Fluffykins
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- Jun 20, 2014
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This is a rather weighty topic so Ill try and keep it brief. An accused in most countries has a constitutional right to silence and a court cannot convict solely on the basis of an inference drawn from a failure to give evidence. Judges are prepared to acknowledge that silence in the face of incriminating evidence may rationally be used to infer guilt. However, failure to do so will allow the court to draw such inferences as appear proper from a failure to give evidence or refusal to answer questions without good cause.
The threat that the adverse inference poses to due process should not be overstated. The question for the judge/jury is whether silence can only be attributed to the accused having no satisfactory answer to the charge against him.
Adverse inferences may be drawn where before or on being charged, the accused fails to mention any fact which he later relies on and which in the circumstances at the time he could reasonably be expected to mention or fails to give evidence at trial or answer any question. Whether he enters the witness box remains his choice, however, the choice has consequences.
Many think that an accuseds electing not to testify is probative of his guilt. This flows from an assumption about human nature that an innocent accused would act from a desire for self- preservation and want an opportunity to declare and prove his innocence, while a guilty accused would be concerned about revealing his guilt.
Botha said, My client is chomping at the bit to tell his version, and pigs may fly. I wonder if his client is feeling the same way now that he's heard the evidence of Otto and Joubert, not to mention other very incriminating evidence.
Thank you JJ for that info, much appreciated, and apologies for the delayed reply.
I am really quite ignorant about how the justice system operates. If I'd been asked whether a defendant has the right to remain silent, I would have said I think that's probably true in all modern western countries, but I have no idea how that applies to anything else, like a police interview, or a committal hearing - it's all quite over my head.
I've only followed a couple of trials on WS - Gerard Baden Clay and Gable Tostee. I wasn't going to follow the HvB trial, but what drew me in was that I really want to see justice done here. What this guy did was so monstrous, there has to be a punishment to fit the crime.
I noted you posted a photo of Rudi saying it breaks your heart that he was always so happy and smiling. It breaks my heart also, in particular that he was clearly such a lovely young guy, an achiever, prepared to put in the hard yards to get ahead in life. He'd learned that lesson from his dad. It's my belief that HvB's murdering rampage was largely prompted by an enormous, raging jealousy of Rudi; I think HvB would have had a contemptuous attitude towards Rudi as a studious geek, while he, HvB, saw himself as the cool, handsome charming one.
On a different note, I hope you're feeling a bit better today Fluffykins. That sounded like an awful procedure. :hug:
Thank you JJ, yeah, not a lot of fun! It actually knocked me around more the day after and I fell hopelessly behind in this thread. There's been so much evidence since then and I'm still trying to catch up!!