I. THE ACCUSED PERSON’S OPTIONS AND THEIR CONSEQUENCES: THE CURRENT LAW
A. The Unsworn Statement in Contested Criminal Proceedings
1. Trials before a Judge and Jury
2.1 Every accused person on trial before a jury has the right to make an unsworn statement without thereby being liable to cross-examination. Because most of the rules and practices surrounding the making of an unsworn statement are affected by the fact that it forms part of a trial before a jury, it is desirable that the principal features of such a trial should be outlined. In the course of doing so we shall refer to various options open to the accused.
2.2 At the commencement of the proceedings, the indictment is read to the accused who is asked to plead to the offence charged. If a plea of not guilty is entered, the jury will be empanelled.
2.3 In the opening address of counsel for the Crown the main features of the case and the supporting evidence are outlined to the court. The prosecution witnesses are then called and each is required to take an oath or affirmation1 before giving their evidence. Their evidence then proceeds by way of question and answer between the prosecutor and the witness, When each witness for the prosecution completes his or her evidence-in-chief, counsel for the accused has the right to cross-examine the witness to show up any inconsistencies in the evidence; to elicit facts favourable to the accused; or to call into question the credibility of that witness. The prosecution then has the right to re-examine the witness to re-establish any matters of fact or credit left in doubt by the cross-examination.
2.4 After the close of the Crown case, where the accused intends to give evidence or call any witness or witnesses, the accused or his or her counsel may open the case for the defence by addressing the jury.2
2.5 The accused may choose:
- to decline to say anything;
- to make an Unsworn statement;
- to give sworn evidence; or
- to make an unsworn statement and to give sworn evidence.
2.6 The right to decline to say anything is a practical consequence of what we discussed in para 1.19. It is complemented by a prohibition on comment regarding the accused’s failure to give sworn evidence. The prohibition extends to the judge and counsel for the crown but not to a co-accused or counsel for a co-accused.3
2.7 The right at common law4 to make a statement not on oath and not subject to cross-examination was recognised in New South Wales by s470 of the Criminal Law Amendment Act 1883. This was re-enacted in 1900 by s405(l) of the Crimes Act which in its current form 5 provides that:
Every accused person on his trial whether defended by counsel or not, may make any statement at the close of the case for the prosecution and before calling any witness in his defence, without being liable to examination thereupon by counsel for the Crown or by the Court and, after the prosecutor has addressed the jury, or has declined to address the jury, may personally or by his counsel address the jury.
2.8 The unsworn statement should be made before the accused gives or calls evidence.6 If the accused gives sworn evidence the procedures of cross-examination and re-examination referred to in para 2.3 apply. Subject only to a limitation of fairness which may require the prosecution to give prior notice of the full case it relies upon before the accused elects to give evidence, the prosecution may cross-examine the accused on matters directly pertaining to guilt the accused, by entering the witness box, waives any privilege against self-incrimination of that nature.7 However the accused may not be cross-examined on certain matters8 and the judge s overriding duty to ensure that the trial is fair may mean that the accused receives certain protection which might not be generally available to Crown witnesses.9
2.9 Even if the accused elects to make an unsworn statement, he or she is not in law, precluded from later giving sworn evidence. Although the desirable (and usual) practice is that an accused person in a criminal trial should be called to give evidence before other defence witnesses, evidence from the accused at a later stage can not as a matter of law, be excluded.10 If the accused makes an unsworn statement and then gives sworn evidence, cross-examination may extend to anything he or she may have said in the unsworn statement.11
2.10 The accused may call witnesses for the defence, in which case the above procedure of evidence-in-chief, cross-examination and re-examination is repeated.
2.11 When the defence has called all its witnesses, the evidence in the case is usually complete. The prosecution may, however, adduce evidence in reply to matters required to be proved in the defence case or arising unexpectedly in the defence case.12
2.12 The prosecution and the defence then each address the jury in turn. The Crimes Act, 1900 was amended in 1983 to provide that the prosecution addresses first and the defence follows. in rare circumstances the prosecution may obtain leave to address in reply.13
2.13 In the course of the judge’s summing up to the jury, which then follows, directions of law and a summary of the evidence which has been presented at the trial are given. These directions include matters relating to the assessment of witnesses, and evaluation of evidence and any unsworn statement There are prohibitions upon the type of comment that can be made by the prosecution and the judge in relation to an accused who does not give sworn evidence. These are dealt with more fully below (paras 2.30-.1.33).
