Section 89 — Evidence Act 1995 (NSW)

(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused—
(a) to answer one or more questions, or
(b) to respond to a representation,
put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.
(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.
(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.
(4) In this section—
inference includes—
(a) an inference of consciousness of guilt, or
(b) an inference relevant to a party’s credibility.

Related sections

• s 86 — Exclusion of records of oral questioning
• s 87 — Admissions made with authority
• s 88 — Proof of admissions
• s 89A — Evidence of silence in criminal proceedings for serious indictable offences
• s 90 — Discretion to exclude admissions
• s 91 — Exclusion of evidence of judgments and convictions

Research how courts apply s 89

BriefBridge searches NSW and High Court caselaw by meaning — every answer cited to the paragraph.