Mr Weissensteiner did not call any evidence at his trial, nor did he take the Witness stand. As a result of this, the Trial Judge directed the jury that they were entitled to draw an inference of guilt due to the Defendant’s failure to explain the circumstances surrounding the case, in circumstances where he was likely to have some knowledge of what had in fact occurred.

The stand out issue with the subsequently named ‘Weissensteiner Direction’ is that is significantly undermines the presumption of innocence within our Legal System.

The presumption of innocence dictates that a person is believed to be innocent such a time that the Prosecution is able to prove his guilt to the requisite standard of proof, which is beyond reasonable doubt.

Undoubtedly because of this, the High Court imposed several limitations on the Weissensteiner principle. Specifically, a negative inference cannot be drawn from a defendant’s decision to stay silent. A jury can only draw an inference of guilt which is made available by the Prosecutions facts, facts that are given some additional credibility by the defendant’s unwillingness to provide evidence to the contrary.

Further, the High Court found that a jury must be made aware of the fact that a Weissensteiner Direction made by a judge can be ignored.
It is perhaps unsurprising that the High Court found that the Weissensteiner Direction can only be made in rare cases. It is therefore still the position at Common Law that a defendant’s silence alone is not enough in most circumstances to establish guilt.