Citation: R v Jafary [2016] NSWDC 41
Court: District Court of New South Wales
Date: 21 March 2016
Judge(s): Judge S Norrish QC
Background
The accused was investigated in relation to a criminal charge. Police initially administered a standard caution on 13 January 2014, which the accused acknowledged. A second police contact occurred on 2 June 2014, at which point the accused was accompanied by a legal representative.
On that second occasion, police administered a "special caution" under section 89A of the Evidence Act 1995, a provision introduced by the Evidence Amendment (Evidence of Silence) Bill 2013 that allows for adverse inferences to be drawn in certain circumstances when a suspect remains silent during official questioning. The accused declined to participate in an electronically recorded interview. No substantive questions about the alleged offending were put to him.
The Crown raised the matter in the absence of the jury, seeking to address whether evidence of the special caution should be led and whether adverse inferences from the accused's silence could be drawn under section 89A.
Legal Issues
- Whether section 89A of the Evidence Act 1995 was engaged in circumstances where the accused was administered a special caution but declined to be interviewed, and no specific questions were asked about the alleged offending.
- Whether any unfavourable inference could properly be drawn from the accused's refusal to participate in the electronically recorded interview.
Decision
Issue 1: Whether there was relevant "official questioning" for section 89A purposes
The court held that section 89A was not engaged on the facts because there was no relevant "official questioning" of the accused (at [10]-[12]). The accused was only asked whether he wished to participate in an interview, not questioned about the substance of the alleged offence. The questions put to the accused could not reasonably elicit an answer from him about any fact within his knowledge that might later be relied upon in his defence (at [11]-[12]).
The court reasoned that section 89A is directed at a situation where a suspect, during the course of substantive official questioning, fails or refuses to mention a particular fact that could reasonably be expected to be within their knowledge at the time (at [17]). Administering the special caution itself, and asking whether the accused would consent to an interview, did not constitute that kind of questioning.
Issue 2: Whether any unfavourable inference could be drawn from the accused's silence
Even if the court's construction of "official questioning" was wrong, it held as an alternative that no unfavourable inference could properly be drawn (at [19]-[20]). The court observed that it was inconceivable that the accused could have "failed or refused to mention a fact" in circumstances where he had just been told he had the right to remain silent and was asked only whether he wished to be interviewed (at [19]). A general denial of guilt would not constitute a "fact" sufficient to engage the provision (at [19]).
The court also noted that section 89A does not abrogate the right to silence entirely. The provision represents a legislative compromise: it operates where a person participates in official questioning but conceals a fact through silence, not where a suspect simply exercises the right to decline an interview (at [21]).
Orders Made
- No direction on inferences from "silence" necessary or appropriate.
Key Takeaways
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Section 89A of the Evidence Act 1995 requires the existence of "official questioning" before adverse inferences from silence can be drawn. A suspect's refusal to participate in an electronically recorded interview, with no substantive questions about the alleged offending put to them, does not constitute the relevant kind of official questioning (at [10]-[12]).
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Where a special caution is administered but the suspect simply declines to be interviewed, no particular "fact" arises that the suspect could reasonably have been expected to mention. A bare denial of guilt is too general to satisfy that requirement (at [19]).
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The District Court acknowledged that section 89A is novel legislation with very little case law at the time of this decision, and expressly noted that superior courts would in due course need to consider the provision's operation (at [21]).
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Under section 89A, the legislature's intent was to address situations where a suspect participates in questioning but uses silence to conceal facts later deployed in their defence, not to extinguish the fundamental right to decline an interview altogether (at [21]).
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The Second Reading speech of the Attorney General was used as a confirmatory aid to interpretation, consistent with the court's reading of the statutory text, rather than as a substitute for it (at [13]-[17]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
- Evidence Amendment (Evidence of Silence) Bill 2013
Cases
- Not stated