I. INTRODUCTION

4.1 It would be wrong to address the issues raised in this Report simply by asking whether unsworn statements by accused persons should be retained or abolished. As we have found in the submissions received, some people are prepared to accept one position provided that other factors are present or absent. The present law and practice relating to unsworn statements in criminal proceedings embodies a series of rules which some regard as counterweights each offsetting the effect of the others. We should also note that some approach the issue in rather different terms. For example, the question could be stated as whether the accused person should have a right to state his or her case without being subject to cross-examination. Put this way, the question does not assume that the statement must be unsworn.

4.2 For this reason we have concentrated our attention upon whether the present rules together constitute a “fair” balance, fairness in this sense being measured against the ten principles referred to in chapter 1. We consider the present situation to be highly unsatisfactory for a number of reasons, most of which have already been mentioned. It is significant that most of the many persons who made submissions advocating retention at the same time suggested that some changes should be made. There is uncertainty and confusion about several aspects of the law and practice surrounding the use of the unsworn statement; the legally acceptable form of judicial comment is unhelpful, dangerously ambiguous and certain phrases are capable of vastly different meaning depending upon the juror’s perception of them; the jury is left to speculate as to whether an accused person had the right to give sworn evidence and submit to cross-examination the judge is prohibited from dispelling certain misconceptions which the jury may have; and there is the anomaly created by s413A which puts an accused person who gives sworn evidence in a worse situation qua character evidence than one who makes an unsworn statement.

4.3 Whilst we shall necessarily address these matters in turn it should be emphasised that, for reasons similar to those mentioned in para 4.1, the proposals which we advance are also interdependent. As will appear, we are unanimous in concluding that an accused person should retain the right to present his or her case in a manner that is reasonably free from formal restraint and without exposure to cross-examination. We do so, however, on the basis that our other recommendations will ensure the important values embodied in our ten principles are given proper effect.

4.4 It is however the argument for abolition of the right that must first be addressed. This argument was strongly pressed by a number of practitioners experienced in criminal law including several senior judges. It has been accepted in a number of other jurisdictions (paras 3.10-3.12).

II. THE ABOLITIONIST ARGUMENT. CROSS-EXAMINATION

4.5 The detailed arguments for and against retention of the right to make an unsworn statement have been canyassed in our Discussion Paper. If they are also addressed in reports of other bodies which have examined the matter in recent years, most notably the reports of the Australian Law Reform Commission, the Victorian Law Reform Commissioner and the South Australian Select Committee of the Legislative Council referred to in Appendix A.

4.6 A number of features of the right and its abuse attract the attention of those who would abolish it the accused’s right to make untrue claims attacking Crown witnesses or asserting grounds of defence without exposure to cross-examination the fact that the statement is not on oath or affirmation and the accusers facility to introduce inflammatory or irrelevant material without clear guidelines for judicial control. The persons who have submitted that the right should be abolished have however made it plain that they consider immunity from cross-examination is sufficient in itself to justify abolition. Accordingly, in this part of the chapter we consider whether the accused should continue to have the option of putting material before the court by way of a statement without thereby exposing the maker to cross-examination.

4.7 It is widely believed that cross-examination or the threat of cross-examination are key instruments in the pursuit of truthfulness in evidence. Whilst there are studies which question the accuracy of this assumption¹ it is one which we accept. If the matter were one of equality of treatment between prosecution witnesses and the accused and if the sole object was to discover, by any means, whether or not the crime was committed by the accused the case for retention would be insupportable. However, other factors must be put in the balance. A criminal trial is not a royal commission and the accusatorial as distinct from inquisitorial mode is part and parcel of our system of criminal process.²

4.8 We are unanimous in our view that an accused person facing trial by jury for a serious criminal offence should retain the option of putting material before the court by means of a statement which is not subject to cross-examination. Accepting the weight of the arguments summarised in the preceding paragraphs we consider that other factors outweigh them.

4.9 An accused person who has been put on trial and who is called upon to present his or her case following the conclusion of the Crown case is under considerable stress. Unlike other witnesses in the case the potential consequences of the trial for the accused person are serious. Whilst there are many who can do themselves justice in the witness box giving sworn evidence to some that would be an ordeal that could result in injustice. The accused person’s awareness of the risk of conviction could lead the sceptical to detect the demeanour of dishonesty in what may be merely incapacity As Lord Reid has reminded us, “you must bear in mind that an innocent accused person is often stupid, he is often slow, he is often overawed and generally nervouse”.³ We also see merit in the proposition put forward in submissions to us that the ordeal of cross-examination may be no less of an ordeal for the sophisticated and well-educated accused person.⁴

4.10 We are concerned that there may be some people who, being innocent of the crime with which they have been charged but under practical compulsion not to choose the option of remaining mute would convict themselves by the way they would perform under cross-examination. We reiterate our principles 3 (para 1. 1 5) and 10 (para 1.22) about the need to minimise the risk of convicting the innocent and of placing the onus upon those who would recommend change adverse to the existing rights of accused persons. For these reasons and others which we will explain in the following paragraphs, we support the retention of the accused’s right to make a statement without exposure to cross-examination. As we mentioned in para 4.1, this conclusion has been arrived at on the basis that our other recommendations, particularly those related to comment, are implemented.

