Section 89 of the Evidence Act 1995 does not prohibit cross-examination of an accused on lies told to police or matters deliberately omitted from a police interview; it only prevents drawing unfavourable inferences from a failure or refusal to answer. The Crown remains obliged to lead evidence of an accomplice witness's guilty plea, sentence discount, and cooperation undertaking to enable the jury to assess credibility. A trial judge's approach of directing the jury specifically as to what evidence is available in each accused's case, rather than directing as to what is not available, may be adequate to prevent misuse of evidence in a joint trial.
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