Should defendants have the right to silence in court?

You’ve probably heard that you have a right to silence when arrested or asked to participate in a police interview.

And if you’ve been following our blogs, you’ll know that your right to silence has recently been watered-down by legislation. In fact, courts can now draw adverse inferences in certain circumstances if you refuse to talk to police.

You probably also know that if you are a defendant, you can choose whether or not to take the witness stand – nobody can force you to do so.

But what does the law say about staying silent in court? Specifically, can a jury draw an unfavourable inference if you choose to remain silent and not produce any evidence at trial?

This question was examined by the High Court in the case of Weissensteiner v R.

Facts of the case

A young couple, Hartwig Bayerl and Susan Zack, were expecting a baby and planning on getting married, but first decided to go on a cruise.

The pair spent their life savings buying a boat and making alterations to it. They put out an advertisement for a casual labourer for the boat, and Weissensteiner applied. The arrangement was that he would not work for wages, but in return, he could come along on their cruise.

At first, the three got along and the ship set sail. But Bayerl and Zack were never seen again.

When the boat returned to Cairns, only Weissensteiner was seen on board. Neither Bayerl nor Zack contacted their families or accessed their bank accounts. Weissensteiner was not initially under suspicion, and after Australia, he sailed to Papua New Guinea for several months.

But after Interpol searches for the boat and missing persons were conducted, Australian police arrived in PNG to speak with Weissensteiner. He was brought back to Australia and charged, although the case was entirely circumstantial.

The police case

Police alleged that Weissensteiner had murdered the young couple and stolen the boat. Many of the pair’s possessions were found on board the vessel, including a gold bracelet that Zack almost always wore. During his travels, Weissensteiner had made up several stories about how he came into possession of the boat, including that he bought it from an old man in Cairns.

Weissensteiner did not take the witness stand at trial, nor did he call any evidence.

The trial judge told the jury that they could safely draw an inference of guilt from the version of events given by the prosecution because Weissensteiner never explained what occurred despite the true situation being, in all likelihood, within his knowledge.

This is known as a “Weissensteiner Direction”.

Problems and limitations of the Weissensteiner Direction

One of the problems with such a direction is that it undermines the presumption of innocence while impinging upon the right to silence. The presumption of innocence says that a person is presumed to be innocent until the prosecution proves his or her guilt beyond reasonable doubt. The High Court of Australia found that the circumstances under which a Weissensteiner comment can be made are rare. This is because a defendant’s silence should not be enough by itself to establish guilt.

The Court found that there is a difference between drawing a negative inference from a decision to stay silent (which is not allowed) and drawing an inference already available from the police facts a little more safely because the defendant did not contradict them (which is allowed).

The Court additionally found that juries must be directed that Weissensteiner comments are merely remarks that can be ignored.

Now, section 20 of the Evidence Act says that where a defendant or a member of their family does not testify before a jury, the trial judge can make an appropriate comment to the jury, as long as the comment does not imply that the defendant is guilty.

Debate surrounding the right to silence

The logic that is often used by those in favour of taking away the right to silence goes something like this:

Or in other words:

You have nothing to fear if you have nothing to hide.

Of course, that argument completely ignores the fact that the stress of being arrested under suspicion of a serious offence, taken to a police station, put in front of a camera and asked hours of questions in an unfamiliar environment by those in positions of power and authority can cause even a completely innocent person to say things that are inaccurate or untrue. Those inaccuracies can later be used against the person to establish unreliability, lack of credibility, dishonesty and/or consciousness of guilt.

Many studies have found that people who have done nothing at all wrong confess or give incorrect or inaccurate information under such pressure for a range of reasons, including: confusion or altered memory caused by extreme stress and anxiety, suggestibility under fear or pressure, a desire to get out of the immediate situation by saying what police want to hear, and even for notoriety. This is why we have the important safeguard of the right to silence.

Taking the witness stand at trial for an accusation that could result in being sent to prison for years is no walk-in-the-park either, and many defendants are terrified about facing hours or even days of cross-examination by a highly-experienced prosecution barrister, even though they may be completely innocent.

They are particularly scared that they will misunderstand questions and say things wrong, or that their nervousness will be misinterpreted as guilt. Some even have a tendency to twitch, smile or snicker under great pressure, which can be wrongly interpreted by jurors as smugness or even a consciousness of guilt.

Again, the right to silence and presumption of innocence are important safeguards against innocent people being found guilty due to considerations other than the evidence brought by the prosecution.

The High Court in Weissensteiner went to great lengths to explain that the burden of proof still lies on the prosecution – it is simply that an uncontested set of allegations can be more readily believed.

The Weissensteiner Direction has been characterised as a failure to explain, rather than a failure to give evidence – but some have questioned whether such ‘comments’ should be allowed at all when they can have catastrophic implications for an innocent defendant.