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Section 89A Evidence of silence in criminal proceedings for serious
indictable offences (1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper
from evidence that, during official questioning in relation to the offence,
the defendant failed or refused to mention a fact– (a) that the defendant could
reasonably have been expected to mention in the circumstances existing at the
time, and (b) that is relied on in his or
her defence in that proceeding. (2) Subsection (1) does not apply unless– (a) a special caution was given
to the defendant by an investigating official who, at the time the caution
was given, had reasonable cause to suspect that the defendant had committed
the serious indictable offence, and (b) the special caution was given
before the failure or refusal to mention the fact, and (c) the special caution was given
in the presence of an Australian legal practitioner who was acting for the
defendant at that time, and (d) the defendant had, before the
failure or refusal to mention the fact, been allowed a reasonable opportunity
to consult with that Australian legal practitioner, in the absence of the
investigating official, about the general nature and effect of special
cautions. (3) It is not necessary that a particular form of words be used in
giving a special caution. (4) An investigating official must not give a special caution to a
person being questioned in relation to an offence unless satisfied that the
offence is a serious indictable offence. (5) This section does not apply– (a) to a defendant who, at the
time of the official questioning, is under 18 years of age or is incapable of
understanding the general nature and effect of a special caution, or (b) if evidence of the failure or
refusal to mention the fact is the only evidence that the defendant is guilty
of the serious indictable offence. (6) The provisions of this section are in addition to any other provisions
relating to a person being cautioned before being investigated for an offence
that the person does not have to say or do anything. The special caution may
be given after or in conjunction with that caution. Note : See section 139 of
this Act and section 122 of
the Law Enforcement (Powers and Responsibilities) Act
2002 . (7) Nothing in this section precludes the drawing of any inference
from evidence of silence that could properly be drawn apart from this
section. (8) The giving of a special caution in accordance with this section in
relation to a serious indictable offence does not of itself make evidence
obtained after the giving of the special caution inadmissible in proceedings
for any other offence (whether or not a serious indictable offence). (9) In this section– (a) the person does not have to
say or do anything, but it may harm the person’s defence
if the person does not mention when questioned something the person later
relies on in court, and (b) anything the person does say
or do may be used in evidence. Please see the below Website: http://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s89a.html |
What does this all mean?
To summarise section 89A of the Evidence Act 1995,
it basically allows for unfavourable inference(s) to be drawn if a
defendant fails to answer a question in relation to a serious indictable
offence during official questioning in relation to an offence and it
applies only if:
1.
A
special Caution was given to the defendant by the investigating official who at
the time of the caution had reasonable cause to
suspect that the defendant had committed the serious indictable offence; and
2.
The special caution was given before the failure or refusal to
mention the fact; and
3. The special
caution was given in the presence of an Australian legal practitioner who was
acting for the defendant at that time; and
4.
The defendant had, before the failure or refusal to mention the
fact, been allowed a reasonable opportunity to consult with that Australian
legal practitioner, in the absence of the investigating official, about the
general nature and effect of special cautions.
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*This article
correctly reflects the Laws of NSW as at 8th May 2023.
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