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Where am I now? Lawlink > Law Reform Commission > Publications > Part 4 - Paragraphs 67 to 86
Discussion Paper 9 (1980) - Unsworn Statements of Accused Persons
Part 4 - Paragraphs 67 to 86
67. Lax compliance with the rules of evidence. It was seen above that, though the precis s uncertain, the rules of evidence need not be strictly complied with in the making of an unsworn statement. Certainly they are commonly not complied with in practice. “In South Australia the statement frequently contains a good deal of material which is irrelevant or which would be inadmissible in evidence. The court may, and sometimes does, prevent such matter from being read, but it is not always practicable to do so; it may disconcert an accused person who is reading his statement to be told to omit parts of it. 94 The problem must be even more acute with a statement given orally without being read. 95
68. On the other hand, whilst, as was pointed out in Kilby’s Case, 96 there is a practical difficulty in controlling a statement from the dock, ordinarily no noticeable harm is done by such breaches of the strict rules of evidence as may occur. No doubt, if a really harmful breach occurs, the judge can take corrective action.
69. Comments on unsworn statement. One source of difficulty which the unsworn statement produces under the present law concerns its interaction with the prohibition of comment by judge or Crown counsel on the failure of an accused person to give evidence (Crimes Act, 1900, section 407(2)). No comment may be made on such failure; but a judge is permitted to say, and commonly says, that any unsworn statement made is not on oath nor subject to cross-examination.
70. In Bridge v. The Queen 97 Barwick C.J. said:
“I would not wish in the least to disturb authorities which allow the presiding judge to call attention to the unsworn and untested character of the accused’s statement and to compare its weight with that of a sworn and tested statement or, for that matter, to speak of its weight, without actual comparison with other material in the case; but there are very narrow limits within which such a statement must be confined if it is not to amount to a comment upon the accused’s failure to give evidence. The circumstance that jurors may be expected to know that an accused may give evidence on his own behalf and to observe that he has not done so may to some minds bring an air of unreality to the continuing prohibition of the section; but to my mind these circumstances make it all the more important that the presiding judge should not call attention, particularly in his summing up, directly or indirectly, to the fact that the accused has not submitted himself to cross-examination. Reference to ‘the dock’ as the place from which he makes his statement is, it seems to me, unnecessary for the legitimate purpose of calling attention to the relative weight of the statement which the prisoner has made and it must tend, at the very least, to draw attention to the prisoner’s personal position in contrast to the position he might have taken in ‘the box’. In my opinion, therefore, it should be avoided.... The line between what is permissible and what is not is a fine one.”
71. The line is fine indeed if a judge may say a statement is not subject to cross-examination but not be permitted to call attention to the accused person’s failure to submit himself for cross-examination; for how else can it become subject to cross-examination but by the accused so submitting himself? Just how fine was explained in the same case by Windeyer J. who said:
“if the accused neither makes a statement nor gives evidence, the judge may ... comment in general terms on his failure to contradict or to explain evidence for the prosecution. Moreover, if he makes an unsworn statement the judge should, it has been held, direct the jury in their evaluation of it - by telling them that they are to take it into consideration and give it such weight as they think fit along with the sworn evidence, but that it is not evidence in the same sense, as it lacks the sanction of an oath and the test of cross-examination. I find it hard to see how in doing this the judge can ever be sure that his remarks do not amount to a comment on the failure of the accused to give evidence. If, as has been said, any allusion, direct or indirect., bringing to the mind of a juryman that the accused could have given evidence on oath and that he did not do so is forbidden, and if it be assumed, as I think it must be, that some members of the jury will be aware of the right of an accused to give evidence, then any reference to the distinction between an unsworn statement and sworn evidence may invite attention to a failure to provide the latter and be within the prohibition.
The solution that has been adopted lies in ignoring the probabilities that the jury will know of the right of the accused to give evidence on oath and that a reference to the distinction between sworn and unsworn evidence will call it to their minds. The statutory prohibition against comment is taken as disobeyed only if the judge in directing the jury as to the use they may make of an unsworn statement dwells on the topic in such a way as not only to distinguish evidence not on oath from evidence on oath, but also to contrast the course which the accused took with an alternative course open to him which he did not take. This solution may seem to be a compromise reconciliation between a duty to refrain from comment and a duty to give a proper direction. But it has the sanction of authority. Ever since Jackson’s Case 98 the form of words that was there used has been regarded as proper - indeed as a formula to be adhered to ...... That approach is legally safe, though it is hardly logically satisfying.” 99
72. The difficulty in commenting or not commenting on unsworn statements and silence may be seen by the fact that in Bridge v. The Queen 100 three members of the High Court thought the comment improper and two not.
