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Week 5 (Tutorial 4) – Calling Witnesses; The Right to Silence 1. What are the differences between s89 and 89A and how are they related? Section 89 explains, in regards to the right to silence, that an unfavourable inference MUST NOT be drawn from evidence where person failed or refused: a) to answer one or more questions or b) to respond a representation. Silence in these circumstances cannot be treated as an admission or a basis for inferring that a defence advanced at trial is less credible. Section 89A rather provides that unfavourable inferences can be drawn for serious indictable offences only. An example would be Petty and Maiden v The Queen.  You can raise a defence at first time in trial and have no adverse inference drawn against your silence. However, 89A will allow an inference to be drawn if the accused had not mentioned a fact that they would have been reasonably expected to make in the given circumstances at the time. In addition, this fact is relied on his or her defence in that proceeding (89A).

2.*What are the safeguards in s 89A(5)? Do you think these are appropriate and/or sufficient? “This section does not apply: (a) to a defendant who, at the time of the official questioning, is under 18 years of age or is incapable of understanding the general nature and effect of a special caution, or (b) if evidence of the failure or refusal to mention the fact is the only evidence that the defendant is guilty of the serious indictable offence” It is generally appropriate that this sub section should not apply to people in vulnerable categories. As per section 139, a caution is not properly administered in circumstances where an officer ought to have known the possibility of the accused not understanding the caution.  i.e option to assert a right to silence. As a result, there is a need to make these vulnerable persons understand the nature of the special caution, i.e a guardian present for a person under 18 years of age.

3. Max is on trial for reckless wounding under s35 Crimes Act 1900 which carries a maximum penalty of imprisonment for 10 years. Before questioning Max what must the police do? Evidence will be improper if a caution is not provided adequately by the police (S 139). The caution is only to given if there is sufficient evidence to establish an offence. Since this is a serious indictable offence (Crimes Act 1900 NSW s 4), then s89A will allow an unfavourable inference provided the police have issued a special caution (s 89A(2)).

4. During police questioning Max remains silent but at his trial wants to lead evidence that he was not in the pub at the time of the assault. Advise Max on the consequences of doing this. S89A applies as Max is on trial for a serious indictable offence (Over 5 year; CA 1900 NSW s 4). This means unfavourable inferences can be drawn from his choice to remain silent provided Max had refused to mention a fact that he should have been reasonably expected to make at the time of questioning. The argument that he wasn’t in the pub at the time of the assault would be a fact that Max should have been quite reasonably expected to mention at the time. The prosecution may draw an favourable inference on Max’s pre-trial silence, if Max chooses to lead this evidence as a defence in trial.

5. Max is worried that if he does not give evidence, or call evidence in his defence, that the jury will think he is guilty. Advise Max on what the judge can and cannot do in this situation. Discuss in terms of the cases of Weissensteiner v R [1993] HCA 65 and Dyers v R [2002] HCA 45. At trial, Max may also elect not to give evidence or not call evidence on his or her behalf. Under section 20(2) the Judge, or another party that isn’t the prosecution, may comment on the accused’s election to silence but not to the extent where the comment can infer or suggest the defendant’s guilt. In Weissensteiner, the HCA allowed the trial judge, given the circumstances of the case, to comment that the jury could draw a safe inference of A’s guilt because of his unwillingness to contradict the claims made against him. However, this would be a rare and exceptional case due to the decision being likely to contravene s 20 of the Evidence Act 1995 (NSW)  (Enacted after the decision in Weissensteiner)  A decision of such, post 1995, would interfere with the accused’s right to silence as per section 20. Now an overruled case. The principles laid out in section 20 was further expanded in Dyer v R. The decision also limited the comments that Judges could make regarding the failure of the defence to call upon witnesses that would have been reasonably expected to be called upon. However, a Judge can comment that the jury are not to speculate about what a witness may have said should they have been called upon. Dyer concludes that the accused is not required to give or CALL any evidence.

6. You have been advised by the Prosecution that they will not be calling Susan to give evidence at Max’s trial. As you understand it, Susan can give evidence that Max was with her, out in the carpark, at the time the assault is alleged to have taken place. What issues could arise as a result of the Prosecution’s failure to call Susan as a witness? The prosecution has an obligation to present a balanced case to the court (R v Kneebone). This includes allowing evidence that may be contrary to the Crown’s

case if it is necessary to ensure procedural fairness. A clear issue regarding miscarried justice could arise, provided Susan is a material witness (Apostilides). This decision of the prosecutor to not call a witness i.e Susan, will only constitute a ground for setting aside a conviction if it is seen to give a miscarriage of justice (Apostilides). However, this must concluded by viewing the conduct of the trial as a whole. (Apostilides). The court will look at these circumstances to determine whether the prosecutor’s decision was ‘unsatisfactory’(Apostilides)....