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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