Tuesday, July 16, 2013
This article examines the Australian jurisprudence of silence in the context of the ‘right to silence’ claimed by some criminal defendants during trial, and advances the position that, despite arduous effort to describe, classify, evaluate and protect silence, the law makes a lot of noise about a silence that isn’t really there. But a re‐examination of Weissensteiner illustrates what is evident in so much of the case law: in criminal enterprises and in criminal procedure, speech and silence exist on a spectrum, and in shifting contexts. There are times when silence is impossible, and times where it is irresistible. The law is rarely sensitive to the contexts in which silence falls and those in which silence is broken. This article contributes to the emerging jurisprudence of silence. It argues that silence must be heard and interpreted, and it calls for silence to be distinguished from noise, sound, utterance and inadmissible speech.