Type : Focus Paper


The Evidence Amendment (Evidence of Silence) Act 2013 (NSW) amended the Evidence Act 1995 (NSW) by adding a new section 89A.

Section 89A(1) provides:

In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact..
(b) that is relied on in his or her defence in that proceeding.

This provision only applies to "criminal proceedings for a serious indictable offence1", relevantly any offence punishable by imprisonment for at least five years.

The new provision permits an unfavourable inference to be drawn during proceedings for a serious indictable offence in circumstances where a defendant failed to mention during an interview with investigating officials something the defendant relies upon in the proceedings, and of which he/she would have been aware during the investigative phase. This inference cannot be drawn, however, if it is the only evidence of the defendant's guilt.2

The Commonwealth Evidence Act 1995 does not include this section. The NSW Evidence Act 1995 is applicable legislation with respect to the rules of evidence that apply in the trial of a person charged with an offence under the Corporations Act 2001 (Cth) (Corporations Act) (or other laws of the Commonwealth), in NSW.

Whilst the impetus for the new provision was to facilitate police interviews3, this article explores elements to the provision, in the context of Australian Securities and Investments Commission (ASIC) and other government agencies' private examinations, to determine its potential applicability to them.

Investigating Officials

The range of persons that constitute an "Investigating Official" to which section 89A(1) potentially applies is wide.

"Investigating Official" is defined as:

  1. a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
  2. a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences.4

ASIC, and other Commonwealth agencies (i.e. the Australian Taxation Office (ATO) and the Australian Competition and Consumer Commission (ACCC)) have power to require any person to attend their offices and undertake an interview if it has reason to suspect contraventions of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and Corporations Act, or other laws concerning the management of a company or fraud and dishonesty in relation to a company or financial products5, (for company law offences). By Section 23B Crimes Act 1914 (Cth) Australian Federal Police members are investigating officials for the purposes of that Act and so to are Commonwealth investigative officers if they have power to make arrests for offences under relevant legislation. Generally, it is the Federal Police who make arrests on referrals from the other statutory bodies.

To potentially enliven the provision, ASIC and other Commonwealth agencies must have reason to believe the examinee has committed a serious indictable offence.6 The belief does not need to be based on reasonable grounds. Whether a serious indictable offence is being investigated is to the particular agency's discretion, depending on the circumstances of the investigation.7

ASIC and other Commonwealth agencies' examinations are conducted by specified members or staff members.8 It is likely those officers are Investigating Officials as defined under section 3(b) Evidence Act 1995 (NSW), as the examiners are appointed and exercising their powers under the relevant statute to investigate possible serious indictable offences.

The conduct of the examinations likely constitute "official questioning" as defined under section 89A(9).9

Special Caution

Section 89A(1) captures a failure to mention a fact that the examinee could reasonably have been expected to mention in the circumstances existing at the time. Therefore, regardless of whether specific questions are asked, section 89A may apply and a negative inference may be drawn, if examinees do not provide all known information relating to the circumstances at the time.

Section 89A(2) further stipulates that the inference can only be drawn if an investigating official provides a "special caution" to the person before the failure or refusal to mention a fact.

A special caution is a caution to the effect that saying or doing nothing may result in an inference being drawn that may harm the person's defence because of his/her failure or refusal to mention a fact that is later relied on at trial.10 It may be a direct inconsistency with Section 23F Crimes Act 1914 (C'th), whereby the investigating official must give a caution before a person starts to answer questions that the person does not have to say or do anything, but that anything the person does say or do may be used in evidence.

Formal Notices of Examination

Prior to an ASIC examination, a formal notice of examination in the prescribed form, which states the general nature of the matter being investigated, must be issued on any person being examined.11 The notice must notify the examinee of the examinee's right to have their lawyer present, who may address the inspector and re-examine, and the abrogation of self- incrimination privilege.12 Notifications with words to the same effect are set out under a section 15513 notice issued by the ACCC, and under a section 26414 notice issued by the ATO.15

In a formal examination by the Commonwealth agencies, the examinee must answer all questions put to him or her. An answer given under an ASIC or ACCC examination may be (and usually is) required to be on oath16, whereas it must be given on oath in an ATO examination.17 The right to silence is removed by sections 68 of the ASIC Act, 155(7) of the Competition and Consumer Act and 8D of the TAA, which state that an examinee cannot refuse to, or fail to, give information. There is no discretion to refuse to, or fail to, answer a question.

Examinees can claim privilege against self-incrimination before responding to each question. The answer cannot be admitted in evidence in criminal or penalty proceedings,18 however is admissible in civil proceedings, proceedings for a disqualification order or banning order and proceedings against other persons.

