Page 2690 - Week 09 - Thursday, 25 August 1994
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Over a period of time defendants were allowed access to the right to give evidence on oath. I think this occurred in the nineteenth century. But the institution of unsworn statements remained because it was felt that in many circumstances it would be advantageous to a defendant to be able to make that statement without intrusion or interruption by the judge or magistrate or by counsel in the course of a trial. Until very recently, even until today, in a sense, unsworn statements have been viewed as a way of giving a defendant a capacity to defend himself or herself, in line with the ancient view that a trial should, wherever possible, give the benefit of the doubt to a defendant on the assumption that innocence is presumed in a case and that the system is geared around that protection of the position of the defendant while the trial is going on. It is a reminder, even today, of the maxim that it is better for nine guilty men to go free than for one innocent man to be convicted. That is why we have such institutions as unsworn statements. It is very much a part of the training of lawyers that unsworn statements and other things in a criminal trial be built in to ensure that that focus is on, exclusively, the position of the defendant and his or her innocence or guilt.
The Attorney-General made a fairly strong case in his presentation speech for its abolition, on the argument that this institution is anachronistic and archaic, and has been abolished in, at that time, most other jurisdictions in Australia, and today in all other jurisdictions in Australia bar the ACT. The Law Society made representations to the committee about this institution and argued, in the form of Mr Richard Refshauge, of the Criminal Law Committee of the society, fairly well for the retention of these unsworn statements. He argued that it was dangerous for the court to begin to merge the issues of reparation, compensation or consolation for the victim, or even retribution against a guilty party, into the process of the trial itself, and that, with a defendant necessarily being involved in the process of cross-examination in order to present his or her case, that may become an issue. He re-emphasised that the trial, under the present legal system, is solely to resolve the guilt or innocence of a particular party; that it is inappropriate for a defendant to be seen in any kind of adversarial relationship with the victim where the rights of the victim are juxtaposed to the rights of the defendant. It was argued, he said, that there should be no hint of a victim/perpetrator relationship between the victim and the defendant in proceedings before the court, as this would infringe that presumption of innocence on the part of the defendant.
It was also pointed out that a defendant ought to be able to present his or her case in the best way he or she possibly can. That would sometimes mean being able to make a statement without interruption. A suggestion was made by the Law Society, in the course of presenting this submission, that possibly a compromise could be worked out whereby a defendant would be able to make a statement from the dock without making it on oath but still be subject to some examination.
Madam Speaker, the committee considered this issue carefully and noted that other jurisdictions have abolished unsworn statements. It came to the view that, in general terms, it was inappropriate for the ACT to retain this institution of allowing defendants in serious criminal trials to be able to make an unsworn statement from the dock. We did recognise, particularly, that this has allowed some abuse of the process to occur; that it is not uncommon for defendants to make statements in the course of their unsworn statements which simply cannot be substantiated and, indeed, go further and denigrate prosecution or other witnesses in the trial.
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