4.11 The statement performs two useful functions that would be impaired if the right to make it were abolished:

• It can operate to help the jury focus attention on what are the real issues in the trial. In a Discussion Paper on The Jury in a Criminal Trial which is shortly to be published by the Commission we put forward the suggestion that the accused or counsel for the accused ought to be able to address the jury immediately after the Crown opening in order that matters not really at issue can be separated from those central to the case from the point of view of the accused person. There would be no compulsion to do so but we would envisage that many accused would choose to do so in order that the jury can know in advance what aspects of the prosecution case and what lines of cross-examination by the defence call for particular attention The unsworn statement tends (albeit poorly and belatedly) to perform a related function in that it puts before the jury the heart of the defence case. it enables counsel for the Crown (who must address first) to concentrate attack on the real issues. This is not only of value to the Crown but will also assist the jury to understand the real issues in the case.
• More importantly the statement is one, and sometimes the only, means whereby the accused can actually participate in his or her own trial basically on his or her own terms. As one person who made submissions to us put it: “The unsworn statement gives every accused his ‘day in court’, and allows him to speak his piece, however likely it is to be accepted by the jury.^6' Even the process of evidence-in-chief can be daunting if it is interrupted by objections taken by opposing counsel. The usual techniques of cross-examination further operate to restrict the accused in the way he or she would wish to present evidence even though they may thereby get at the truth more effectively. Whilst we are not convinced that retention of this right to participate in the trial in this way is essential to maintain respect for the system of criminal procedure or prevent attacks upon the safety of the persons involved in it.⁷ We nevertheless consider it to be an important value in itself-a recognition of the personal worth of the individual matched against the full majesty of the state.

4.12 There is a further important consideration which we consider lends support to the case in favour of retaining the right to make an unsworn statement not subject to cross-examination.⁸ If the right is abolished, an accused person will have the options of giving evidence or remaining silent. In many cases the latter option is likely to be unrealistic. This could mean that the accused person will be virtually obliged to give evidence and be subjected to cross-examination. The likely consequence is that the accused person will be required to produce something of substance in reply to the Crown case. Putting this another way, the accused person will be required to “pass” the test of cross-examination. In our view, such a consequence may have a tendency to place a probative burden of a kind upon the accused person. The emphasis in the trial maybe shifted to become “what does the accused have to say about this allegations?”. This not only means that the accused is compelled to respond, but worse, there is at least the implication that this response should be positive, impressive and persuasive. Whilst we acknowledge that in criminal trials where the prosecution case is a strong one, the accused person may have little realistic option but to give sworn evidence to rebut the strength of the Crown case, we do not consider that this should be effectively compelled by the law. it is a fundamental principle of our criminal law that the prosecution should at all times bear the onus of proving the guilt of the accused (para 1.17). Any procedural change which has the effect of diminishing the strict application of this principle should be resisted. We consider that the abolition of the right to make an unsworn statement could in practice appear to have this consequence.

4.13 We are not convinced that those accused persons who make, in an unsworn statement, unfounded or scurrilous attacks on prosecution witnesses or false claims of innocence do in fact thereby obtain unjustified acquittals. Such devices will frequently be effectively dealt with by skilled and experienced Crown prosecutors in their final address. Experience, the submissions we have received and such information as is available (chapters) suggests that no greater rate of convictions (as if that were desirable perse) would be achieved following the abolition of the unsworn statement. This implies that juries may not be deceived by those accused who use the unsworn statement in the manner described.

4.14 We recognise that there may be sophisticated criminals who resort to this right and who, if the right is retained, would obtain an unjustified advantage because of our concern for those accused who have legitimate need of it. The same could be said about many rights conferred by the law in civil and criminal matters. Moreover, we are not convinced that accused persons who abuse the right to make an unsworn statement necessarily benefit from that abuse and in any event we feel that, subject to our other recommendations, the balance of advantage should be maintained in favour of the accused in this area. We do not favour a scheme whereby the “right” is available only to some accused at the trial judge’s discretion (as has been recently proposed in South Australia: see para 3.11). It would be difficult to ensure that any such judicial discretion would be applied consistently. The invocation of the right should be left to individual accused persons and their legal advisers who are in a better position to assess the desirability of doing so than a trial judge who, having no information about the particular accused person and the case intended to be presented, would be tempted to stereotype particular categories and races of people as deserving of the “right” to make an unsworn statement. We are reluctant to encourage the development of different “classes” of people in the criminal courts.

4.15 Before leaving this particular topic we address one argument advanced by the proponents of abolition. This is the argument that the right is an historical anachronism which ought for that reason to be terminated.⁹ In our view, unless the desire to have procedural law tidy and logical is elevated to a fundamental principle this argument has little weight in deciding what is the correct position to adopt today. What to one person is an anachronism may be, to another, a “very age-old and respectable institution”.¹⁰ We agree with the view, expressed by one person who made a submission that:

About a century after the accused came to be entitled to give evidence the feeling seems to be developing that it is anomalous that the accused should have any other way of putting facts before the Court. What started as a law reform which conceded an additional right to the accused is apparently now seen as a reason for taking away his existing rights.¹¹

4.16 For these reasons we recommend that subject to our other proposals, an accused person on trial before a judge and jury should retain the right to make a statement which does not expose the accused person to cross-examination.

4.17 In para 2.19 we mentioned the apparent anomaly that the statutory embodiment of the right does not on its face preclude cross-examination by a co- accused. Whether or not this reflects the common law position and whether or not such position survives the statutory enactment of the right we think it desirable that the Act be clarified so as to preclude crossexamination by any party or questioning by the judge where an accused makes an unswom statement.

