The Council of the Bar Association opposes the abolition of the right of an accused person at his trial to make an unsworn statement from the dock and has done so since it was first suggested some years ago. The abolition of this right, as provided in Clause 8 of the Crimes and Other Acts (Amendment) Bill now before State Parliament, represents a major abrogation of existing rights. The right to make such a statement has been recognised in New South Wales at least since 1883 and despite the fact that accused persons were not given the right to give sworn evidence themselves until 1891, this entitlement has remained untouched.

Arguments have been advanced in recent years for and against the retention of this right. Some of these are referred to by the Attorney-General’s Criminal Law Committee in its recent report but that Committee was unable to make any firm recommendation either way as it was “after lengthy discussion” “hopelessly divided on the question” (p.7 of Interim Report of Criminal Law Committee).

In the Council’s view, however, the proposed abolition strikes at the principle, embedded in the criminal law, namely that from the moment an accused person falls under suspicion and until the conclusion of his trial he need not answer a single question unless he chooses. The proposed amendment to the law would have the practical effect in many cases of forcing an accused person into the witness box to give evidence and of necessity answer questions in cross-examination.

The Council considers that the dock statement does not give any undue advantage to an accused. As it is the presiding judge usually directs the jury that such a statement is not evidence in the strict sense and was not made on oath and has not been subject to the test of cross-examination, but that they should consider it as a possible version of the facts and compare it with the sworn testimony of the Crown witnesses.

The Council is of the view that on many occasions, furthermore, because of the circumstances in which an accused finds himself in a criminal trial and, in particular, the psychological effect upon him, he is unable to do himself justice in giving evidence from the witness box and submitting himself to cross-examination by the Crown Prosecutor. To equate the position of an accused to that of an ordinary witness is fallacious, in the Council’s view. To force an accused to give evidence is in reality a form of compulsion, which ignores the practical difficulty which must often be imposed upon him and which strikes at the root of the principle referred to above.

[Published with the Association’s kind permission.]