Page 2689 - Week 09 - Thursday, 25 August 1994
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LEGAL AFFAIRS - STANDING COMMITTEE
Report on Evidence (Amendment) Bill (No. 3) 1993
MR HUMPHRIES (11.56): Mr Deputy Speaker, I present report No. 6 of the Standing Committee on Legal Affairs, entitled "Report on the Inquiry into the Evidence (Amendment) Bill (No. 3) 1993", together with extracts from the minutes of proceedings. I move:
That the report be noted.
Members will be aware that some time ago - last year, in fact - the Legal Affairs Committee took on an inquiry into the question of unsworn statements by defendants in criminal trials in the ACT. That was on the advice that there was some view by the Government that this was an issue that needed to be addressed. Subsequently, the Government tabled the Evidence (Amendment) Bill (No. 3) 1993 and the inquiry then shifted to the Evidence (Amendment) Bill itself. The issue was a relatively simple one. It was the issue of whether it was in the interests of justice in the Territory that we continue to allow the use of so-called unsworn statements in criminal trials.
At the present time in the ACT it is possible for a person appearing in a trial in the Supreme Court for an indictable offence, that is, a more serious offence, to be able to present his or her defence in a number of ways. That person has the option of saying nothing. He or she cannot be compelled to appear as a witness in their own trial. Alternatively, that person can give evidence in the normal fashion and be examined and cross-examined as if he or she were an ordinary witness. The third option presently available is the option of the unsworn statement, whereby a defendant can make a statement from the dock. That statement is not interrupted by counsel for the defendant or the prosecution and it is not made on oath. The result is that the defendant is able to put a case without interruption or without further points of view being put during that presentation as to what exactly happened in those particular circumstances.
The institution of unsworn statements is an ancient one. The Attorney-General described it in his presentation speech as an obsolete vestige of nineteenth century legal history. I have to say that that was not quite true. The unsworn statements go back to the Middle Ages. The reason for these statements originally was that a defendant in a trial was assumed to be running a high risk that he or she would tell lies in order to save himself or herself from what was generally a very serious penalty, very often death, even for minor offences. It was felt by the courts of the land, many of which were ecclesiastic in nature, that it was better for a person not to perjure themselves and assure themselves of eternal damnation than it was for them to present the full case of what happened in a particular incident. So, for a very long time we had the anomalous position that a defendant was unable to speak in his or her own trial and had to sit silent while others spoke about what had happened in a particular incident. It was realised after a period of time that that was somewhat unfair, and the institution arose of allowing a statement to be made by the defendant, which was unsworn, on the basis that, since it was unsworn, the defendant could not perjure himself or herself and therefore, would be assured, despite their crime, of having at least the opportunity for eternal salvation.
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