89. Evidence of silence

89. Evidence of silence

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused-

(a) to answer one or more questions; or

(b) to respond to a representation-

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section, inference includes-

(a) an inference of consciousness of guilt; or

(b) an inference relevant to a party's credibility.

The common law prohibition on the use of silence (or the absence of action) to draw adverse inferences is dicussed in Petty v The Queen (1991) 173 CLR 95. Section 89 supplements the common law and does not extinguish it. This section is narrower in scope than the common law "right to silence" and only relates to questions or representations put to or made by an investigating official: Sanchez v R [2009] NSWCCA 171 at 71.