I. ORIGIN OF THIS REPORT

1.1 As part of its Evidence reference the Commission issued a Discussion Paper Unsworn Statements of Accused Persons in 1980 to provoke discussion and comment. A limited number of persons responded, perhaps due in part to the fact that the Commission did not announce any time within which it proposed to report. The Australian Law Reform Commission had been given a reference to review the law of evidence in 1979. Thereafter members and staff of this Commission consulted with the Australian Law Reform Commission with a view to co-ordinating their efforts, but no further work has done by this Commission on this particular topic.

1.2 In 1982 the Attorney General gave a reference to the Commission to inquire into and review the law and practice relating to criminal procedure, the conduct of criminal proceedings ,and matters incidental thereto. The detailed terms of reference are set out on page 7 of this Report. Work on the reference was commenced and a first Issues Paper, General Introduction and Proceedings in Courts of Petty Sessions was published in 1982. Thereafter progress on the reference was suspended because of changes in the membership of the Commission. Work was resumed in late 1984. The terms of the Criminal Procedure reference clearly require the Commission to address the question of the right of an accused person to make an unsworn statement.

1.3 The matter became a topical issue in mid 1985 for a number of reasons.

• A private members Bill for the abolition of the right to make an unsworn statement was introduced into the Victorian Parliament in early 1985. The debate was adjourned until 1 October 1985. That date was chosen because the Law Reform Commission of Victoria had been previously directed to report on the topic by 30 September 1985.
• Although the South Australian government had specifically reaffirmed the right in 1983, with certain reforms, it was announced in July 1985 that legislation was to be introduced in the next session of Parliament to abolish the right subject to a limited discretion in the trial judge, to be exercised in the absence of the jury, to permit an accused person to make a statement if to permit it would result in injustice by reason of diminished intellectual capacity or inability of the accused to express himself.
• The Australian Law Reform Commission published its lnterim Report on Evidence in August 1985. Whilst covering the whole field of evidence the report contains extensive discussion and recommendations concerning the use of unsworn statements in criminal trials.
• These developments took place against a background in which a number of jurisdictions had moved to abolish the right in recent years, most notably Queensland (1975), Western Australia (1976), England (1983) and Northern Territory (1984).
• Preliminary discussions which members of the Commission had had with various people who practise regularly in the higher criminal courts had revealed the law and practice relating to unsworn statements to be a matter of some concern.

1.4 For various reasons, which are discussed at paras 1.6-1.8, the Commission decided to report on this issue by 30 September 1985 as part of its Criminal Procedure reference. For that reference the Commission is constituted by a Division whose members are Mr Paul Byrne (commissioner in charge), Mr Greg James QC, Mr Keith Mason QC, Her Honour Judge Jane Mathews, Miss Deirdre O’Connor, The Honourable Mr Justice Adrian Roden and Mr Ronald Sackville. These people bring a wide range of practical and academic experience and significantly for present purposes, have considerable experience in appearing for both the prosecution and the defence in criminal trials. The Commission acknowledges the considerable assistance given by Ms Anna Nemanic who did the background research for the Report.

1.5 In the course of our consultation the question was raised why the Commission was dealing with this topic at this stage. It was suggested that it would be unwise to proceed to report on the issue in isolation divorced from an overall conceptual framework underpinning the entire Criminal Procedure reference. It was also argued that there were other areas of criminal procedure calling for more urgent attention

1.6 In our view it is possible to state various well-accepted general principles and to apply them to the particular issues raised by unsworn statements in criminal trials: we proceed to do so in paras 1.12-1.23. The topic is a relatively discrete one and has been the subject of separate consideration by various law reform agencies. The present rules and practices surrounding the right in New South Wales have been questioned and criticised in recent years. indeed we consider it important that the harsh and justified criticisms made by the Court of Criminal Appeal in R v Greciun-King¹ should not go unanswered indefinitely.

