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  • Amendments to s 89A of the Evidence Act 1995 have created unforeseen consequences for a defendant’s right to silence
  • An adverse inference can be drawn if a defendant in police custody chooses to maintain their right to silence whilst “in the presence of an Australian legal practitioner”

The right to silence came under renewed scrutiny when the NSW Government introduced an amendment to s 89A of the Evidence Act 1995 (NSW) in May 2013. This article reflects on those amendments by discussing the original draft Bill and the intention of the legislature. It also highlights some unforeseen consequences of the new amended Act.

The original draft Bill

In the original draft Bill, the proposed amendment to s 89A of the Evidence Act 1995 was as follows:

  1. In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, in answer to any question or in response to any representation in the course of the official questioning of the defendant in relation to the offence, the defendant failed or refused to mention a fact:
    1. that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and
    2. that is subsequently relied on by the defence in the proceeding.
  2. Such an inference may be drawn only if, before the relevant question or representation was put or made to the defendant:
    1. a supplementary caution was given to the defendant by an investigating official who had reasonable cause to suspect that the defendant had committed the serious indictable offence, and
    2. the defendant was allowed the opportunity to consult an Australian legal practitioner about the effect of failing or refusing to mention such a fact.

This had the effect of allowing an adverse inference to be drawn if certain circumstances were fulfilled as stated in the original draft Bill. Broadly speaking, an unfavourable inference could be drawn from the assertion of the right to silence in certain circumstances. This created great debate in the profession about the practical difficulties in implementing such a suggested amendment, while at the same time protecting a defendant’s right to silence. Examples from England were cited, including having a solicitor permanently employed at every police station to advise clients of their rights. It was argued, however, that the NSW Government and Legal Aid NSW did not have the resources to meet that challenge.

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