A witness's silence or unresponsiveness when the substance of a prior statement is put to them in cross-examination does not automatically satisfy the requirement under s 106(1)(a)(ii) of the Evidence Act 1995 (NSW) that the witness 'denied, or did not admit or agree to, the substance of the evidence'; the inference to be drawn from silence depends on the circumstances, including whether the witness has affirmed the truth of the prior statement and expressed reasons for not wishing to give evidence. The mere fact that a witness refuses to answer questions does not establish that 'all reasonable steps' have been taken to compel the witness to give evidence for the purposes of cl 4(1)(g) of the Evidence Act; the Crown must adduce evidence of steps taken, which may include warning of contempt, providing access to a Witness Assistance Officer, and allowing the witness to obtain legal advice.
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