A Mahmood direction originating from Mahmood v State of Western Australia [2008] HCA 1 is a judicial instruction given to a jury when the prosecution fails to call a witness who could reasonably be expected to provide relevant evidence. This direction allows the jury to take that omission into account when deciding whether guilt has been proven beyond reasonable doubt.

Purpose

The Mahmood direction ensures the jury is aware that the prosecution’s failure to call a potentially important witness may affect the case. It reinforces the principle that the prosecution carries the burden of proof and must present sufficient evidence to establish guilt.

Application

• The jury is permitted to consider the absence of the witness when weighing the prosecution’s case.
• Jurors are specifically cautioned not to speculate about what the missing witness might have said.
• Instead, the focus is on whether the absence of that evidence raises a reasonable doubt, given the evidence that was presented.

When It Is Given

A Mahmood direction is appropriate in circumstances where:

• The witness would ordinarily be expected to provide material evidence supporting the prosecution; and
• Their absence could impact the fairness of the trial or the strength of the prosecution’s case.

The Mahmood direction guides the jury in considering how the prosecution’s decision not to call a witness may affect whether the burden of proof has been met.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

See author's posts