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22 April 2013

On 20 March 2013 the NSW State Government passed an amendment to the Evidence Act 1995 (the Act) qualifying the right to silence in criminal proceedings. For background and history to the right to silence please see our article Proposed Amendments to the Right to Silence.

The substance of the amendment which is found at Section 89A of the Act is that an unfavourable inference may be drawn from a fact asserted by the defendant at trial, if that fact was not mentioned during official questioning. 1

What is an unfavourable inference?
An "unfavourable inference" is an adverse or negative presumption. The amendment means that if a defendant tries to rely upon a fact at trial that he failed to mention during official questioning, the Prosecutor may submit and the judge/jury may accept, that the fact is a recent invention - the defendant made it up. Prior to this amendment no presumptions of guilt could be made by a defendant's silence.2

What is Official Questioning?
"Official questioning" means questions put to the defendant by an investigating official who at that time was performing functions in connection with the investigation of the serious indictable offence.3

What is a Special Caution
A special caution means a caution given that explains to the person that:

  • he does not have to say or do anything but it may harm the person's defence if the person does not mention something when questioned that he later relies on in court,4 and
  • anything the person does say or do may be used in evidence.5

What are the conditions and circumstances for the amendment to apply?

  • The fact is one the defendant could reasonably have been expected to mention in the circumstances existing at the time, 6
  • The fact must be one relied upon by the defendant at trial; 7
  • A special caution is given to the defendant by an investigating official who had reasonable cause to suspect that the defendant had committed the serious indictable offence; 8
  • The special caution was given to the defendant prior to the defendant failing or refusing to mention the fact;9
  • The special caution must be given in the presence of a solicitor acting for the defendant at the time; 10
  • Before the failure or refusal to mention a fact, the defendant had a reasonable opportunity to consult with that solicitor in relation to the general nature and effect of special cautions; 11
  • The offence in question must be a seriously indictable offence; 12
  • An investigating official must not give a special caution unless satisfied the offence is a serious indictable offence. 13

Exclusions to the amendment
The amendment does not apply if:

  • The defendant is under 18 years of age,14
  • is incapable of understanding the general nature and effect of a special caution, 15 or
  • Where the failure or refusal to mention a fact during official questioning is the only evidence of guilt. 16

Matters Yet to be Determined

  • In relation to a defendant's access to legal advice, what does a reasonable opportunity actually mean?
  • If the investigating official does not have reasonable cause to suspect that a serious indictable offence was committed, the amendment will not apply. However, what constitutes a reasonable cause to suspect?
  • If an investigating official gives a special caution in circumstances where he does not have a reasonable cause to suspect a serious indictable offence has been committed, and as a result a defendant waives his right to silence and gives a record of interview, will that record of interview be admissible in proceedings for other offences?

1S89A(1)
2Petty v the Queen (1991) 173 CLR 95 at 97
3S89A(9)
4S89A(9)(a)
5S89A(9)(b)
6S89A(1)(a)
7S89A(1)(b)
8S89A(2)(a)
9S89A(2)(b)
10S89A(2)(c)
11S89A(2)(d)
12S89A(1)
13S89A(4)
14S89A(5)(a)
15S89A(5)(a)
16S89A(5)(b)