On Not Speaking: The Right to Silence, the Gagged Trial Judge, and the Spectre of Child Sexual Abuse

Alternative Law Journal, Vol. 30, No. 1, pp. 19-23, February 2005

5 Pages Posted: 22 Aug 2008

See all articles by Katherine Biber

Katherine Biber

University of Technology Sydney, Faculty of Law

Date Written: February 2005

Abstract

The right to silence is assumed to be a fundamental protection for people accused of crimes. In Australia, this right is interpreted in the light of strategic choices made by defendants, and supported by legislation restricting judicial comments about a defendant's decision not to give or call evidence. This paper examines High Court jurisprudence that attempts to enforce the right to silence by silencing judges. It pays particular attention to the High Court's decision in Dyers v. The Queen (2002) 210 CLR 285, and notices the significant body of evidentiary rules that have emerged from prosecutions of child sexual assault charges.

Keywords: right to silence, comments, Evidence Act (NSW) s20, Dyers v. R

Suggested Citation

Biber, Katherine, On Not Speaking: The Right to Silence, the Gagged Trial Judge, and the Spectre of Child Sexual Abuse (February 2005). Alternative Law Journal, Vol. 30, No. 1, pp. 19-23, February 2005, Available at SSRN: https://ssrn.com/abstract=1246082

Katherine Biber (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

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