The Weissensteiner direction refers to a now rarely used judicial instruction that allowed a jury, in limited circumstances, to draw an inference of guilt from an accused person’s silence, specifically, their failure to explain facts uniquely within their knowledge. The direction originates from Weissensteiner v The Queen (1993) 178 CLR 217.

Though historically significant, this direction is now largely obsolete. Modern courts refer to any judicial reference to an accused’s silence as a comment, not a direction, reflecting a shift in how silence is treated during trials.

Principles of the Weissensteiner Direction

Exceptional Use Only

The High Court emphasised that the Weissensteiner direction should be reserved for rare and exceptional cases. It is not a standard part of judicial guidance.

Relevant in Circumstantial Evidence Cases

The direction typically arose in trials built largely on circumstantial evidence, especially when the accused had exclusive knowledge of key facts.

Silence May Be Considered But Not Penalised

The accused’s silence could be considered, but it does not shift the burden of proof, which always remains on the prosecution.

Not a Mandatory Instruction

Judges are not obligated to provide this direction. It should only be given when the circumstances clearly justify it, and only after a careful legal assessment.

Criticisms and Concerns

Right to Silence

Legal scholars and practitioners argue that this direction may undermine the right to silence, a fundamental protection in Australian criminal law.

Risk of Jury Misinterpretation

There is a risk that juries may misunderstand or misuse the direction, potentially leading to unjust outcomes or wrongful convictions.

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.

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