Section 89 of the Evidence Act 1995 (NSW) prohibits drawing an inference unfavourable to the accused from the silence of a defence witness during official questioning, not only from the silence of the accused. The reference to 'another person' in s 89(1) encompasses a witness from whose silence an inference adverse to the accused might be drawn. A misdirection regarding a defence witness's right to silence is not necessarily a fundamental irregularity going to the root of the proceedings, and the proviso may apply where the Crown case is otherwise overwhelming.
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