73. On the other hand there exist formulas, long approved by appellate courts for use by judges in instructing juries, which are familiar to judges and those who practise in the criminal courts. One common sample was given by the New South Wales Bar Council in its statement of 25 March 1974. 101 Another variant was cited by the Criminal Law Review Division in its 1977 Report:
“The accused has made a statement to you. That statement was not on oath, nor was it subject to cross-examination. You should take it as, prima facie, a possible version of the facts and consider it, with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with such facts as clearly established by the sworn evidence.” 102
74. They are composites based on the instructions suggested by Griffith C.J. in Peacock v. The King 103 and that contained in Jackson v. The King 104 each of which has often been approved by the New South Wales Court of Criminal Appeal. 105
75 The English Criminal Law Revision Committee says:
“The present rule has another disadvantage in that, if the accused is unrepresented, the court should explain to him that he has the choice between giving evidence on oath or unsworn and the differences between these courses. Since in the great majority of cases the accused, if he intends to give evidence, intends to do so on oath, 106 the explanation is mostly unnecessary anyhow; and it has the practical disadvantage, in the case of an undefended person who is at all nervous, that just at the time when he has to make his defence and should be concentrating on this, he may be put off by the legal technicality of an invitation to consider doing something which he had no thought of doing.” 107
Hoffmann supports this: “there is no doubt that the exact nature of the option must be puzzling to an uneducated person”. 108
76. It can be argued that a jury is being asked to perform hyper-subtle discriminations when it is confronted with an accused person’s unsworn statement as well as his sworn evidence. On the other hand, juries are constantly confronted with the most difficult of all forensic tasks, sifting truth from error, and like judges, have to do their best.
77. Unrepresented defendants. A further difficulty arises in the narrow area of unrepresented accused persons. 109 The problem is that if the accused person elects to make an unsworn statement, it may, strictly speaking, be impossible for the court to ask him questions to elucidate ambiguities or rectify the omission of possible points of defence. There is New South Wales authority that at least some such questioning is permissible. In R. v. Ditton 110 Street C.J. said: “To examine a person about what he has said, that is to ask him questions about it, is one thing. To ask him of something about which he has said nothing, and which he may have forgotten, is another thing. The former is forbidden by the statute. The latter is not. 111 At any rate, it would seem that any extensive questioning can only occur as if the non-existent counsel for the defence were being questioned; and a difficulty arises in distinguishing the argument of counsel from the diluted evidential content of the unsworn statement.
78. On the other hand, any disadvantage which the accused suffers is compensated for by the privilege of making an unsworn statement.
79. Other problems. There are other problems with the unsworn statement. it has occasionally been abused by being protracted beyond reason: John Stonehousels statement lasted five days. That course is calculated to confuse the jury. A related problem is that the statement often consists of lies put into credible form by the ingenuity of counsel. There is a well-known jest about the accused person who opened with the words: “I am not guilty of this statement”.
80. On the other hand, it is quite possible to lie on oath from the witness box. The important questions are, how often in practice is it the lying witness who is destroyed Two views bear on the first question. One is that:
“The exercise of this right of [cross-examination] is justly regarded as one o the most efficacious tests, which the law has devised for the discovery of truth.... It is not easy for a witness, subjected to this test, to impose on a court or jury.” 112
Another is illustrated by the following example:
“When [James Scarlett] cross-examined he did so to bring out the facts on which he intended to rely, not to shake the witness’ credit, which was generally ‘a vain attempt’.” 113
81. The fear of cross-examination as a deterrent against lying is another consideration. It may well have effect in the case of a person who gives sworn evidence. But it can have none in the case of a person who makes an unsworn statement.
82. Other jurisdictions. The right to make an unsworn statement does not exist in Western Australia. 114 It was abolished in New Zealand in 1966. 115 Its abolition has been recommended by the English Criminal Law Revision Committee, 116 and by the Criminal Law and Penal Methods Reform Committee of South Australia. 117 It is seemingly not found in America since the grant of the right to testify. 118 Nor is it found in Canada. 119 It does not exist in Scotland. 120 It remains in England and in the Australian States except for Western Australia.