2. Summary Proceedings
2.14 The right to make an unsworn statement is not available in summary proceedings before a magistrate. The Justices Act 1902 which does not include reference to such a right has been held to constitute an exclusive code with respect to evidence before magistrates.14 Since however the right is one conferred at common law, it would seem to be available in other summary proceedings, including contempt proceedings.15
B. Distinct Consequences of Accused Giving Evidence or Making an Unsworn Statement
2.15 Significant differences result depending on which option the accused chooses. In particular a number of distinct consequences flow depending upon whether the accused gives evidence or simply makes an unsworn statement. It should be stressed, however, that it is dangerous to look at each matter in isolation because the rules on one matter may serve to redress an imbalance caused by the rules in another.
1. Liability to Prosecution for Perjury
2.16 An accused who gives evidence must first take an oath or make an affirmation thereby becoming subject to the rules regarding perjury and false swearing. Perjury is committed where a sworn statement16 is made in a judicial proceeding which is material to that proceeding and which the person making it knows to be untrue or does not believe to be true.17 The temporal consequences of committing perjury are liability to penal servitude for seven years.18 The Crimes Act 1900 also makes it an offence knowingly to make a false statement on oath even when this does not amount to perjury.19 An accused person giving evidence on his or her own behalf may be charged with these offences20 but it is very rare for accused persons to be prosecuted.
2.17 The accused who makes an unsworn statement is not exposed to liability for perjury or false swearing. In addition he or she avoids any of the restraints which may bind the conscience of persons who swear or affirm that their evidence will be true.21
2. Cross-Examination
2.18 Counsel for the Crown and for any co-accused may cross-examine an accused person who gives sworn evidence. If such accused had also made a prior unsworn statement the cross-examination may extend to anything said in that statement.22
2.19 According to s405(l) of the Crimes Act 1900, the accused who makes only an unsworn statement is not liable to examination by counsel for the Crown or by the Court. The fact that cross-examination by a co-accused is not expressly prohibited has been noted elsewhere by this Commission but the issue has not apparently arisen in practice.23
3. Evidence as to Character or Disposition
2.20 It is a well established rule of the common law that generally the Crown may not lead evidence of the accused’s bad character or prior convictions or cross-examine to raise such matters. There are exceptions, such as the “similar facts” rule or when the accused suggests that he or she is a person of good character. In these instances the Crown or a co-accused may lead evidence of bad character, including previous convictions. Nothing turns upon whether the accused raises good character in an unsworn statement or by other means.24 Indeed evidence of the accused’s bad character can and should be led in the Crown case provided that it has become relevant at that stage.
2.21 Sometimes the bad character of a witness may be raised as a matter relevant to the credibility of that witness rather than directly to an issue. Thus a witness may be cross-examined to show that he or she is a person of bad character or that he or she has a criminal record particularly one related to dishonesty. But because of the general attitude of the law expressed in the first sentence in para 2.20, an accused who gives evidence cannot generally be cross-examined by the Crown about his or her own bad character or previous convictions. This is commonly referred to as a shield given to the accused. There are exceptional cases where this shield will be withdrawn including cases where such cross-examination goes directly to an issue in the case (para 2.20). There is however one exception of particular relevance to the subject matter of this Report.
2.22 The accused person’s shield from cross-examination by the Crown as to bad character, where character goes simply to the accused’s credit may be lost if the circumstances of s413A(4) of the Crimes Act 1900 apply. That subsection provides:
Subsection (1) shall not apply if-
(a) the accused person has personally or by his counsel asked any witness for the prosecution or for a person jointly charged with him any question concerning the witness’s conduct on any occasion (other than his conduct in the activities or circumstances giving rise to the charge or his conduct during the trial or in the activities, circumstances or proceedings giving rise to the trial or as to whether the witness has committed, or has been charged with or convicted or acquitted of any offence; and
(b) the Court is of the opinion that the main purpose of that question was to raise an issue as to the witness’s credibility,
but the Court shall not permit a question falling within subsection(l) to be put to an accused person by virtue of this subsection unless it is of the opinion that the question is relevant to his 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 put.
This provision enables an accused to defend himself or herself by attacking the credit of Crown witnesses or witnesses called by a co-accused in relation to the charge before the court without thereby setting aside the accused’s shield of protection but will expose the accused to cross-examination as to his or her own bad character if the attack goes to any matter referred to in s413A(4)(a) and the court, being of the opinion referred to in s413A(4)(b), permits the cross-examination.25 In this respect the law of New South Wales gives to an accused considerably greater latitude to challenge the credibility of witnesses called by the Crown or a co-accused than other jurisdictions. Indeed one of the major arguments in those jurisdictions (and in New South Wales before the enactment of s413A) for retention of the right to make an unsworn statement was to enable the accused who would, in giving sworn evidence, be exposed to cross-examination as to his or her own bad record by reason of having made such an attack to make it without being exposed to cross-examination The accused person’s shield from cross-examination as to bad character on the issue of credit will also be put aside where the accused person has given sworn evidence against any person jointly charged in the same proceedings (s413A(5)).