III. DISCOURAGEMENT OF UNTRUTHFUL STATEMENTS

4.18 As we noted in para 2.17, an unswom statement does not attract any sanction for perjury or false swearing. The only real deterrent is the risk that an obvious lie will be unfavourably received by the jury. In its Interim Report on Evidence, the Australian Law Reform Commission has recommended that the accused should be liable for prosecution for perjury if false evidence is given in the statement.¹²

4.19 There is no inherent reason why an unsworn statement could not attract a sanction for false swearing. This is the position with false evidence of a child which is not on oath.¹³ Alternatively, it would be possible to provide that the accused person should be required or permitted to take an oath or make an affirmation before making a statement and to provide further that the maker of such a statement should not be exposed to cross-examination.

4.20 The real issue, however, is whether there should be a sanction for making a false statement. The argument in favour of creating a sanction is that it might contribute to the truthfulness of the material advanced in the statement by deterring accused persons from telling lies. It is not right that the accused should be given a “free kick” to tell lies with legal impunity as partof a collection of rights designed to ensure any balance of fairness in his or her favour. By rendering the making of a false statement a crime, the criminal law would be performing its declaratory function. This is seen to serve a legitimate purpose irrespective of the approach taken by the responsible authorities to the prosecution of accused persons alleged to have made a false statement.

4.21 The contrary viewpoint looks at the practical realities of the situation. Whilst the principles of double jeopardy do not preclude the prosecution for perjury of an accused person who gives false evidence,¹⁴ the fact is that such prosecutions are rarely if ever brought in New South Wales. If the law were altered so as to render the making of a false statement a criminal offence it would be likely that defence counsel would feel obliged to draw attention to this fact if only in an endeavour to minimise what is already seen as the invidious distinction between the value of sworn evidence and that of the unsworn statement. Counsel would not be doing his or her client justice without referring to features of the unsworn statement which may increase its stature in the eyes of the jury. Bearing in mind the practical reality that there is no risk of prosecution such an approach might be seen as technically legitimate but as actually allowing the jury to be misled. A judge might then feel inclined to make some comment to the jury on the issue but would probably be precluded from doing so. A final practical consideration advanced by those who hold the view that there should be no change in the present law is that, in all probability, few accused personswho were determined to lie in criminal proceedings would be deterred by the presence of a sanction.

4.22 The majority of us (Mr Byrne, Mr James, Mr Mason, Miss O’Connor and Mr Justice Roden) consider the latter arguments compelling. We think that little if anygood would come from making it an offence to make an untrue statement and that such a change in the law could lead to injustice. We therefore recommend that there should continue to be no legal sanction for giving false evidence in the course of an unswom statement.

4.23 The minority (Judge Mathews and Mr Sackville) prefer, on balance, the arguments summarised in para 4.20. It is considered that unless there were no point at all in having crimes such as perjury and false swearing there is no reason why the accused who seeks to make a positive contribution to the material available to be considered on the question of guilt ought not to be exposed to a prosecutiorrif he or she is found to be lying. Mr Sackville would also wish to question the appropriateness of the current policy not to prosecute persons who give false sworn evidence at their own trial.

A. The statement as evidence

4.24 As we pointed out in paras 2.25 and 2.27, what is advanced by way of unsworn statement has evidentiary value and is part of the material before the jury in relation to the accused who makes the statement. It can be used to prove facts in issue, even if inconsistent with other sworn evidence; and can be contradicted in certain circumstances by evidence called in reply by the prosecution.

4.25 We consider that this result which is clearly established by the modern authorities, ¹⁵ should be reflected in the legislation. We appreciate and intend that this and other changes which we propose should mean that the “formula” judicial direction which is set out in para 2.30 will no longer reflect the true legal position. We shall consider these matters in more detail below.

B. Co-accused

4.26 The current law in New South Wales is that the material contained in a statement which is not subject to cross-examination is not evidence in the case of an accused person tried jointly with the maker of a statement. That is the rule whether the evidence is favourable or unf avourable to the case of the co- accused¹⁶ We consider that this should remain the law, because the co- accused does not have the right to cross-examine to challenge unfavourable material and because of the difficulty of sorting out what is “favourable” or “unfavourable” material. (However we should note that this raises a wider problem which affects joint trials. Whilst the law is clear that an unsworn statement or an out of court admission made by one accused is not evidence for or against a co-accused, it may be unrealistic to assume that juries can apply this law accurately even when they are property instructed. This wider problem concerns the conduct of joint trials rather than the unsworn statement in isolation.)

4.27 Such a rule would not prevent an accused person from adopting a statement made in court by a co-accused. In that event the material adopted becomes evidence in the case of the person who adopts it, and may be used either for or against that person.

C. Application of Rules of Evidence

4.28 As we pointed out in para2.26 an accused person probably has no legal right to include irrelevant or hearsay material in the statement although by way of indulgence and because of the difficulty in controlling material given by direct statement without prior questioning, considerable latitude may be given, We consider that this is an appropriate position and would not seek to change it. From our experience it would be rare for important material relevant to the defence case to be rejected on formal grounds. One person who made submissions to the Commission¹⁷ suggested that one of the reasons why the unsworn statement should be retained is that it enables an accused person to inform the jury of evidence that could have been given by a now deceased or unavailable or hostile witness. We favour retention for other reasons. We do not wish to encourage the presentation of material which would not be admissible as sworn evidence. If the general rules of evidence, particularly the hearsay rule, cause injustice they do so for all litigants regardless of whether they would wish to give evidence or make an unsworn statement: a Report primarily concerned with the use of unsworn statements is not the proper place to address such matters of general significance.

