Where an accused gives unchallenged evidence that the reason for exercising the right to silence was reliance on legal advice, the Crown cannot invite the jury to draw an adverse inference under s 89A of the Evidence Act 1995 (NSW) without first cross-examining the accused on that explanation. The rule in [name withheld] v [name withheld] applies to the s 89A context. Section 89A does apply to 'mere silence' (refusal to answer any questions) and is not limited to failure to mention particular facts, but the principle of legality has limited application where the legislation expressly addresses the right of silence. Crown cross-examination that invites the jury to view a person of good character with suspicion because they worked with vulnerable children is unfairly prejudicial and may constitute a miscarriage of justice even absent objection at trial.
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