2.23 As we have indicated in the previous paragraph an accused person who gives sworn evidence will by virtue of s,413A(4) and s413A(5), be exposed to cross-examination as to his or her own bad character in certain circumstances. This creates an anomaly quite unintended by those who drafted the 1974 amendments to the Crimes Act 1900. Those amendments included a provision for the abolition of the right to make an unsworn statement but this aspect of the Bill was rejected by the Legislative Council,26 and ss413A, 413 B and 413C became law without involving the abolition of the right to make an unsworn statement.27 Thus it comes about that an accused who gives evidence may, by virtue of s413A(4), be liable to have his or her bad character revealed in circumstances where an accused who makes an unsworn statement is not. We deal with this question of character at para 4.40-4.43.
4. Application of the Rules of Evidence
2.24 Sworn evidence is still subject to the complex rules of evidence. It is adduced by question and answer thereby enabling objections to be taken and ruled upon. The rules regarding relevance and hearsay impose the major restrictions on the admissibility of material sought to be adducted.
2.25 We discussed the evidential Status of the unsworn statement in some detail in the 1980 Discussion Paper. It is clear that all unsworn statement can be used to prove facts in issue and may have probative even if it is inconsistent with other evidence.28 As we have noted before (para 2.20), if the accused person puts his or her character in issue in an unsworn statement, bad character can be proved.29
2.26 The accused probably has no legal right to include irrelevant or hearsay material in the statement, although, by, way of indulgence and because of difficulty in controlling material given direct statement without prior questioning considerable latitude may be given.30 In New South Wales, but not Victoria, an accused may identify an object or document in the unsworn statement which, if relevant, may be treated as part of the statement and shown to the jury.31
2.27 The need to curb irrelevant and inadmissible material may be greater where there is a Joint trial. According to local Authority an unsworn statement by one accused cannot be used to assist another in his or her defence,32 but there is authority to the contrary in other ,jurisdictions.33 One accused can however in his or-her own unsworn statement adopt all or part of what is said by a co-accused in the latter’s unsworn statement. It is clear that an unadopted statement by one co-accused cannot be used against another co-accused.34
5. Role of Counsel
2.28 An accused who gives evidence does so if represented by counsel, in answer to a series of questions. This not only allows the Crown to object to any question, but also allows counsel for the accused to exercise some control over the content of the accused’s evidence, if only by avoiding irrelevant or prejudicial material.
2.29 Although the accused who makes an unsworn statement is generally required to deliver it orally and has no right to read it or even refer to notes, some judges in New South Wales will permit this, although the practice is not uniform.35 However it is the practice to allow the accused, at the end of the statement to be reminded by counsel of any omissions.36 Such communication takes place in the presence and usually in the hearing of the judge and jury. In addition it is acceptable for counsel to assist the accused in the preparation of the statement, subject to certain ethical limits laid down by the rules of the New South Wales Bar Association.37
6. Comment
2.30 Section407(2) of the Crimes Act 1900 provides that the failure of an accused person to give sworn evidence, shall not be made the subject of any comment by the judge or by counsel for the Crown. Should the accused make an unsworn statement the judge may call attention to the fact that it is not on oath and is not subject to cross-examination. A “formula” has been approved by the appellate courts prescribing the way in which a jury is told how it should use material contained in an unsworn statement. We discuss it and its deficiencies below (paras 4.50-4.52). It is set out here to draw attention to the significant contrast drawn between sworn evidence and an unsworn statement in the almost universal judicial summing up on the topic:
That statement is something which the law requires you to take into consideration together with the evidence, but it is not in itself evidence in the same sense as the statement of a witness given on oath; it is not subject in any way to test by cross-examination. You should take it as prima facie a possible version of the facts and consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence.
2.31 The judge, however, must not refer, directly or indirectly, to the fact that the accused had the right to give sworn evidence and chose not to. Thus, while a judge may distinguish the evidence on oath from the evidence not on oath and not subject to cross-examination he or she may not contrast the course taken by the accused with an alternative available to, but not taken by, the accused. This means that it is a misdirection simply to outline the options available to the accused under the Crimes Act 1900. This is so even if it is done in answer to a specific question from the jury.38
2.32 This prohibition of a certain type of comment presupposes that none of the members of the jury will know that the accused has the right to give sworn evidence. Further, it is assumed that a reference to the difference between sworn and unsworn evidence in the “formula” direction will not alert the jury to the possibility that the accused has that right.39 The Australian Law Reform Commission has called such an assumption “unrealistic”.40 We agree.
