On not speaking: The right to silence, the gagged trial judge and the spectre of child sexual abuse

Legal Service Bulletin Co-op
Publication Type:
Journal Article
The Alternative Law Journal, 2005, 30 (1), pp. 19 - 23
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Is there a right to silence for people accused of crimes? What is the .extent of that right? The right to silence co-exists with the presumption of innocence; both are long-standing principles which have come to be given their effect through rather narrow technical procedures. In NSW and federally these principles are implemented through s 20 of the Evidence Act 1995, and the interpretation of s 20 in some of the cases discussed in this article. In criminal matters, the Crown bears the burden of proving the guilt of the accused to the requisite standard: beyond a~y reasonable doubt. The accused is entitled to be presumed innocent unless and until that standard has been met. The accused need not do anything in their own defence, and under s 20 the failure of the defendant to give evidence does not entitle a trial judge to Comment in any way that suggests the defendant has failed to give evidence because they are, or believe they are, guilty of the offence.
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