4.29 This still leaves open the method used to control the content of the statement. The Australian Law Reform Commission has envisaged that the prosecution should be entitled to object to inadmissible material in an unsworn statement and that the judge should be required to rule on such an objection.¹⁸ It is not entirely clear how it is intended that this would be done because the draft Evidence Act proposed by that Commission¹⁹ seems to envisage that the primary manner of giving “unsworn evidence” is by the traditional method of making a statement. The draft act does how ever provide that after unsworn evidence has been given a legal practitioner appearing for an accused person may, with the leave of the court question the accused person as though in examination-in-chief.²⁰ Indeed it would be possible for the totality of the unsworn evidence to be given in the usual manner of giving evidence-in-chief. This would enable the admissibility of proposed evidence to be challenged in the traditional manner of objection to the question put by counsel to the witness. We do not favour such a departure from the existing practice as to the manner of making an unsworn statement. As we observed in para 4.11²¹ a principal reason for retaining the right to make an unsworn statement is to enable the accused person to contribute to the proceedings on his or her own terms. The normal process of eliciting evidence-in-chief necessarily involves interruption and control.

4.30 Alternatively the accused could be required to provide the court in advance with a copy of the text of the proposed statement so that irrelevant and inadmissible material could be deleted. it would probably follow that he or she would have to be permitted to read from the edited statement. This would be a departure from the conventional practice in this State which requires the accused to make the statement without the benefit of notes. We do not consider that the trial judge should be required as a matter of course to canyass the intended content of an unsworn statement which an accused person intends to make in court. It would have a tendency to involve the judge too closely in the presentation of the defence case and may appear in some cases as if the judge is giving legal advice to the accused person In stating this conclusion we do not wish to be understood to be saying that such a course will always be inappropriate. We think it desirable that counsel for the accused should invite the trial judge to determine in advance the admissibility of matters which are in doubt. It is the practice in this State for counsel to assist in the preparation of an unsworn statement and for occasional “rulings” to be sought in the absence of the jury concerning doubtful material intended to be included in it. This is a matter that can be left for the discretion of the trial judge to exercise as he or she thinks fit in the circumstances of an individual case.

4.31 Judges will make “judicious” interruptions if an unsworn statement threatens to stray too wide of the mark. Any risk of such interruptions being excessive is curtailed by the exercise of the judge’s overall duty of fairness and the more practical restraint of unwillingness to appear unfair in the eyes of the jury. Where inadmissible material emerges in the course of an unsworn statement judges can direct the jury to disregard that material just as they do in relation to inadmissible material that emerges in sworn evidence.

4.32 In our view there exist adequate powers to control and minimise the effects of the intrusion of inadmissible material into an unsworn statement. The fact that they are not used extensively is due to an indulgent latitude that is frequently given to an accused person in these circumstances. In one area the judge is required to direct the jury to disregard inadmissible material: that is where a person charged with a sexual offence makes an unsworn statement containing prohibited material relating to the previous sexual experience of the complainant.²² We have considered whether the principle embodied in this last mentioned provision ought to be made one of general application, but do not feel that it is appropriate that judges be obliged to instruct the jury to disregard any inadmissible material that intrudes into an unsworn statement. There is often a risk that an instruction of this nature only emphasises the material and we think it best to leave the matter where it is at the moment namely as a discretionary power capable of being exercised whenever the trial judge thinks necessary to do so.

D. Proving and tendering exhibits

4.33 Under the present law where the statement is unsworn, the question arises whether the accused can put into evidence any document or object duty “proved” by the statement. If the proposed exhibit is hearsay or irrelevant it can and should be excluded and the law so provides, although an accused maybe permitted to put the matter before the jury by way of an indulgence.²³ But what if it represents something which if “proved” by sworn evidence could thereupon be tendered In R v See Lun²⁴ the New South Wales Court of Criminal Appeal by majority held that such a document or object could go to the jury for inspection not “as evidence” (because it had not been identified by evidence on oath) but as “part of the statement”²⁵ or “as an exhibit to the statement and not as evidence”.²⁶ The Full Court of the Supreme Court of Victoria has more recently come to an opposite view and ruled that such documents should not go to the jury, except as a matter of indulgence.²⁷

4.34 If, as we propose, the status of the unsworn statement as evidence receives statutory recognition then it would seem to follow that documents and objects that are relevant and otherwise admissible and duly proved by such evidence should be admitted as exhibits in the ordinary manner. That conclusion appears to us to be logically consistent and appropriate. It should be remembered that the Crown would expect to be permitted to reopen its case to tender evidence in reply to anything unexpectedly arising in the course of the defence case.²⁸

E. Recommendations about evidentiary status

4.35 We therefore recommend that

(a) the status as evidence of material advanced by way of an unswom statement or exhibits duly authenticated by such a statement should be confirmed by statute;

(b) such material should not be evidence for or against any other accused person unless it is adopted by that other person;

(c) otherwise, the law as to the evidentiary status of an unswom statement should be unchanged.

V. SHOULD THERE BE A RIGHT TO MAKE AN UNSWORN STATEMENT AND ALSO GIVE SWORN EVIDENCE?

4.36 We have noted (para 2.9) that the law in New South Wales permits an accused person to make an unsworn statement and also, later, to give sworn evidence. It is our observation that increasing numbers of accused persons exercise this right to give both kinds of evidence. Various reasons suggest themselves f or the practice although they are not mutually exclusive:

• An accused particularly one who is knowledgeable about court procedures and the limitations of the rules of evidence, may make an unsworn statement in order to put irrelevant or inadmissible material before the jury and then offer sworn evidence. in the sworn evidence the accused swears to the correctness of the material advanced in the unsworn statement.²⁹ By giving sworn evidence the accused is able to avoid what is seen as the unfavourable impact of the judicial “comment” permitted by the “formula” direction concerning an unsworn statement (para 4.51). In giving both kinds of evidence the accused will have demonstrated in a graphic way the difference between the two. The accused s counsel is then able to make much in submissions about the accused having exposed himself or herself voluntarily to the rigours of cross-examination.
• An accused may overlook some vital matter in the unsworn statement, or the later evidence of witnesses called by that person may be so damaging that it is felt necessary to enter the witness box in an attempt to retrieve the position.³⁰
• One of two or more accused who presents his or her case first by way of an unsworn statement may later be confronted by the case of a co-accused who makes sworn or unsworn assertions which are highly damaging to the position of the first accused. Normally a party will not be allowed to reopen once having closed his or her case, but where new and unexpected material emerges when another party later presents his or her case, leave may be given to the first party to reopen.³¹ The first party is precluded from making a second unsworn statement (see para 2.8) and may thus be driven to seeking leave to reopen the case for the purpose of giving sworn evidence.