83. Judges have often attacked the right. 121 Among the writers which favour its abolition are - Cross, 122 Cowen and Carter, 123 Glanville Williams, 124 Hoffmann, 125 and C.R. Williams, 126 and much judicial criticism can be found. 127 On the other hand, a sub-committee of the Chief Justice’s Law Reform Committee of Victoria and the Committee itself, recommended against abolition. 128 The Bar Council of England and Wales opposed the English Criminal Law Revision Committee’s proposal to abolish it. 129 Similarly, when the Crimes and Other Acts (Amendment) Bill, which contained a clause providing for abolition, was before the New South Wales Parliament in March 1974, the proposal was publicly opposed by a former Judge of the Supreme Court 130 and by the New South Wales Bar Council. 131
84. A summary. On the one hand it may be said that the unsworn statement is part of an established system, which may not be completely logical, but which has for 88 years achieved a rough but satisfactory balance between the prosecution and the accused. It superseded a system which permitted the accused no right to give sworn evidence at all and which, less than a century earlier, had given him no right to legal assistance in cases of felony. An illustration of an illogical part of the system is that the accused can make any admission he chooses to police officers out of court where he is completely unprotected, but, in court, where he has the protection of the judge, he may make no admission unless he has a lawyer who advises him to do so. Though there may be cases where the accused was wrongly acquitted because of an unfair advantage given by the right to make an unsworn statement, they have not come to our notice. To pull out one part of a roughly balanced system that has persisted in the main unchanged since the compromise of 1891, 132 and that a very sensitive part, without a thorough weighing and investigation of the whole of criminal procedure both in and out of court as well as evidence, is likely unduly to upset the balance. The review of criminal procedure as a whole is not the subject of this Paper.
85. On the other hand it is argued that, at the end of the nineteenth century, reforms were made in order to redress the balance because the prosecution had been excessively favoured. The time has now come to redress a balance which unduly favours the accused. In 1974, the enactment of sections 413A and 413B of the Crimes Act, 1900, removed the main part of any unfair risk which the accused ran by submitting to cross-examination, namely the bringing out of his criminal record, if he had one. 133 In other Papers on Evidence produced by the Commission an extensive discussion of the system as a whole is made with suggestions for read justment. One of those readjustments which would remove any remaining unfair part of that risk from the accused is the proposal to repeal section 413A(4). 134
86. We have set out, in this Paper, to advancements for and against the continuance of the unsworn Statement without, at this stage, proposing any resolution of them. We will be grateful to have our attention directed to other points which should guide our deliberations, as we will be obliged to have any other comments for or against continuing the present practice.
FOOTNOTES
94. South Australian Committee (1975), ch.7, para.7.3.3.
95. Reading a statement is very rare in New South Wales, though apparently not in South Australia.
96. See para.18.
97. (1964) 118 C.L.R. 600, at p.605; see also Bataillard v. The King (1907) 4 C.L.R. 1282, reversing R. v. Macfarlane [1907] 7 S.R. (N.S.W.) 149.
98. (1918) 25 C.L.R. 113.
99. (1964) 118 C.L.R. 600, at pp.616-7.
100. (1964) 118 C.L.R. 600.
101. Appendix to this Paper.
102. Criminal Law Review Division (1977), p.32.
103. (1911) 13 C.L.R. 619.
104. (1918) 25 C.L.R. 113.
105. Peacock v. The King in R. v. See Lun & Welsh (1932) 32 S.R. (N.S.W.) 363; R. v. Kilby (No. 2) (1969) 91 W.N. (N.S.W.) 849; Jackson v. R. in R. v. MacMillan [1968] 2 N.S.W.R. 300; R. v. Denton (1958) 75 W.N. (N.S.W.) 86 and see Bridge v. The Queen (1964) 118 C.L.R. 600, at p.617.
106. This is by no means true in New South Wales.
107. 11th Report (1972), para.104. As a result of legal aid, there are very few accused unrepresented in jury trials in New South Wales today.
108. Hoffmann (1970), p.266.
109. The area is only narrow for trials on indictment, but these are the only trials in which unsworn statements are permitted; see para.3.4.
110. (1927) 44 W.N. (N.S.W.) 87, at pp.87-8.
111. See also R. v. Sheehan [1926] S.A.S.R. 243.
112. Taylor (1920), p.978.
113. Holdsworth (1965), p.469.
114. The accused may be permitted to make such a statement but this is not common: Edwards (1974), p.330.
115. Crimes Amendment Act 1966, s.5, inserting s.366A(1) into the Crimes Act 1961.
116. 11th Report (1972), paras 102-6.
117. (1975), ch.7, para.7.3.5.
118. Wigmore, para.579, nn.6 and 7.
119. See above, n.65.
120. Walker and Walker (1964), p.380.
121. See C.R. Williams (1976), p.503, n.15.
122. Cross (1974), s.166.
123. Cowen and Carter (1956), p.218.
124. Williams (1963), pp.71-2.
125. Hoffman (1970), p.268.
126. C.R. Williams (1976).
127. E.g. R. v. Irvine (1884) 5 N.S.W.L.R. 216, at pp.217 and 219; per Martin C.J. and Windeyer J.; R. v. Tyford (1893) 4 N.S.W.L.R. 51; R. v. Smith (1896) 17 N.S.W. L.R. 104.
128. See South Australian Committee (1975), ch.7, para.7.3.
129. Bar Council (1973), para.82(e).
130. Maguire J: Sydney Morning Herald, 27 March 1974.
131. See the Appendix to this Paper.
132. See para.8.
133. See paras 45-48.
134. See para.50.
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