The changing position at Common Law has also been reflected in the Legislature. The current section 20 of the Evidence Act says that the Trial judge is entitled to make an appropriate comment to the jury in circumstances where a Defendant or a relevant family member does not give evidence at a trial. It must be noted however that the judge is precluded from making any comment that implies that the defendant is guilty.

The changes set out above outline above are perhaps troubling. Even in circumstances where the Weissensteiner Direction has been described as a failure by the Defendant to explain, rather than a failure to give evidence, one cannot help but wonder whether directions of this nature can be reconciled with the presumption of innocence principle.

It is clear however, that an innocent party may suffer calamitously from any limitation placed on a person’s right to silence.