4.37 In most jurisdictions where there is or has been the right to make an unsworn statement the right has been an alternative to giving sworn evidence. Several of the people who made submissions to us have argued that the availability of a right to give both kinds of evidence in New South Wales is a legislative oversight and that the abuses identified in the first example given in the preceding paragraph are by themselves a sufficiently serious irregularity to justify abolition of the cumulative right. It is argued that the right of the Crown prosecutor to cross-examine on both the material in the unsworn statement and the sworn evidence (para 2.9) is insufficient to overcome the injustice which may be created by an accused person who takes advantage of presenting both kinds of evidence. We believe that there is much weight in these criticisms and that this practice has a tendency to cause confusion to the jury which may have to assess the credibility of different parts of the same witness’ evidence in different ways.It is also clear from an earlier part of this chapter (paras 4.28-4.32) that we do not favour any means whereby an accused person may, except byway of indulgence, introduce material into the trial which would be inadmissible if it were given by sworn evidence. In any event we consider that judges and Crown prosecutors (by refraining from objecting) extend considerable indulgence to accused persons who give sworn evidence to lead material relating to matters such as background or character which may be of marginal relevance in a strict sense. It is not valid to say that it is only by making an unsworn statement that an accused person can put this apparently valuable evidence before the jury.

4.38 The contrary argument is that the law, whilst recognising the right of the accused person to make an unsworn statement should nevertheless encourage the giving of sworn evidence. This enables the jury to have the advantage of assessing the accused’s evidence in the same manner as that given by other witnesses. The accused should also be allowed to present at least part of his or her evidence in an unrestricted way for the reasons given in the second part of para4.11. Any risk of confusion can be met by an appropriate explanation to the jury.

4.39 We have not found this an easy issue-Ultimately, the majority of us consider that the arguments favouring general abolition of the cumulative right preponderate. However because we recognise the need to accommodate the second and third types of situations referred to in para 4.36, we adopt the suggestion put forward by the Australian Law Reform Commission in its Interim Report on Evidence,³² namely that the court should, in exceptional cases such as those mentioned in the last two subparagraphs of para 4.36, have the power to allow an accused who makes an unsworn statement later to give sworn evidence. We therefore recommend that an accused person who makes an unsworn statement may not also give sworn evidence unless the judge gives leave to do so; and that if sworn evidence is given cross-examination may extend to evidence given in the unsworn statement. Mr Sackville takes the view that there are no compelling reasons to alter the current situation in which the accused can make an unsworn statement and then give sworn evidence and be tested by cross-examination.

VI. RAISING THE ISSUE OF THE ACCUSED PERSON’S CHARACTER

4.40 The present law as to when the Crown may lead evidence of the accused persons bad character is summarised in paras 2.20-2.23. We noted (para 2.20) that the Crown may call evidence in reply where an accused person raises the issue of his or her own character in an unsworn statement and that no different position prevails where the accused does this by sworn evidence. We consider that there should be no change in this position.

4.41 We also noted (para 2.2 3) that there is an apparent anomaly in the present law whereby in accused person who gives sworn evidence may, by virtue of ss413A(4) and 413A(5) of the Crimes Act 1900, be liable to have his or her own bad character revealed in circumstances where an accused who makes an unsworn statement is not. There is no justification for allowing the accused person who gives unsworn evidence to have such an advantage when compared with one who gives sworn evidence. The statutory confirmation of the evidentiary status of the unsworn statement which we propose (para 4.35) only underlines the need for consistency on the question of character. One further criticism of the present law is that it may operate to deter some accused from giving sworn evidence, a consequence which we consider. Undesirable if the accused is otherwise prepared to do so.

4.42 It is appropriate that there should be consistency in the rules which determine the circumstances in which evidence of the character of the accused person is admissible in a criminal trial Provided that the conditions laid down in s413A(4) (para 2.22) or s4l3 A(5) are satisfied the same consequences should follow regardless of whether the accused gives sworn evidence or makes an unsworn statement. Where the accused gives sworn evidence, and attacks the prosecution witnesses, the consequence is that in an appropriate case the shield from cross-examination by the Crown as to bad character on the issue of credit is cast aside. Since, however, the main incident of the unsworn statement is that the accused is not liable to cross-examination the appropriate consequence should be that the Crown would be permitted, subject to such conditions as the Court thinks fit to lead evidence as to the accused’s bad character in so far as it goes to credit. We therefore recommend that where the provisions of s4l3A of the Crimes Act, 1900 would apply to an accused person who gives sworn evidence they should be extended to a person who gives evidence only by way of an unsworn statement. However, consistent with the fact that cross-examination of such a person is not to be permitted, the party which would be entitled to cross-examine the accused person should with the leave of the Court be entitled to lead evidence on the relevant issue, subject to such conditions as the Court thinks fit. In some cases it will be appropriate that such evidence be led before the case of the accused person. In others, eg where the accused person first raised an issue in the course of an unsworn statement, evidence on the relevant issue would need to be led afterwards.

