NCJ Number
188673
Journal
Journal of Financial Crime Volume: 8 Issue: 2 Dated: November 2000 Pages: 156-161
Date Published
November 2000
Length
6 pages
Annotation
This discussion of the right to silence in Australia concludes that this area of law needs substantial reform, because the law should reflect underlying community values and the common law has departed from those values by erecting an immunity from adverse inferences from silence.
Abstract
The law currently conflicts with ordinary understanding and practice of the community in that judges tell juries not to make adverse inferences from a defendant’s silence, knowing that they will make such inference due to their common sense. None of the law reform committees have made recommendations that indicate any real understanding of the need for law reform. Thus, the report of the Working Group on Criminal Trial Procedure did not discuss the right to silence in any detail or arrive at any conclusion about it. However, a true appreciation of the need to reform the current law in this area would have led to a recommendation of the most useful and perhaps the only effective means of implementing the part of a pretrial regime that provides for disclosure by a defendant. Such a reform would allow a jury to draw an adverse influence from a defendant’s failure to disclose and would provide for telling a defendant that a failure to disclose might result in such an inference. No adverse inference should be drawn unless it would be reasonable to expect innocent defendants to say what their defenses are. The analysis concludes that the law needs to match community values and be consistent in operation. 11 references