Many people would be surprised to hear that a Defendant’s Right to Silence is not as wholesome as they would like to believe.

As a result of Legislative amendments, and the High Court’s findings in Weissensteiner v R a Defendant’s right to silence has become even less absolute.

 

Weissensteiner v R

Mr Weissensteiner was arrested by the Australian Federal Police in Papua New Guinea, when he was accused of murdering Mr Hartwig Bayeral & Ms Susan Jack, a young couple who were last seen in the company of the Accused.

Mr Bayeral & Ms Jack had departed Australia with Mr Weissensteiner on a private boat. The couple where never seen again. Mr Weissensteiner was not initially a suspect, and his subsequent arrest was made on circumstantial grounds.

The Weissensteiner Direction

Mr Weissensteiner did not call any evidence at his trial, nor did he take the Witness stand. As a result of this, the Trial Judge directed the jury that they were entitled to draw an inference of guilt due to the Defendant’s failure to explain the circumstances surrounding the case, in circumstances where he was likely to have some knowledge of what had in fact occurred.

The stand out issue with the subsequently named ‘Weissensteiner Direction’ is that is significantly undermines the presumption of innocence within our Legal System.

The presumption of innocence dictates that a person is believed to be innocent such a time that the Prosecution is able to prove his guilt to the requisite standard of proof, which is beyond reasonable doubt.

Undoubtedly because of this, the High Court imposed several limitations on the Weissensteiner principle. Specifically, a negative inference cannot be drawn from a defendant’s decision to stay silent. A jury can only draw an inference of guilt which is made available by the Prosecutions facts, facts that are given some additional credibility by the defendant’s unwillingness to provide evidence to the contrary.

Further, the High Court found that a jury must be made aware of the fact that a Weissensteiner Direction made by a judge can be ignored.

It is perhaps unsurprising that the High Court found that the Weissensteiner Direction can only be made in rare cases. It is therefore still the position at Common Law that a defendant’s silence alone is not enough in most circumstances to establish guilt.

Legislative Amendments

The changing position at Common Law has also been reflected in the Legislature. The current section 20 of the Evidence Act says that the Trial judge is entitled to make an appropriate comment to the jury in circumstances where a Defendant or a relevant family member does not give evidence at a trial. It must be noted however that the judge is precluded from making any comment that implies that the defendant is guilty.

Conclusion

The changes set out above outline above are perhaps troubling. Even in circumstances where the Weissensteiner Direction has been described as a failure by the Defendant to explain, rather than a failure to give evidence, one cannot help but wonder whether directions of this nature can be reconciled with the presumption of innocence principle.

It is clear however, that an innocent party may suffer calamitously from any limitation placed on a person’s right to silence.