Page 4487 - Week 14 - Thursday, 1 December 1994
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The Bill, as well as abolishing unsworn statements, also provided for increased protection for an accused giving sworn evidence. Section 70 sets out the circumstances when the accused can be asked questions, with the permission of the judge, concerning past convictions for the purpose of attacking their credibility or to show that they were inclined to commit the offence for which they are standing trial.
The amendment provided that in one of those circumstances, where the accused makes imputations on the character of the prosecution or a witness for the prosecution, the accused should be asked such questions only where there are imputations that are not such as would necessarily arise from a proper presentation of the defence. Additionally, an extra subsection was added to expand the discretion of the judge in giving permission for such a question, unless the court is of the opinion that the question is relevant to his or her credibility as a witness and that, in the interests of justice and in the circumstances of the case, it is proper to permit the question to be asked. This additional requirement in the original Government Bill was meant only to relate to questions resulting from the impugning of the prosecutor or his/her witnesses' character, not to the other situations set out in section 70.
The committee has agreed with a submission by the Law Society that the additional discretion should apply to all the situations, not just to the one where the accused has made imputations on the prosecution. They have also written to me on this matter. Their argument was that specifying the discretion may well change the interpretation of the general discretion applicable to all the situations. In their view, there are no circumstances in the other situations where the new discretion would not be appropriate to be exercised.
The ACT is the only jurisdiction where the permission of the judge to ask questions in all the situations exists. In Queensland and Victoria, the judge's permission is required to ask a question where the accused has sought to give or lead evidence of his or her good character or to make imputations on the prosecution, but the discretion is not spelt out. In New South Wales, the permission of the judge is required only where the accused has made imputations concerning the prosecution. Also, New South Wales is the only State that spells out the discretion, and it is in the same terms as the proposed amendment, that is, the interests of justice and the circumstances of the case. While the original Government amendment is in line with the New South Wales legislation, because the ACT is the only jurisdiction which requires the court's permission in all circumstances anyway the Government agrees to the committee's recommendation that the additional discretion should apply to all the situations, although, in my view, in practice it should make no difference to the way the court currently operates. I will present the necessary Government amendments when the Bill is debated. I commend the committee for their work on the Bill. I move:
That the Assembly takes note of the paper.
Question resolved in the affirmative.
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