4.43. In our Working Paper on Evidence of Disposition (1978) paras 5.6-5.7 we expressed the view that s413A(4) ought to be amended to allow the accused to attack the prosecution with impunity The basic argument is that since the Crown has the onus of proof, it seems unjust that an accused person who may have quite legitimate grounds for attacking the general credibility of a prosecution witness cannot do so without thereby exposing his or her own general bad character with the attendant risks which may not be avoided even where an appropriate direction is given. To attack the credibility of a prosecution witness does not necessarily involve asserting one’s own good character. This Report, however, is not the place to reach a final view on this topic.³³ As we indicated previously³⁴ we shall proceed here on the basis that s413A(4) stands unrepealed. On that basis the anomaly which we have identified and discussed calls for a remedy and the one we have proposed above seems appropriate.

4.44 Under the present law the unsworn statement of an accused person has four main incidents: it is not on oath and therefore not subject to any of the sanctions for perjury or false swearing, it is not subject to cross-examination: it has a probative capacity in the case of the accused who makes it in the sense that the jury should take it into account in their deliberations if they accept its truthfulness or are not satisfied of its untruthfulness, and, though theoretically subject to the rules of evidence, nevertheless can be delivered in a manner that may make it difficult to control so far as compliance with those rules are concerned. As will be clear from other parts of this Report we consider that the first two incidents, particularly the absence of cross-examination, result ill important differences between the position of an accused who makes an unsworn statement and one who gives sworn evidence. These differences are generally perceived by judges, legal representatives and accused persons although naturally opinions vary on the significance and extent of the differences.

4.45 it has been held to be necessary for the trial judge to inform the accused person of the right to make an unsworn statement.³⁵ Our understanding is that in practice this is only done in the case of unrepresented accused and this necessarily takes place in the absence of the jury.

4.46 Accordingly, under the present law the jury will only be informed about any of the incidents of the right or its consequences in a trial in which the right is exercised if:

• the accused raises the matter in an unsworn statement or final address;
• a co-accused raises the matter in final address,
• the prosecution in its final address refers to the fact that the accused’s statement was unsworn and not subject to cross-examination; or
• the judge mentions the matter in the summing up.

4.47 It seldom if ever occurs that an accused or counsel for an accused mentions any of these distinctive incidents. This is due to the fact that it is usually perceived that the jury are likely to be unimpressed by being told that the accused could have given sworn evidence-even if the accused was someone who had legitimate reasons for declining that option. For similar reasons one co-accused who also opted to make an unsworn statement is unlikely to draw attention to the fact that another accused took the same course.

4.48 However, if in a joint trial one of the accused persons chooses to give sworn evidence it is highly likely that an invidious comparison will be drawn between ally accused who made in unsworn statement and the position of the accused who gave sworn evidence. Depending upon the order in which the various accused exercised their respective options and whether or not exculpatory evidence advanced by the accused who gave sworn evidence tended to incriminate the accused who did not, there is a capacity for extremely damaging comment to be made. The law does not prohibit this.³⁶ However the prohibition imposed by s407(2) of the Crimes Act precluding the trial judge from commenting on the failure of an accused person to give sworn evidence, is lifted by a proviso in the following terms:

Where two or more persons are being tried together, and comment is made. by or on behalf of any of them upon the failure of any of them, or of the husband or wife, as the case may be, of any of them, to give evidence, the judge may make such observations to the jury in regard to such comment or such failure to give evidence as he thinks fit.

4.49 Apart from this slightly exotic instance of co-accused taking different options and Comment on this being made by defence counsel in their address, the first occasion on which the jury is informed about the distinctive incidents of an unsworn statement will be in the final address of the prosecution or in the judge’s summing up. Whilst the highest authorities seek to establish the extent of what may and may not be said, the existing law and practice is in our view highly unsatisfactory for a number of reasons which we shall explain.

A. Permitted observations

4.50 Both the prosecutor and the trial judge may advert to the fact that the statement permitted by s405 is unsworn and not subject to cross-examination and thereby suggest to the jury that it may not be considered as persuasive as the evidence of witnesses who gave sworn evidence and subjected themselves to cross-examination. In a trial where the accused person has made an unsworn statement the direction which is given by judges when summing up to the jury is commonly in the following terms:

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.

This is composite based on the directions approved in the High Court in Jackson v The King³⁷ and those suggested by Griffith CJ in Peacock v The King.³⁸ Whilst the New South Wales Court of Criminal Appeal has frequently and consistently approved it and warned against departure from it,³⁹ the terms of this direction have not always found favour with judges. As Windeyer J said in Bridge v The Queen⁴⁰ adherence to the “formula” suggested in Jackson’s Case is “legally safe, although it is hardly logically satisfactory”.

