El Hani v The Queen

The case of *El Hani v The Queen* concerned an appeal to the High Court of Australia by the applicant, Mr El Hani, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently sentenced to a term of imprisonment. The central dispute revolved around the admissibility of certain evidence during the trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence that the applicant had remained silent when questioned by police about the alleged murder. Specifically, the court had to consider the application of section 89 of the *Evidence Act 1995* (NSW), which generally prohibits evidence of a person's silence in certain circumstances, and whether the circumstances of the questioning fell within an exception to this prohibition. A further issue was whether the admission of this evidence had occasioned a substantial miscarriage of justice.

The High Court, in its joint judgment, held that the trial judge had erred in admitting the evidence of the applicant's silence. Their Honours reasoned that the questioning by police did not amount to an "investigation" in the sense contemplated by section 89(2) of the *Evidence Act 1995* (NSW) at the time the applicant was cautioned. Consequently, the evidence of silence should not have been admitted. However, the Court found that the admission of this evidence did not occasion a substantial miscarriage of justice, as it was unlikely to have affected the jury's verdict given the other strong evidence of guilt.

Accordingly, the High Court dismissed the appeal and affirmed the conviction.