Examinees that refuse to give an answer or fail to mention a fact expose themselves to being liable for contempt of the various agencies or the legislation. To illustrate, contempt of ASIC or the ASIC Act may attract penalties including $11,000.00 or 2 years in prison, or both.


The requirement under section 89A(2)(c) and (d) is that the special caution must be given in the presence of an Australian legal practitioner who was acting for the defendant at that time whom the defendant had been allowed a reasonable opportunity to consult with about the general nature and effect of special cautions. Presence is not defined, but its everyday interpretation means that the solicitor must be physically present.19

The provision can be circumvented if the examinee does not instruct a solicitor to be present.

This has serious implications as solicitors may be in a position where it is arguably in the best interests of their client to not have a solicitor present at examinations, to avoid the consequences of the special caution, particularly in circumstances of a failure to mention a fact. That is a reality for a solicitor, for example, who attends the NSW Police for an alleged fraud (which can also be a breach of Commonwealth legislation). However because a special caution explicitly pertains to the right to remain silent, which does not arise in ASIC and other specific Federal regulator examinations, it would appear not to have application to those examinations (but may in certain Australian Federal Police examinations). In those Federal agencies examinations there is an obligation to answer specific questions, but with privilege against self-incrimination able to be claimed. However in a police interview there are significant advantages also to the person being examined having a solicitor present; the solicitor may remind the examinee to refuse to answer questions, to clarify questions which may be confusing or ambiguous and preserve rights of clarification by reply to particular questions. The solicitor may also seek to seek a brief adjournment of the examination/investigation to properly take client instructions. All this is obviously lost if there is not a solicitor present.


It is unlikely that the new legislation applies to many Commonwealth regulatory examinations in NSW for serious offences but will apply to State examinations, (but not including by the Independent Commission Against Corruption where it is also compulsory to answer questions – see Section 37 Independent Commission Against Corruption Act 1988 (NSW)). It likely will apply to most Australian Federal Police examinations in NSW but there may be inconsistency between State and Commonwealth legislation. If so, the latter prevails by Section 109 Constitution. The examinee of a NSW State based investigation needs to consider whether to have a solicitor physically present during the examination and to volunteer material information at the examination even if not otherwise questioned on it, in order to preserve rights at trial. However to volunteer information may give the regulator information on which to prosecute the examinee or others, which it was otherwise unaware of, or lead to a trail of further enquiry in that regard. On balance it is our view that an examinee is better served by having a solicitor present, but the examinee needs to be informed in advance of the potential adverse implication by doing so arising from the new legislation. It is also anticipated that, at least initially, NSW regulatory authorities other than the State Police may not appreciate that the special caution legislation could apply to their examination and in the absence of giving a special caution any adverse inference by the failure to mention a fact would not be able to be drawn in a criminal trial. It is important if a person is being examined in New South Wales for the relevant legislation to be reviewed to see whether question answering is compulsory, or not and thus to see whether the special caution has application.


1A "Serious indictable offence" is an indictable offence punishable by imprisonment for life or for a term of 5 years or more.
2Evidence Act 1995 (NSW) Section 89A(5)(b).
3Evidence Amendment (Evidence of Silence) Bill 2013, Second Reading- The Hon. Michael Gallacher, Wednesday 20 March 2013.
4Evidence Act 1995 (NSW) Section 3.
5ASIC Act Section 13(1).
6Evidence Act 1995 (NSW) Section 89A(4).
7Evidence Amendment (Evidence of Silence) Bill 2013, Second Reading -The Hon. Michael Gallacher, Wednesday 20 March 2013.
8ASIC Act Section 19(2); Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act) Section 155(1)(c) and Taxation Administration Act 1953 (Cth)(TAA) Section 8D(1).
9official questioning of a defendant in relation to a serious indictable offence means questions put to the defendant by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of the serious indictable offence.
10Evidence Act 1995 (NSW) Section 89A (9).
11ASIC Act Sections 19(2) and 19(3); and Form 1 Schedule 1 ASIC Regulations 2001 (Cth).
12ASIC Act Section 19(3)(b). 13Competition and Consumer Act see Sections 155(5) and 155(7).
14Income Tax Assessment Act 1936 (Cth) Section 264.
15Dunkel v FCT (1990) 21 ATR 1279 (FCA).
16ASIC Act Section 19 and Competition and Consumer Act Sections 155(3) and 155(3)(A).
17TAA Section 8D( 2).
18ASIC Act Sections 68(3) and 76(1)(a) and Competition and Consumer Act Section 155(7).
19Evidence Amendment (Evidence of Silence) Bill 2013, Second Reading- The Hon. Michael Gallacher, Wednesday 20 March 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.