4.51 In our view there are certain aspects of the”formula” direction which are unsatisfactory.

• It is dangerously ambiguous as to the evidentiary status of the unsworn statement. The authorities are, in our view, quite clear that material advanced by an accused in an unsworn statement has probative or evidentiary effect (para 2.25) so far as that accused is concerned. Yet the opening and closing phrases of the formula compares the statement with “the evidence”, although other parts of the formula suggest that it is “evidence” albeit not “sworn” evidence. As will become apparent (para 4.63) we support the jury being told of the relevant distinctions between sworn evidence and the unsworn statement (ie the oath and the liability to cross-examination). It is however in no way helpful to a jury to suggest other distinctions, which are non-existent and meaningless, such as material which should be taken into account because it is evidence and material which. though not evidence, should nevertheless be taken into account.
• The language of the direction is unbalanced. On the one hand it refers to the unsworn material as a “possible version” of the facts and on the other hand to facts “clearly established by the sworn evidence”. The denigration of unsworn evidence is inescapable. It is well established that it is for the jury to attach such weight to the unsworn material as it considers fit.⁴¹ It is open to them to accept the unsworn evidence and to reject sworn evidence, even where the latter is not subject to a challenge. It is traditional to find in the portion of a summing up which deals with the sworn evidence explicit reminders that the facts are the exclusive province of the jury and that any judicial comment is not intended to suppliant the view of the facts which is formed by the jury. The “formula” direction contains adverse “comment” without any such reminder.
• Some of us hold the view that the “formula” direction implies that which it is supposedly prohibited from doing (see paras4.53 and 4.55), namely that the accused person who makes a statement has the right to give sworn evidence. In Our view it is impossible to formulate a collection of words designed to distinguish between unsworn and sworn evidence which do not at least indirectly convey the prohibited information As Windeyer J has said in the High Court, if an accused person makes an unsworn statement:
  
  the judge should, it has been held, direct the jury in their evaluation of it-by telling them that they are to take it into consideration and give it such weight as they think fit along with the sworn evidence, but that it is not evidence in the same sense, as it lacks the sanction of an oath and the test of cross-examination. I find it hard to see how in doing this the judge can ever be sure that his remarks do not amount to a comment on the failure of the accused to give evidence.⁴²
• As we point out below (para 4.54) judges are frequently tempted to depart from the “formula”. This in our view reflects judicial dissatisfaction with the current law which is perceived to to be unrealistic and unsatisfactory.

4.52 None of these criticisms is capable of easy remedy. We do not think it desirable to prescribe some statutory form of an appropriate summing up. This is not the place to discuss the general topic of standard form directions, but we should record the view that this particular topic does not call for singling out. In any event our recommendations that the evidentiary status of the unsworn statement should be confirmed (para 4.35) and that the prohibition on judicial comment should be modified(para 4.62) would both have the effect of rendering the present “formula” direction unnecessary and inappropriate.

B. Prohibited comment

4.53 Section 407(2) of the Crimes Act, 1900 prohibits any comment by the judge or by counsel for the Crown on “the failure of an accused person to give evidence”. This prohibition was enacted in the light of the decision of the Privy Council in kops v The Queen.⁴³ Although an accused person was afforded the right to give evidence in trials of indictable offences in 1891 (para 2.35), it was recognised that certain accused would feel prevented from availing themselves of that right and would prefer to exercise the statutory right previously enacted in the predecessor to s405 to make an unsworn statement:

Hence the legislature determined to prevent the enactment [of the right to give evidence], if not used by the prisoner, from being employed as a means of inculpation. This leads ... to the conclusion that sub-sec 2 of sec 407 is a limitation of the power of comment only so far as relates to the rest of that section and contains no prohibition regarding sec 405. It is necessary to bear this distinction in mind. So far as the latter-mentioned section is concerned, the law remains unchanged, and comment may still be made, either that the prisoner has not made any statement as permitted by that section, or that the statement, if made under it, is not on oath and therefore may not be considered as weighty as the evidence of witnesses under oath. If, however, reference, direct or indirect, and either by express words or the most subtle allusior and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath and yet failed to give, or in other words, “refrained from giving”, evidence on oath there would be a contravention of the sub-section now under consideration. The question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used.⁴⁴

4.54 Despite the safety of adherence to the “formula” the prohibition in s407(2) has provoked a continuing spate of litigation. Time and again trial judges have, not surprisingly, baulked at the ritualistic, ambiguous, and unhelpful nature of the approved direction and have added comments directed at the particular circumstances of cases before them. The high incidence of appeals based on this ground suggests that the law on this subject is not clearly stated and, if it is, not consistently applied. Appellate courts have frequently been finely divided on whether the additional material constituted prohibited comment.⁴⁵

4.55 It has been held that s407(2) prohibits:

any expression designed to attract or which would necessarily attract, the attention of the jury to the fact that an accused person competent to give evidence in the witness box did not do so.⁴⁶

Thus it is prohibited comment to point out that the accused was at liberty to give evidence on oath but refrained from doing so,⁴⁷ although the approved formula permits the statement to be contrasted with evidence given on oath and subject to cross-examination. It is also improper for reference to be made to the fact that the accused made the statement from the dock-if that is where he or she stood to make the statement.⁴⁸

4.56 It is however clear that to convey certain types of information to juries will also constitute prohibited comment In R v Greciun-King⁴⁹ a conviction was quashed in circumstances which clearly illustrate the absurdity of the present law. The trial judge received the following query from a juror:

All witnesses called by the Crown and by the Defence have given their evidence before the jury on oath since the jury was selected. I do not recall Mr Greciun-King taking the oath. Did the Court require that Mr Greciun-King take the oath before pleading, that is before the jury was selected? If so was Mr Greciun-King precluded from taking the oath by reason of his unwillingness to enter the witness box?

