3.1 Before proceeding to our recommendations (Chapter 4) we note some additional background and comparative material.
I. INCIDENCE AND IMPACT OF THE UNSWORN STATEMENT
A. Incidence of the Unsworn Statement
3.2 The limited information available indicates that the unsworn statement is used by a significant number of accused. The Australian Law Reform Commissions researches led it to an estimate that the statement is used in 50 to 90 per cent of trials in the New South Wales District Court.1 Our own impression is that the true situation would be closer to the lower of these two figures. We think it proper, however, to observe that the number of accused who give sworn evidence is rising. This is probably due to a belief that juries are aware of the fact that the accused has this option and that they may be sceptical of those who do not exercise it.
3.3 Information from elsewhere is of limited value because of differences in the rules prohibiting judicial comment and other local variations in practice. However some statistics kept in the Melbourne Supreme and County Courts revealed that the proportion of those making unsworn statements was between 35 and 40 per cent of all persons standing trial between 1977 and 1980.2 In South Australia, the Supreme Court heard an average of 31 percent of accused persons in defended trials make an unsworn statement in 1979 and 1980.3
B. Impact of the Unsworn Statement
3.4 Critics of the unsworn statement assert that it can be abused to assist the guilty to escape conviction. This argument is inherently incapable of proof or disproof but such studies as have been conducted indicate that the assertion is untenable. Some indications suggest to the contrary.
3.5 The Minogue Report concluded that there was no noticeable change in the conviction rate due to the increased use of unsworn statements. In fact since the law in Victoria was amended to give the right of last address to an accused whether or not he or she made an unsworn statement there had been a marginal increase in the conviction rate for defendants standing trial. Nor had the use of statements led to an increase in the number of defended trials.4
3.6 After examining the relevant statistics for l980, the Sumner Committee in South Australia concluded that accused persons making unsworn statements were significantly more likely to be found guilty than those giving sworn evidence.5
3.7 In New South Wales the total number of appearances dealt with by the Supreme Court and District Court in l982 was 4,824. Of these, 4051 or 84% culminated in a plea of guilty. Accused persons were acquitted in 7.4% of appearances. The offences most commonly resulting in acquittal were assault/homicide (16.7% of people charged were acquitted), other offences against the person (9.4%), driving (21.5%) and sexual offences (10.3%).6 When it is also borne in mind that over 90% of all criminal cases (excluding juvenile, minor traffic and parking offences) were dealt with summarily, usually following a plea of guilty, in what are now called Local Courts,7 the upper limit of the percentage of all accused persons who could possibly obtain an unjustified acquittal by making an unsworn statement is very small.
3.8 Other analyses have involved an estimation of the greatest number of persons who could be said to have escaped conviction because of the unsworn statement. In Victoria the upper limit of persons who could be said to have gained an “unjust acquittal” was found to be 3 to 4 per cent of all persons appearing in court.8 In South Australia the percentage of accused persons who were acquitted after making an unsworn statement in the Supreme Court was 9 per cent of those standing trial and pleading not guilty in 1979 and 5 per cent in 1980. In the Local and District Courts it was 4 per cent in both 1979 and 1980.9 These figures are naturally dependent upon the extent of the practice of making an unsworn statement in those jurisdictions.
3.9 Yet another study has examined the conviction rates in two jurisdictions where the unsworn statement has been abolished-Queensland and Western Australia. Whilst the data was highly subjective in neither case could it be said that abolition of the unsworn statement had had an appreciable effect on the conviction rate.10
II. THE POSITION ELSEWHERE
3.10 In our 1980 Discussion Paper (paras 82-83) we referred to developments in other jurisdictions. The current position is that the right to make an unsworn statement in a criminal trial was abolished in Queensland in 1975 in Western Australia in 1976 and in Northern Territory in 1984. It was abolished in New Zealand in 1966 and in England in 1983. It disappeared in the United States and Canada after the right to testify was given in the nineteenth century. The right to make an unsworn statement now exists in the Australian Capital Territory, Victoria, Tasmania, South Australia and some overseas jurisdictions including South Africa and Eire. The right also exists in courts martial under the recently promulgated Defence Force Discipline Rules.11
3.11 It is particularly interesting to note that in South Australia the issue was extensively reviewed by a Select Committee of the Legislative Council in 1981. Pursuant to that Committee’s recommendation the right to make an unsworn statement was confirmed by statute in 1983 but excluded from summary proceedings and otherwise circumscribed.12 However on 24 July 1985 the South Australia Attorney General Mr Sumner announced that the right to make an unsworn statement would be abolished, although the trial judge would be given a discretion, to be exercised in the absence of the jury, to permit the statement if to refuse it would result in injustice by reason of diminished intellectual capacity of the accused, or because of the inability of the accused to express himself or herself. This change was announced as part of a package of reforms relating to sexual assault.13
3.12 The Australian Law Reform Commission has recently made recommendations for reform in this area as part of its Interim Report on Evidence:
- The right to make an unsworn statement in all criminal trials, including summary proceedings, should be retained
- The unsworn statement should be treated as evidence for the purpose of the application of the rules of evidence.
- The statement may not be used for or against a co-accused.
- The rules regarding perjury and false testimony should also be applicable
- The making of an unsworn statement should be an alternative to the giving of sworn evidence except in special circumstances where the leave of the court to use both forms of evidence is obtained.
- The accused may read his or her statement or refer to notes and in certain circumstances counsel may be permitted to read the statement to the court.
- Counsel may assist in the preparation of the statement and may, with the court’s leave, prompt or remind the accused of any omissions by questioning the accused as though in examination-in-chief.
- The accused should be advised of the options available to him or her in the presence of the jury. The judge and any co-accused may comment on the accuse(f s failure to give sworn evidence. That comment shall not suggest that an inference of guilt is to be drawn from the accused s decision to make an unsworn statement nor shall it suggest that the statement is, by reason only that it is unsworn or not subject to cross-examination necessarily less persuasive than sworn evidence.
- The prosecution should have no right of comment.14
FOOTNOTES
1. Australian Law Reform Commission, interim Report on Evidence (1985) vol 1 at p317 para 584.
2. Law Reform Commissioner, Victoria, Report on Unsworn Statements in Criminal Trials(1981) (hereafter referred to as the “Minogue Report”) para 5.12.
3. Select Committee of the Legislative Council, Final Report on Unsworn Statements and Related Matters (1981) (hereafter referred to as the “Sumner Committee”) para 7(d).
4. Minogue Report note 2 above, paras 5.14-5.15.
5. Sumner Committee, note 3 above at para 7(e).
6. Bureau of Crime Statistics and Research, Court Statistics 1982 p55.
7. Id, pp7, 24, 31 and 55.
8. Minogue Report note 2 above, para 5.16.
9. Sumner Committee, note 3 above, paras 7(i) and (j).
10. Australian Law Reform Commission, note 1 above, para 590.
11. Defence Force Discipline Rules (Statutory Rules 1985 (Commonwealth) No 128) rule 46.
12. Evidence Act Amendment Act 1983 s3 (inserting a new s18a in the Evidence Act, 1929).
13. Report in The Advertiser 25 July 1985.
14. Australian Law Reform Commission, note 1 above, vol 1 pp326-332 paras 591-592, vol 2 pp 25-26.
