Evidence Act 2006

Admissibility rules, privilege, and confidentiality - Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings

32: Fact-finder not to be invited to infer guilt from defendant’s silence before trial

You could also call this:

"You can't be thought guilty just because you stayed silent before a trial."

If you are in a criminal trial, a special rule applies to you. This rule is about what happens if you did not answer questions or talk about your defence before the trial. You cannot be thought guilty just because you stayed silent before the trial. If you are in a trial with a jury, the Judge will tell the jury they cannot think you are guilty just because you stayed silent.

If someone asks you a question before the trial and you do not answer, that cannot be used to say you are guilty. The same applies if you did not talk about your defence before the trial. However, there is an exception to this rule, it does not apply if your silence is something that needs to be proven in the trial.

In your trial, no one can suggest that you are guilty because you did not answer questions or talk about your defence before the trial. The Judge will make sure the jury knows this rule if your trial is with a jury. This rule is in place to protect you and make sure you have a fair trial.

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This page was last updated on 29 June 2025

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM393614.

Topics:

Crime and justice > Courts and legal helpCrime and justice > Criminal law

31: Prosecution may not rely on certain evidence offered by other parties, or

"The prosecution can't use some evidence given by others in court."

33: Restrictions on comment on defendant’s right of silence at trial, or

"What happens if you stay silent in court"

Part 2Admissibility rules, privilege, and confidentiality
Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings

32Fact-finder not to be invited to infer guilt from defendant’s silence before trial

This section applies to a criminal proceeding in which it appears that the defendant failed—
to answer a question put, or respond to a statement made, to the defendant in the course of investigative questioning before the trial; or
to disclose a defence before trial.

If subsection (1) applies,—
no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure of the kind described in subsection (1); and
if the proceeding is with a jury, the Judge must direct the jury that it may not draw that inference from a failure of that kind.

This section does not apply if the fact that the defendant did not answer a question put, or respond to a statement made, before the trial is a fact required to be proved in the proceeding.