Weissensteiner v The Queen

The applicant, Johann Manfred Weissensteiner, sought special leave to appeal to the High Court of Australia against a decision of the Court of Appeal of Queensland. The dispute concerned the propriety of a jury direction given at trial. The applicant argued that the direction, which suggested a jury could more safely infer guilt from an accused's failure to give evidence when important facts were within their knowledge, was incorrect.

The central legal issue before the High Court was whether such a direction to a jury was permissible, particularly in light of the High Court's previous pronouncements on the right to silence in cases such as *Petty v The Queen* and *Maiden v The Queen*. The applicant contended that this direction created an apparent conflict with the principles established in those cases. The Court of Appeal, in its leading judgment, had acknowledged this as a principal and difficult question.

The High Court considered the trial judge's direction, which was based on observations in earlier cases, including *May v O'Sullivan*. In *May v O'Sullivan*, the Court had noted that in deciding whether charges were proved beyond reasonable doubt, it might be legitimate to take into account an accused's failure to give evidence as a consideration that could make an inference of guilt from the prosecution's evidence less unsafe. However, the applicant argued that a distinction must be drawn between ordinary reasoning processes and the specific directions that should be given to a jury to protect an accused's right to silence. The Court engaged with whether the *May v O'Sullivan* observation, even if obiter, was disputable in the context of jury directions.