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This is a Bill, not an Act. For current law, see the Acts databases.
Evidence Amendment (Evidence of
Silence) Bill 2013
No , 2013
A Bill for
An Act to amend the Evidence Act 1995 with respect to inferences that may be drawn
from the silence during official questioning of persons accused of serious indictable
offences.
See also the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill
2013.
Clause 1 Evidence Amendment (Evidence of Silence) Bill 2013
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Evidence Amendment (Evidence of Silence) Act 2013. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
Page 2
Evidence Amendment (Evidence of Silence) Bill 2013
Amendment of Evidence Act 1995 No 25 Schedule 1
Schedule 1 Amendment of Evidence Act 1995 No 25 1
[1] Section 89 Evidence of silence generally 2
Omit "In a" from section 89 (1). Insert instead "Subject to section 89A, in a". 3
[2] Section 89A 4
Insert after section 89: 5
89A Evidence of silence in criminal proceedings for serious indictable 6
offences 7
(1) In a criminal proceeding for a serious indictable offence, such 8
unfavourable inferences may be drawn as appear proper from 9
evidence that, during official questioning in relation to the 10
offence, the defendant failed or refused to mention a fact: 11
(a) that the defendant could reasonably have been expected to 12
mention in the circumstances existing at the time, and 13
(b) that is relied on in his or her defence in that proceeding. 14
(2) Subsection (1) does not apply unless: 15
(a) a special caution was given to the defendant by an 16
investigating official who, at the time the caution was 17
given, had reasonable cause to suspect that the defendant 18
had committed the serious indictable offence, and 19
(b) the special caution was given before the failure or refusal 20
to mention the fact, and 21
(c) the special caution was given in the presence of an 22
Australian legal practitioner who was acting for the 23
defendant at that time, and 24
(d) the defendant had, before the failure or refusal to mention 25
the fact, been allowed a reasonable opportunity to consult 26
with that Australian legal practitioner, in the absence of the 27
investigating official, about the general nature and effect 28
of special cautions. 29
(3) It is not necessary that a particular form of words be used in 30
giving a special caution. 31
(4) An investigating official must not give a special caution to a 32
person being questioned in relation to an offence unless satisfied 33
that the offence is a serious indictable offence. 34
Page 3
Evidence Amendment (Evidence of Silence) Bill 2013
Schedule 1 Amendment of Evidence Act 1995 No 25
(5) This section does not apply: 1
(a) to a defendant who, at the time of the official questioning, 2
is under 18 years of age or is incapable of understanding 3
the general nature and effect of a special caution, or 4
(b) if evidence of the failure or refusal to mention the fact is 5
the only evidence that the defendant is guilty of the serious 6
indictable offence. 7
(6) The provisions of this section are in addition to any other 8
provisions relating to a person being cautioned before being 9
investigated for an offence that the person does not have to say or 10
do anything. The special caution may be given after or in 11
conjunction with that caution. 12
Note. See section 139 of this Act and section 122 of the Law 13
Enforcement (Powers and Responsibilities) Act 2002. 14
(7) Nothing in this section precludes the drawing of any inference 15
from evidence of silence that could properly be drawn apart from 16
this section. 17
(8) The giving of a special caution in accordance with this section in 18
relation to a serious indictable offence does not of itself make 19
evidence obtained after the giving of the special caution 20
inadmissible in proceedings for any other offence (whether or not 21
a serious indictable offence). 22
(9) In this section: 23
official questioning of a defendant in relation to a serious 24
indictable offence means questions put to the defendant by an 25
investigating official who at that time was performing functions 26
in connection with the investigation of the commission, or 27
possible commission, of the serious indictable offence. 28
special caution means a caution given to a person that is to the 29
effect that: 30
(a) the person does not have to say or do anything, but it may 31
harm the person's defence if the person does not mention 32
when questioned something the person later relies on in 33
court, and 34
(b) anything the person does say or do may be used in 35
evidence. 36
Note. The Commonwealth Act does not include this section. 37
Page 4
Evidence Amendment (Evidence of Silence) Bill 2013
Amendment of Evidence Act 1995 No 25 Schedule 1
[3] Schedule 2 Savings, transitional and other provisions 1
Omit clause 1 (1). Insert instead: 2
(1) The regulations may contain provisions of a savings or 3
transitional nature consequent on the enactment of this Act or any 4
Act that amends this Act. 5
[4] Schedule 2, Part 4 6
Insert after clause 22: 7
Part 4 Provisions consequent on the enactment 8
of the Evidence Amendment (Evidence of 9
Silence) Act 2013 10
23 Definition 11
In this Part: 12
amending Act means the Evidence Amendment (Evidence of 13
Silence) Act 2013. 14
24 Evidence of silence in criminal proceedings for serious indictable 15
offences 16
(1) Section 89A, as inserted by the amending Act, does not apply in 17
relation to a proceeding the hearing of which began before the 18
insertion of that section. 19
(2) Section 89A, as inserted by the amending Act, does not apply in 20
relation to any failure or refusal to mention a fact before the 21
insertion of that section. 22
(3) Section 89A, as inserted by the amending Act, extends to 23
evidence of anything done or omitted to be done in connection 24
with the investigation of offences committed before the insertion 25
of that section. 26
25 Review of policy objectives of amending Act 27
(1) The Minister is to review section 89A to determine whether the 28
policy objectives of the amending Act remain valid and whether 29
the terms of section 89A remain appropriate for securing those 30
objectives. 31
(2) The review is to be undertaken as soon as possible after the period 32
of 5 years from the commencement of this clause. 33
Page 5
Evidence Amendment (Evidence of Silence) Bill 2013
Schedule 1 Amendment of Evidence Act 1995 No 25
(3) A report on the outcome of the review is to be tabled in each 1
House of Parliament within 12 months after the end of the period 2
of 5 years. 3
Page 6
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