Section 89 of the Evidence Act 1995 (Cth) is not engaged where an accused declines to participate in an interview before any question or representation is actually 'put or made'; the common law right of silence provides broader protection in such circumstances. A misdirection on the right of silence is not necessarily a fundamental irregularity going to the root of proceedings; whether it is depends on the context of the trial including the strength of other evidence. Where an accused who has been cautioned makes statements to officials that are inconsistent with the defence later raised at trial, the prosecution may rely on those inconsistencies even though it cannot rely on the accused's silence.
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