1.7 A critical factor in our decision to deal with the matter at this stage is that it is under active consideration by the Law Reform Commission of Victoria and the Australian Law Reform Commission. In an area already beset by widely diverging laws and practices among the States cooperation with other law reform agencies is clearly desirable. Any variations in recommendations should be the product of genuine and enunciated differences of principle rather than a simple reflection of the fortuitous circumstance that different bodies have examined the problem at different times. The Australian Law Reform Commissions Interim Report on Evidence contains a very full review of the law and practice and the competing arguments for and against particular reforms in the area and we gratefully acknowledge the assistance we have received from it. At the 1985 meeting of the Standing Committee of Attorneys General (SCAG) concern was expressed about needless duplication in law reform effort in Australia.

We consider the steps taken by us in this matter reflect (though anticipate) such expression of concern.

1.8 The cooperation between these three Commissions on this topic has been significant. Each Commission has shared with the other the benefits of preliminary research and, except where confidentiality has been required, the information and submissions gathered in the Course of the consultative phases of the respective references. Members of the Australian and Victorian Commissions attended the public inquiry referred to in para 1.11 and thereafter participated in discussions with each other about matters that arose out of it. In addition there has been informal collaboration between members of the Victorian and New South Wales Commissions as each progressed towards its final report in order to ensure that no issue or argument was overlooked. We have also been in close contact with Mr Justice Raymond Watson who is conducting an inquiry into federal criminal law and procedure at the request of the Commonwealth Attorney General.

1.9 The goal of uniformity among Australian courts with a criminal law jurisdiction is not one should be sought simply for its own sake. It is a feature which is nevertheless desirable. Uniformity should theoretically lead to increases in efficiency and a possible reduction in the costs of administering the criminal courts. Where there is consistency of approach among the various jurisdictions, the law, legal knowledge and expertise can be taken across state boundaries. This is of critical importance as the growth of federal criminal law continues. Since the state courts are responsible for hearing charges brought under federal criminal law there is at present because of differences between state laws of criminal procedure, a marked inconsistency in the exercise of federal jurisdiction among the states. That is not a desirable situation and it cannot be seen to be just. If uniformity achieves a greater consistency in the administration of justice within the nation as a whole, then it is something which should be actively pursued.

1.10 A body of written material including academic writings and reports of other law reform agencies was compiled by the Commission's research staff and considered by the Commission. Details of these publications are to be found in Appendix A.

1.11 The Commission decided to hold a public inquiry and to invite interested persons to put submissions in writing or orally. The inquiry was advertised by newspaper and in addition letters were written to judges, practising barristers and solicitors, academic lawyers and relevant interest groups. These letters sought responses to a range of options for reform. The relevant part of the standard form letter is reproduced in Appendix B. The public inquiry which took place on 13 August 1985 was well attended. A number of speakers put their views and more importantly, reasons in support of various alternative options for reform. The Commission also received a large number of written or telephoned submissions. Each of these oral and written submissions has been carefully considered by the members of the Division. A list of the persons and organisations which made submissions is to be found in Appendix C. We are most grateful for the very real assistance that they provided.

1.12 As stated in para 1.6 we have addressed the issues raised in this Report against the background of certain principles which we regard as fundamental and generally accepted.² They are at once the foundation upon which our work on this subject is based and the signposts which guide the direction of any movement for change. These principles have played an important role in our assessment of the current law and practice and in the formulation of our recommendations. Naturally the statement of these principles does not lead inexorably to particular conclusions in specific areas. Choices have had to be made as to which principle is to be given priority where two or more conflict in their possible application. Nevertheless these principles are ones which we have sought to obey in this Report. They are certainly not an exhaustive statement of the principles of criminal justice but those which we have used in this part of the reference.

1. The Pursuit of Truth

1.13 One of the objectives of the rules of evidence and procedure at criminal trials should be to ensure that the material presented to the tribunal which is required to determine guilt is truthful and accurate. To this end, the law and practice in the courts should encourage witnesses to give truthful evidence and discourage them from telling lies.

