Assessing Pre-Trial Silence: The Logic, Construction and Utility of Section 89A of the Evidence Act 1995 (NSW)

Complexity arises when prosecutors invite an adverse inference from a defendant’s pre-trial silence under section 89A of the Evidence Act 1995 (NSW). Despite controversy surrounding this provision’s enactment, there has been limited scholarship analysing its underlying logic and application in practice. This article explains how a defendant’s pre-trial silence can logically support the prosecution case, albeit in limited ways. With reference to English cases concerning similar legislation, it then critiques the New South Wales courts’ approach to section 89A. This analysis reveals issues with their consideration of legal advice to remain silent, which diverges from the English approach, and the scope of ‘official questioning’ that may enliven the provision. In all, section 89A inferences involve intricate reasoning and have limited probative value, calling into question whether this curtailment of the right to silence is worthwhile.