Page 4490 - Week 14 - Thursday, 1 December 1994
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The Government has effectively accepted this recommendation but has argued that a specific amendment is not necessary to achieve that - that the general discretion inherent in the court's jurisdiction, that is, a discretion to exclude evidence which would be prejudicial to the accused person, is enough to make sure that that kind of thing will happen.
I understand that very specific use of that discretion is made in other courts in the rest of the country and I accept that this is an acceptable way for our courts similarly to protect such people. It may be that there are practices about where this kind of protection can be afforded. I do not know of a common practice that Aboriginal people or people from, say, a non-English-speaking background might be more likely to gain advantage of that discretion in our courts; but certainly I accept that at least there is an inherent capacity for that to happen, and I welcome that response.
The Opposition supports this Bill and hopes that there can be some monitoring of its effect. The Legal Affairs Committee was not sure that there was any particularly good data on how the position of an accused person had changed subsequent to the abolition of this right in other jurisdictions. I would go so far as to say that there does not appear to be much data on that. It may be that the best way of us knowing that we have made the right decision is to somehow assess, for example, the conviction rates that flow from the increased opportunity that would be availed of to give sworn evidence. Perhaps that can be done within the existing resources of the Attorney-General's Department. Notwithstanding those reservations, it is important for us to accept that this is an anachronism and should be abolished. Accordingly, we support this Bill.
MR CONNOLLY (Attorney-General and Minister for Health) (5.43), in reply: I thank the Opposition for their support for the Bill. Essentially, the committee that had a look at it agreed that this was a sensible thing to do. The Government has picked up one of their key problems, a problem that had also been identified by the Law Society, so I think we are in a position where we are all comfortable with this. Obviously, there will need to be some monitoring of what happens with the abolition of unsworn statements; but with the passage of this Bill tonight the ACT joins the rest of Australia and, by and large, the rest of the common law world in abolishing unsworn statements. While we will keep an eye on it here, I would imagine that there will be some work done in other jurisdictions as well.
This is a piece of law reform that does bring the ACT into line with the rest of the country. As I said in the press statements when we originally moved on this, this really was all about the great injustice that often occurred, particularly in rape trials. The survivor of the sexual assault would be cross-examined and her life made very difficult - yesterday we passed legislation to make that easier through video evidence - and then the accused would get in the box and make an unsworn statement, usually making all sorts of accusations about the victim, and not be subject to cross-examination.
Some years ago a woman could have said that the process of a rape trial was appallingly skewed against the woman because she was subject to often harsh and vicious cross-examination and intimidated in the courtroom in the witness box, whereas the accused could get in and make a statement and not be subject to cross-examination.
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