Current Legal Issues Seminars 2018

Mr Weissensteiner was charged with the murder of a couple with whom he had been sailing, for some time, on their boat. He gave inconsistent accounts of the couple’s whereabouts and their bodies were never found. The state of the boat suggested that their departure from it was unplanned. The case against Weissensteiner was wholly circumstantial and he exercised his right to silence before trial and trial. He therefore provided no evidence to displace, counter, or raise a doubt about, the guilty inference the Crown argued was available on the evidence when he was the only one who might have that evidence. Generally, a person accused of a criminal offence has a right to remain silent before trial and at trial and trial judges instruct juries that they may not draw an inference adverse to an accused from their silence. At Weissensteiner’s trial, the trial judge directed the jury that they might more safely draw an inference of guilt from the evidence because he did not give evidence of relevant facts which could be perceived to be within his knowledge. He was convicted of the murders of the couple. He appealed against his convictions. In 1993, the High Court, by majority, dismissed the appeal: ‘ … in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.’ In other words, in cases where an inference of guilt is open on the whole of the prosecution case, an accused person’s failure to testify about matters peculiarly within their knowledge could make it easier for the jury to be satisfied, beyond a reasonable doubt, of the guilty inference. In the years that followed Weissensteiner, the High Court confined the principle to rare and exceptional cases, but very little was heard about it from the early 2000s onward until it was mentioned by the High Court in R v Baden-Clay.

This paper will examine the state of the principle which permits the use of an accused person’s silence in proof of their guilt. It will also discuss briefly Mr Weissensteiner himself, who was deported to Austria in 2004.

Whatever happened to Weissensteiner - The Person and the Principle? (PDF, 519KB)

It has become an orthodoxy in some quarters that fiduciary duties are only proscriptive, forbidding certain actions, and never prescriptive, requiring positive action. I will argue that this is a misunderstanding. My argument will begin by attempting to explain how this orthodoxy arose, and then by challenging the presuppositions that led to it. I will argue that some of the most important duties of a fiduciary are prescriptive duties. My goal is to develop a more accurate understanding of the fiduciary relationship and its many features.

Lionel Smith is interested in all aspects of fundamental comparative private law. He is particularly engaged with how private law understands aspects of unselfish behaviour, and he has an active research agenda in the law relating to trusts, fiduciary obligations, gifts, and unjust enrichment, in civil law and in common law. He is always interested in supervising postgraduate research in these fields.

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Prescriptive Fiduciary Duties (PDF, 375KB)

The Australian High Court in McCloy v NSW adopted ‘structured proportionality analysis’ as part of Australian constitutional law and, in doing so, it appears to have brought Australian constitutional law at least somewhat more into alignment with global constitutional thinking. Almost immediately, however, the move has attracted controversy both within the Court and with external detractors of proportionality who regard it as ill-suited to the Australian constitutional context. This paper will examine the nature of proportionality, having regard to its roots in Europe and its migration through the rest of the world. Although taking the critiques of proportionality seriously, it will seek to show that proportionality is an acceptable method of analysis in Australian constitutional law. However, it will be argued that proportionality poses some challenges for the courts and for the rule of law that require careful navigation.

Adrienne Stone holds a Chair at Melbourne Law School where she is also a  Kathleen Fitzpatrick Australian Laureate Fellow, a Redmond Barry Distinguished Professor and Director of the Centre for Comparative Constitutional Studies.

She researches in the areas of constitutional law and constitutional theory with particular attention to freedom of expression. Her Laureate Fellowship on the theme 'Balancing Diversity and Social Cohesion in Democratic Constitutions' investigates how Constitutions, in their design and in their application, can unify while nurturing the diversity appropriate for a complex, modern society.

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Coming soon

In the past decade the Law Reform Commissions of Queensland, New South Wales and Victoria have addressed references on the content of jury directions in criminal trials. The impetus for these references was the perception that directions that judges are required to give are often excessively long and complex, making it doubtful that they are understood by the intended audience. Allied to this perception, was the concern that the intended audience has ceased to be the jury and has become the appellate court. There is consensus on the desirability of directions that are short and readily comprehensible but there are differing views about how that goal is achieved consistently with ensuring the fair trial of the accused. Victoria alone has addressed the problem by legislation (the Jury Directions Act 2013 since repealed and replaced by the Jury Directions Act 2015 as recently amended). Whether legislative prescription is the answer remains to be seen. Legislative moulding of the substantive criminal law not uncommonly adds complexity as the directions on consent necessitated under amendments to the Crimes Act 1958 (Vic) discussed in R v Getachew (2012) 286 ALR 196 illustrate. On the other hand, the High Court’s endeavour to frame simple, clear directions in Clayton v The Queen (2006) 81 ALJR 439 has been criticised as a trap for young players (Eames, Tackling the Complexity of Criminal Trial Directions: What Role for Appellate Courts, (2007) 29 No 2 Aust Bar Review 161).

Virginia Bell was appointed to the Court in February 2009. At the time of her appointment she was a judge of the New South Wales Court of Appeal. She graduated from the University of Sydney as a Bachelor of Laws in 1977. After seven years as a solicitor with the Redfern Legal Centre, she was admitted to the New South Wales Bar in 1984 and was appointed a Senior Counsel in 1997. Justice Bell practised as a public defender between 1986 and 1989 before returning to the private Bar. Between 1994 and 1997 she was a counsel assisting the Royal Commission into the New South Wales Police Service. Justice Bell was appointed a judge of the Supreme Court of New South Wales in March 1999. She served as president of the Australian Institute of Judicial Administration 2006 to 2008.

Coming soon