2.33 An accused person, or his or her counsel is by s407(2) of the Crimes Act 1900 expressly entitled to comment on the failure of a co-accused to give sworn evidence. This right can have a very telling effect upon the case of an accused person who makes an unsworn statement in a Joint trial in which a co-accused has given sworn evidence. The latter or his or her counsel is entitled to contrast the two approaches and to discuss the possible reasons for the co-accused having taken a certain course. Where this occurs the judge has a discretion to make such comment as he or she thinks fit.4l
II. HISTORY IN NEW SOUTH WALES
A. Common Law Right
2.34 During the nineteenth century the practice arose of permitting the accused to make an unsworn statement in answer to the prosecution case. This was a response to the fact that the accused could not at that time give evidence on oath-the accused was not a competent witness. It was also a response to the fact that the accused had no right to be represented by counsel except in the case of misdemeanours. Representation was not permitted for charges of felony until 1840.42
B. Statutory Recognition in New South Wales
2.35 Section 1 of the Evidence in Summary Convictions Act, 1882 granted the accused the right to testify on oath in offences triable summarily before a magistrate. Section 6 of the Criminal Law and Evidence Amendment Act 1891 extended that right to indictable offences. That right is now enshrined in s407 of the Crimes Act 1900.
2.36 The common law right to make an unsworn statement, which has been described above at para 2.34, was given statutory recognition in s470 of the Criminal Law Amendment Act, 1883. This was later consolidated in s405(l) of the Crimes Act 1900.
C. The Amsberg Committee
2.37 In 1971 a committee under the chairmanship of His Honour Judge Amsberg QC was appointed by the then Attoney General to review various aspects of New South Wales criminal law and procedure. The committee reported in 1973 but was unable to make a recommendation as to the abolition or retention of the right to make an unsworn statement. The committee was “hopelessly divided”43 on the issue. However the committee’s formulation of the terms of’ debate regarding the abolition or retention of the unsworn statement has been influential in subsequent discussions of the matter.
D. The Crimes and Other Acts (Amendment) Act, 1974
2.38 The Crimes and Other Acts (Amendment Bill, 1974 was based on the recommendations of the Amsberg Committee but also included a clause abolishing the right to make and unsworn statement. That clause passed through the Legislation Assembly but was rejected by the Legislative Council. The Bill was enacted in 1974 without that particular clause and significantly without any alteration to any other sections drafted on the understanding that the right to make an unsworn statement would be abolished. This created the anomaly in s431A referred to in para 2.23 above.
E. Sections 409B and 409C of the Crimes Act, 1900
2.39 ln l977, the Criminal Law Review Division of the Department of the Attorney General and Justice reported on the law and procedure relating to the offence of rape. The Division argued that any modification or abolition of the unsworn statement should not be confined to rape trials. This was notwithstanding the finding that the abuse of the unsworn statement was central to much of the dissatisfaction with existing law and procedure in rape trials. The Division recommended that the statement be retained but that the judge be permitted to explain to the jury the nature of the options open to the accused and to instruct the jury that no adverse inference should be drawn from the accused s failure to give sworn evidence.44
2.40 In accordance with recommendations in this last mentioned report the Crimes Act, 1900 was amended in 1981 by the introduction of section 409B which severely limits the admissibility of sworn evidence relating to the sexual experience and reputation of the complainant Section 409C extends the same restrictions to material contained in an unsworn statement.
FOOTNOTES
1. Strictly speaking, s13 of the Oaths Act, 1900 speaks of witnesses making a “declaration” but it is common parlance to speak of “affirmation” as the alternative to “oath”. In the Report “sworn evidence” will be used to refer to evidence given on oath or affirmation.
2. Crimes Act, 1900 s405(2). It seems that this right is not available if the accused intends only to make an unsworn statement see the distinction between “evidence” and “unsworn statement” in s405(3).
3. Crimes Act, 1900 s407(2).
4. Fraser v The Queen [1984] 3 NSWLR 212 at 226.
5. It was amended by s5 of the Crimes (Amendment) Act 1983 by reversing the order of addresses.
In R v Shortus (1917) 17 SR(NSW) 66 a new trial was granted where, owing to a bona fide mistake in the conductor the trial by the accused’s solicitor, a witness was called for the defence before the accused applied to be allowed to make a statement under s405. The trial judge had declined to allow the accused there after to make an unsworn statement.