2. The Relevance of Evidence

1.14 The tribunal which is called upon to determine guilt should receive all the evidence presented to it which is relevant to that issue. This basic principle may be departed from (at least in favour of the accused) where there is a valid reason such as unfairness or public policy for excluding evidence which is otherwise relevant. Evidence which is irrelevant to the proof of guilt should where possible be excluded.

3. Minimising the Risk of Convicting the Innocent

1.15 The rules of criminal procedure should minimise the risk that people who are in fact innocent are wrongly convicted. Even if it were regarded as desirable, it is not possible to design a system which will result in all guilty persons being convicted and all innocent persons being acquitted. Human fallibility and the general impossibility of achieving proof to the point of certainty preclude it. In consequence, whatever system is devised, either some guilty people will be acquitted, some innocent people will be convicted or both will occur. We consider the ancient homily that it is better to let several guilty persons go free than to convict one innocent person an undoubtedly proper statement of principle.

4. The Use of Lay juries in Serious Criminal Trials

1.16 It is generally desirable that the trial of serious criminal offences should be conducted before a judge and a representative jury of citizens. If lay persons are to be involved it is necessary for the jury to be given certain information and instructions to enable it to follow the course of the proceedings and to assist it in reaching a conclusion on the question of guilt. (The subject is considered in detail in our Discussion Paper, The Jury in a Criminal Trial.)

5. The Onus and Standard of Proof

1.17 In criminal proceedings the prosecution which brings the charge should bear the burden of proving it. Because of the serious consequences which may flow from the proof of guilt, an accused person should be entitled to an acquittal unless his or her guilt has been established beyond reasonable doubt, Unless the statute creating a substantive offence makes it plain this onus is not to be reversed or undermined by rules of procedure or evidence.

6. The Participation of the Accused

1.18 An accused person has the right to participate in the trial of criminal charges brought against him or her. In formulating rules to prescribe the manner of such participation it should be borne in mind that the accused person occupies a special position in the trial proceedings as the only person who is liable to suffer conviction and punishment.

7. The Privilege against Self-Incrimination

1.19 The accused should not be compelled to assist the prosecution in the proof of the offences with which he or she is charged.

8. The Elimination of Misleading Practices

1.20 The rules of criminal evidence and procedure should embody practices which are open and realistic and take account of current standards of knowledge within the community. Procedures that are fictitious or capable of misleading juries should be avoided unless the overriding need to ensure a fair trial compels.

9. Consistency of Criminal Procedure

1.21 The rules and practices governing the conduct of criminal proceedings should be applied uniformly by all courts in this State exercising a criminal jurisdiction. This promotes Consistency of results and familiarity of procedure for the participants in the system

10. The Grounds on which the Law should be Changed

1.22 If likely to affect adversely any of the foregoing, any alteration to the law and practice of criminal procedure should not be made unless there is a clearly demonstrated need for reform. Accordingly, those who propose reforms likely to have this effect carry the burden of showing the need for them and the utility and desirability of the new laws or practices which they propose.

Conclusion

1.23 There is no significance in the order in which we have listed these principles. Indeed we would be surprised if others did not consider that they might be differently expressed or Supplemented. Nevertheless they represent signposts for formulating rules for the processes of criminal law which "must seek to reconcile the need to maintain public order and repress crime, with the need to give fair protection and a fair trial to persons accused".³

1. [1981] 2 NSWLR 469. We deal with this case in detail in paras 4.56-4.57.

2. New South Wales Law Reform Commission, First Issues Paper. Criminal Procedure, General Introduction and Proceedings in Courts of Petty Sessions (1982) contains a discussion (chapter 5) of some general principles relevant to the entire Criminal Procedure reference.

3. Oxford Companion to Law (1980), "criminal procedure”. For discussion about an alternative approach see note 2 at paras 5.12-5.15.