (NOA) actually said these things, or any of them, use your common sense. Take into account the condition of (NOA) and of (NOW) at the time of the conversation (interview, discussion). Consider the circumstances in which the conversation (interview, discussion) took place. Bear in mind anything else that may make the witness’s evidence more or less reliable. (Specify relevant circumstances, e.g., notes taken, incomplete notes, etc.)

(Where the accused contests the accuracy of the police evidence concerning his or her unrecorded statement add instruction [2-A].)

[2-A] In this case, there is evidence from which you may infer that the police deliberately set out to question (NOA) and did not attempt to make a reliable video or audio recording, although recording facilities were readily available. If you reach that conclusion, then the failure to make a recording is an important factor for you to consider in deciding whether to rely on the police version of (NOA)’s statement.

(In all cases:)

[3] Unless you decide that (NOA) made a particular remark or statement, you must not use it against him/her in deciding this case.

(Where at least part of the statement is or may be exculpatory, add:)

[4] Some or all of the statement may help (NOA) in his/her defence. You must consider those remarks that may help (NOA), along with all of the other evidence, unless you conclude that s/he did not make them. In other words, you must consider all the remarks that might help (NOA) even if you are not sure whether s/he said them.

[81] If there is no issue about whether the statement was made, it may not be necessary to give the instructions in paragraphs [1] – [3].

Where a statement is adduced in a joint trial, Final 11.8 should be added.

Where an accused whose statement has been admitted in a joint trial testifies, Final 11.9 should be included.