7. R v Chin (1985) 59 ALJR 495.
8. Crimes Act, 1900-413A, Maxwell v Director of Public Prosecutions [1935] A309. See further paras 2.202.23 below.
9. See eg Lister v R (1983) 58 ALJR 97; R v Chin, note 7 above.
10. R v Lister [1981] 1 NSWLR 110.
11. Brown v R (1913) 17 CLR 570.
12. Watson and Purnell Criminal Law in New South Wales, Vol 1A para 1093. The right is severely limited: see R v Chin, note 7 above.
13. Crimes Act 1900 s405(3).
14. Ex parte Holland (1912) 12 SR(NSW) 337; Fraser v The Queen note 4 above at 225-226.
15. Fraser v The Queen, note 4 above, at 224-229. Cf Lavender v Petherick [1960] SASR 108.
16. Where the accused makes an affirmation in lieu of an oath a false statement can still constitute perjury. Oaths Act, 1900 s13(1), Crimes Act, 1900 s342.
17. 1 Hawkin’s Pleas of the Crown 69, cited in Watson and Purnell note 12 above para 96 1.
18. Crimes Act, 1900 s327. Perjury committed with intent to procure conviction or acquittal in certain very serious offences may attract a penalty of up to 14 years penal servitude: Crimes Act. 1900 s328.
19. Crimes Act 1900 s330.
20. R v Dean (1896) 17 NSWLR(L) 35; DPP v Humphreys [1977] AC 1.
21. Naturally, opinions vary, as to the continued efficiency of the oath as a curb on lying: see New South Wales Law Reform Commission Discussion Paper Oaths and Affirmations (1980) chapter 1 and the Australian Law Reform Commission Interim Report on Evidence (1985) chapter 28.
22. See note 11 above.
23. New South Wales Law Reform Commission, Discussion paper Unsworn Statements of Accused Persons (1980) para 2 3.
24. R v Stalder [1981] 2 NSWLR 9.
25. In our Working Paper on Evidence of Disposition (1978) paras 5.6-5.7, expressed the view that s413A(4) ought to be amended to allow the accused to attack the prosecution with impunity. The subsection has not been amended and we shall proceed oil the basis that it will remain.
26. New South Wiles-Hansard (Council) 26 March 1974, p1828, 27 March 1974, pp 1983-2027.
27. New South Wales Law Reform Commission note 23 above, para 30.
28. In, paras 16-22. See also Sorgenfrie v The Queen (1981) 51 FLR 147; R v Cormack (1979) 1A Crim at 471 at 479; R v Mandica (1980) 24 SASR 394. The dicta in R v Dugan [1984] 2 NSWLR 554 at 559,561 seem difficult to reconcile with these authorities. This question is also considered in some detail by the Australian Law Reform Commission note 21 above vol 2 pp 111-112 and in Cross on Evidence 2nd Aust ed para 8.41.
29. R v Stalder [1981] 2 NSWLR 9.
30. New South Wales Law Reform Commission note 23 above paras 18-19, Australian Law Reform Commission, note 21 above vol 2, p112-113.
31. Australian Law Reform Commission note 2 1 above, vol 2, p113. This is discussed in further detail in para 4.33 below.
32. R v Kelly (1946) 46 SR(NSW) 344. The same rule applies in relation to an out of court statement by a co-accused.
33. R v Callaghan (1971) 64 Cr App R 11; R v Harbach (1973) 6 SASR 427.
34. R v Penberthy (NSW Court of Criminal Appeal 26 October 1978. See also New South Wales Law Reform Commission note 21 above, pl6 54 and R v Mandica (1980) 24 SASR 394.
35. New South Wales Law Reform Commission. note 23 above, paras 11-12.
36. Id, para 1.
37. Rule 55 of the Rules of the New South Wales Bar Association See also para 5.7 below.
38. R v Greciun-King [1981] 2 NSWLR 469.
39. Bridge v The Queen (1964) 118 CLR 600 at 616, per Windeyer J.
40. Australian law Reform Commission note 21 above. at p143 para 279.
41. Crimes Act 1900 s407(2), proviso.
42. Defence on Trials for Felony Act-1840 (4 Vic No 27).
43. New South Wales Law Reform Commission note 23 above, para 29.
44. Criminal Law Review Division of the Department of Attorney General and Justice, Report into Rape and Other Sexual Offences (1977) pp33-35.
