As presently advised, The Commission sees the major options as:
1. Retain the existing law and practice and extend it to summary proceedings
2. Retain the existing law and practice
3. Retain the right with changes:
(a) For certain crimes only
(b) for unrepresented accused only
(c) allow cross-examination after the accused has had an uninterrupted “say”
(d) exclude the cumulative right to make a statement and give sworn evidence
(e) require the accused to submit a draft statement in writing to enable the trial judge to direct the exclusion of inadmissible or otherwise improper material in advance
(f) allow the judge to comment on the accused's failure to give sworn evidence with or without statutory prescription of nature of comment
(g) require the judge to inform the accused in the presence of the jury of his or her alternative rights
(h) allow the judge to explain to the jury the accused's alternative rights (without comment):-
- only if jury asks (cf R v Greciun-King [1981] 2 NSWLR 469); or
- in all cases
(i) allow the prosecution to comment on the accused's failure to give sworn evidence with or without statutory prescription of nature of comment
(j) provide that the accused loses the right of last address if he or she makes an unsworn statement.
4. Abolish the right to make an unsworn statement.
5. Abolish the right with safeguards:
(a) standard form of judicial comment
(b) power to allow particular accused to make unsworn statement
(c) prohibit certain lines of cross examination (cf s413A of NSW Crimes Act)
(d) statutory requirement, if objection is taken, for the judge to curb unfair cross-examination.
In addition there are a number of incidental matters regarding the practice of making an unsworn statement that require clarification These include:
(a) the right to read/ prohibition on reading
(b) the right to tender exhibits “proved” merely by unsworn statement/prohibition of same
(c) the courts power to control inadmissible material (cf s409C of NSW Crimes Act and 3(e) supra)
(d) counsels right to prompt or remind
(e) counsel's role in assisting in preparation of statement
(f) the evidentiary status of the statement including availability for or against co-accused
(g) co-accused's right to cross-examine another co-accused who makes an unsworn statement (cf 405(l) of NSW Crimes Act)
(h) the Courts power to limit the length of an unsworn statement
(i) the right to make an unsworn statement relating to sentence and its status
(j) the apparent anomaly created by s413A which allows a person who makes an unsworn statement to attack the character or credibility of a prosecution witness with impunity but denies that privilege to an accused person who gives evidence.
