Page 4427 - Week 14 - Thursday, 9 December 1993
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EVIDENCE (AMENDMENT) BILL (NO. 3) 1993
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (10.37): Madam Speaker, I present the Evidence (Amendment) Bill (No. 3) 1993.
Title read by Clerk.
MR CONNOLLY: I move:
That this Bill be agreed to in principle.
Madam Speaker, the Evidence (Amendment) Bill (No. 3) 1993 abolishes the privilege that an accused person in criminal proceedings has to make an unsworn statement. The use of an unsworn statement places the accused in a privileged position compared with other witnesses, who must provide evidence on oath and submit to questioning by opposing counsel to test the validity of their testimony. Today there exists no compelling reason to preserve this obsolete vestige of nineteenth century legal history. When unsworn statements evolved the accused was not allowed to give sworn evidence, and furthermore, in felony proceedings, was not entitled to legal counsel. This oppressive environment in which the nineteenth century accused found himself or herself clearly warranted the use of unsworn testimony.
Fortunately, we now live in more enlightened times. Now an accused person is legally recognised as a competent witness, meaning that he or she can give sworn testimony in their defence. Furthermore, any accused person is entitled to seek legal representation. The High Court recently has held that there is a common law right to legal aid in serious criminal proceedings, and this Assembly has passed legislation to ensure the right to an interpreter for persons not proficient in English. The right to give unsworn testimony disappeared in the United States and Canada after the accused was given the right to give sworn evidence. More recently, unsworn statements have been abolished in England, New Zealand and most Australian jurisdictions. Today they remain in only New South Wales, Tasmania and the ACT. Both of these other jurisdictions are now acting to abolish what is an unwarranted privilege.
Often the victim of a crime is the only witness to that crime. If court proceedings eventuate it is important that the victim give evidence for the prosecution, which entails a sometimes difficult and painful recounting of the facts of the crime. Then the victim is often subject to cross-examination which can be even more harrowing. This process of testimony and subsequent cross-examination is a necessary and fundamental part of our system of justice, optimising the conditions for the emergence of a recounting of events closest to what actually happened. The use of unsworn testimony by the accused provides him or her with an opportunity to avoid the rigorous requirements of this process. As no oath or affirmation is required, the accused does not have to be concerned about the possible consequences of perjury or false testimony. In some cases such statements are being used by accused persons to launch unjustified attacks upon the character of victims of criminal behaviour. This unfair action does not have the effect of rendering admissible evidence of the accused's own prior convictions or bad character, and this is particularly a concern in sexual assault trials.
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