The Act seeks to amend the primary Evidence Act by adding a new s 89A. Previously, s 89 provided that an unfavourable inference must not be drawn from the failure of the defendant to respond to a question.
The "right to silence" has now been amended and section 89A provides that in proceedings for a serious indictable offence an unfavourable inference may be drawn from the defendant's failure or refusal to mention a fact during official questioning that is later relied on their defence. The onus is on the defendant to mention the fact whilst being questioned.
There are a number of preconditions that must be satisfied before an unfavourable inference can be drawn:
A special caution must be given an investigating official;
- the investigating official can only give the special caution where they are satisfied that the offence is a serious indictable offence (maximum penalty of 5 years or more);
- the special caution must be given in the “physical” presence of an Australian legal practitioner who is acting for the defendant;
- the special caution is given before the defendant fails to refuses to mention a fact relied on at trial;
- the defendant was allowed a reasonable opportunity to consult with the legal practitioner in the absence of the investigating official; and
- the defendant is not under 18 years of age or were incapable of understanding the general nature and effect of the special caution.