Special Bulletin 31 — August 2013

Right to silence — the effect of s 89A of the Evidence Act 1995


On 1 September 2013, s 89A of the Evidence Act 1995 comes into operation on the commencement of the Evidence Amendment (Evidence of Silence) Act 2013: LW 23.08.13. This provision will alter the right to silence of an accused in some cases. It may cause difficulties for trial judges and magistrates in determining first, whether the section applies in a particular case; and secondly, what effect, if any, it has upon the defence case. The section does not affect proceedings the hearing of which commenced before 1 September 2013: Sch 1[4] of the amending Act. For matters on indictment it does not apply where the accused has already been arraigned: see GG v R (2010) 79 NSWLR 194 at [68], [86]. Nor does s 89A apply to any failure or refusal to mention a fact by an accused before the above date: Sch 1[4] of the amending Act. Although it has a limited operation, the section may have some impact on magistrates in summary proceedings for serious indictable offences heard after the commencement date.

The operation and limitations of the section were discussed by Justice Megan Latham in “How will the new cognate legislation affect the conduct of criminal trials in NSW?” (2013) 25(7) JOB 57 and also in a recent law legislation item on JIRS. As her Honour noted, there is a similar provision in the United Kingdom. It has been the subject of consideration in a number of cases in that jurisdiction and resulted in model jury directions to deal with its effect. This Bulletin draws heavily on the experience of courts in that jurisdiction where the provision has operated for a number of years.

In summary, s 89A permits unfavourable inferences to be drawn against a defendant who relies at trial upon a fact that was not mentioned at the time of questioning for the offence charged and where the defendant could reasonably have been expected to mention the fact in the circumstances existing at the time. Such inferences can only be drawn where the special caution is given to the defendant who has been provided with legal assistance in respect of the caution. The provision only applies to offences carrying a maximum penalty of life imprisonment or a term of imprisonment of five years or more. It does not apply to a defendant under the age of 18 years. An equivalent section has not been enacted in the Commonwealth Evidence Act 1995 (which applies to proceedings in a federal or an ACT court). Section 23F of the Crimes Act 1914 (Cth) sets out the caution given for Commonwealth offences. An issue arises as to whether s 23F is exhaustive on the subject (see Hili v The Queen (2010) 242 CLR 520 at [52]) and whether s 89A(6) alters the law. It provides that the provisions of s 89A “are in addition to any other provisions relating to a person being cautioned before being investigated”.

The special caution is additional to any other caution to be given to a suspect, for example under s 139 of the Evidence Act (NSW). It may be given before or after any other caution. A nice question may arise where a special caution has been given but the charge finally prosecuted is one to which the special caution does not apply. There may be an issue as to whether the special caution amounted in some way as an inducement or threat in a case where otherwise the defendant would have had an unqualified right to silence.

It should be noted that any unfavourable inference arises because of the omission to mention a fact later relied upon, and not because the defendant merely remained silent. The general right of silence remains and would be infringed if the defendant were convicted solely upon an inference arising under the provision. Section 89A(5) does not permit that situation. A trial judge would be required to remind a jury of the general right of silence if the jury were instructed on the availability of an adverse inference.

Of course, if the fact later mentioned is indisputably true, no unfavourable inference can be drawn against the defendant. This is because the unfavourable inference arising from the failure to mention a fact is that it has been fabricated since the interview and is not true. There can be no unfavourable inference arising from the non-disclosure of a fact that is true: R v Webber [2004] 1 WLR 404; [2004] UKHL 1; R v Chivers [2011] EWCA Crim 1212 at [43]–[44].

The fact must be relied upon by the defence at the trial but it is sufficient if it is a fact positively relied upon arising from answers during cross-examination by the prosecution: R v Webber, above. Justice Latham’s article (at p 58) comments on the broad application that has been applied to a fact later relied upon at trial under the UK provision.

It is a question for the jury to determine whether the defendant could, in all the circumstances existing, reasonably have been expected to mention a particular fact at the time of questioning. It has been held that the relevant circumstances would include matters such as: the time of day; the defendant’s age; experience; mental capacity; state of health; sobriety; tiredness; knowledge; personality and the legal advice given: see R v Argent [1997] 2 Cr App R 27 at [32]. The question is to be decided by a consideration of the actual defendant and not some hypothetical construct.

One of the facts that can be taken into account is that the defendant asserts that the failure to mention a fact was a result of legal advice. The jury is entitled to consider whether, even in light of legal advice, it was unreasonable for the defendant to fail to mention a fact later relied upon or whether the advice may not have been the true explanation for the failure to mention a fact. It has been held that “[i]f … it is possible to say that the defendant genuinely acted upon the advice, the fact that he did so because it suited his purpose may mean that he was not acting reasonably in not mentioning the facts.”: R v Beckles [2005] 1 WLR 2829; [2004] EWCA Crim 2766 at [46].

It will be a matter for the jury to determine the significance, if any, to be attributed to the failure to mention a fact. The Judicial Studies Board (UK), Crown Court Bench Book (<www.judiciary.gov.uk/publications-and-reports>, accessed 27 August 2013), suggests (at p 261) that the available inferences arising are:


the fact relied on is true but the defendant, for reasons of his own, chose not to reveal it


the fact now relied on is irrelevant


the “fact” now relied on is of more recent invention


the defendant’s present answer to the prosecution case is fabricated


the defendant is guilty.

The undisclosed fact may, or may not, undermine the defence case. The jury should have explained to them the available inferences, and that an inference may be of limited or no assistance in determining the prosecution case. If the judge decides that no adverse inference can be drawn, the jury should be specifically directed not to draw any inference from the failure to mention a fact.

The Judicial Studies Board (UK), Crown Court Bench Book Companion (2011) suggests (at pp 117–118) that the following matters should be identified with the parties before addresses and in the summing-up: the fact(s) which the defendant failed to mention but is relying upon at the trial; the reasons, if any, given for not mentioning the fact(s); the conclusion(s) which it is suggested may be drawn from the failure to mention the fact(s), usually that it is not true and has been fabricated since the interview.

The section of the Criminal Trial Courts Bench Book, “Silence — evidence of” at [4-100] dealing with the right to silence, will be modified to deal with suggested directions arising from the impact of s 89A.