The privilege of silence and the persistent risk of self-incrimination: Part II

In its most recent decisions the High Court has laid down three requirements for an adverse inference from the accused's failure to testify to be open. First, the expected exculpatory testimony should concern facts that are additional to the prosecution case; second, they should be facts that the accused has peculiar knowledge of; and third, the inference is only open where there is no direct prosecution evidence. The first two of these requirements are found to also have some support in other jurisdictions, and can be understood as providing some guarantee of genuine probative value. However, the third requirement has no clear rationale, and appears unique to the High Court. Even where these requirements are satisfied, the High Court has imposed further restrictions on the comments that the trial judge may make about the inference. These are inconsistent with the logic of the inference, and preclude the trial judge from giving the jury sensible guidance on its operation.