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Title: The privilege of silence and the persistent risk of self-incrimination: Part I
Contributor(s): Hamer, David Acton (author)
Publication Date: 2004
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Abstract: This article employs probability theory to make sense of the authorities of Australia, the United Kingdom and Canada. It distinguishes the weak confirmatory use of silence from the stronger use of a genuine adverse inference. The latter is warranted where an innocent accused would be expected to testify. The natural urge for self-preservation may lead to such an expectation where the prosecution case calls for a response, the accused has advanced a positive defence or has peculiar knowledge, and has no other innocent explanations for his silence, such as ill health. The High Court's restriction of the inference to circumstantial prosecution cases is criticised, as are its recent contradictory statements on the logic of the inference. This article is published in two parts: Part II will feature in Number 4 of 'Criminal Law Journal'.
Publication Type: Journal Article
Source of Publication: Criminal Law Journal, 28(3), p. 160-178
Publisher: Thomson Lawbook Co
Place of Publication: Australia
ISSN: 0314-1160
Field of Research (FOR): 180110 Criminal Law and Procedure
Peer Reviewed: Yes
HERDC Category Description: C1 Refereed Article in a Scholarly Journal
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