The judge answered the query by simply informing the jury of the three courses open to an accused person including the right to “give evidence on oath from the witness box like any other witness”. He reminded them that no adverse conclusion should be drawn from the fact that the accused decided to make a statement rather than give evidence. Whilst this direction did not in any respect mis-state the effect of the law it was held in the context of the jury’s question to constitute a reference to the fact that the accused had not given evidence on oath and therefore to be in breach of the prohibition in s407(2). Street CJ remarked that:

this case exemplifies the practical difficulties that are presented by the prohibition in s407(2) ... Unless and until Parliament amends the statute a trial judge is forbidden to tell a jury what the law really is even when as here, he is asked a specific question by the jury. This has been suggested to be tantamount to requiring juries to determine cases with a partial blindfold upon the true state of the law. There is much to be said in favour of bringing the administration of justice out into the open Those concerned in the conduct of criminal trials-certainly the judges, if not indeed both judge and counsel-should be freed from this artificial fetter which can only serve to mislead the jury as to what the true state of the law is. His Honour, in straight forward and wholly correct terms, answered the specific question the juror had asked: he told the jury exactly what the law was. Understandably he found it distasteful to the point of being unacceptable, to equivocate with or mislead the jury as to the true state of the law. It is an absurd paradox that, by having accurately stated the accusers rights as enacted in the Crimes Act the judge has caused the trial to miscarry. Statutory secrets enforced on the courts and on juries such as s407(2) do less than justice to the commonsense and fairness of juries.⁵⁰

Lee J said:

It is difficult to perceive a sound reason based upon considerations of justice for withholding from a jury that an accused person has a right to give evidence on oath but the present case illustrates that on an important matter a jury must, if the law is to be applied correctly, be kept in a state of deception. The only course that was open to the judge in regard to the jury’s question in the present case, unless he were to make a forbidden comment and cause the trial to abort, was to tell the jury that the question was irrelevant to the matters the jury was called upon to consider, or state that the jury should not concern itself with the subject matter of the question that had been asked or put forward some similar evasive answer, or simply state that he would not answer the question. Judge Sinclair took the only proper course, in my opinion, by refusing to dissemble and by giving a frank honest and correct answer to the juror’s question. The jury by the question asked had recognized that the failure of the accused to give evidence could have significance in deciding where the truth lay-as it undoubtedly could have-yet s407(2) operates, indeed is designed to operate, to prevent the jury knowing that he could have given evidence if he had wished to.

Justice with blinkers on can hardly be called justice. Procedures applying in regard to the conduct of a criminal trial should be capable of explanation by the judge to the jury without resort to concealment of the truth of the situation.⁵¹

4.57 In our view the state of the current law, as revealed by these judgments, is highly unsatisfactory. The position exposed by R v Greciun-King is absurd, as the criticisms advanced by Street CJ and Lee J make plain.⁵² It is based on a presumption of ignorance by the jury that is probably ill founded. The chance that no juror is aware of the accused’s right to give evidence must be small indeed. Significant numbers of accused give sworn evidence and, even if none of the jurors has previously been in a trial where this has occurred it is likely that at least one of them will have read in the newspapers one of the widely reported cases in recent years where the accused gave evidence and was cross-examined. There is an even greater risk of serious injustice if jurors, being uninstructed, form an erroneous belief as to the true legal position. For example, in discussions we have had it has been reported to us that some jurors believed that the accused could not give sworn evidence because of prior criminal convictions. On the other hand we have been told of jurors believing that the accused was compelled to stay in the dock throughout the trial and for that reason was not entitled to give sworn evidence. It is quite wrong that a jury should, in performing what is already a peculiarly difficult task be left to speculate upon such matters as whether the accused was sworn in their absence, whether the accused had no right to give sworn evidence, or whether the Crown did not cross-examine the accused because it had nothing to confront the accused with in response to his or her version of what took place. In our opinion, this artificial practice of trying to conceal from the jury a fact that is probably known to most of the jurors should be abandoned.

4.58 In Victoria, the judge is expressly authorised to comment where an unsworn statement is made. In South Australia and Tasmania there is no legislative provision prohibiting judicial comment. In England, Queensland and Western Australia prior to the abolition of the right to make an unsworn statement, judicial comment was also permitted. in these jurisdictions there is. in addition to the general principles as to fairness in summing-up, a body of law discussing the extent and limits of judicial comment on the topic.⁵³ The Australian Law Reform Commission has in its Interim Report on Evidence recommended that the trial judge be able to comment on the failure of the accused to give sworn evidence but the comment shall not suggest that-

(a) the defendant did not give sworn evidence, or offer himself or herself for cross-examination because the defendant believed that he or she was guilty of the offence concerned, or

(b) unsworn evidence is, by reason only that it is unsworn evidence or that it was not subject to cross-examination necessarily less persuasive than sworn evidence.⁵⁴

4.59 It may be noted that (a) has some resemblance to the recommendation of the Criminal Law Review Division which is referred to in para 2.39. The Commission considers that such a proviso is so obyious that it does not require legislative underpinning, although it might be otherwise if one were attempting to codify the law of evidence in this field.

C. Recommendations on judicial comment

4.60 We are unanimous in the view that the situation exposed by R v Greciun-King (para 4.56) should be remedied. We consider that the jury should not be left to speculate about theposition adopted by the accused and that it should be permissible for the judge to inform the jury about the options open to the accused. This would preclude the uncertainties and dangers of injustice mentioned in para 4.57. We envisage that the jury would, in the presence of the accused, be informed of the various options and their legal characteristics immediately before the commencement of the case for the accused although it would be open to the judge to inform the jury at any other stage of the trial. Since most accused persons are represented by counsel or are otherwise aware of their rights it seems unduly artificial that the remarks should be addressed to the accused and not to the jury. Naturally information of this nature, if appropriate, could be repeated in the summing up or, as in R v Greciun-King, in response to a question from the jury. Mr James records that he would prefer that the jury should only be instructed on the matter if, as in R v Greciun-King, a question is raised indicating that the issue has become a live one in the minds of the jurors. He is, however, prepared to concur in the broader approach to which the other members of the Division are committed.

4.61 We do not propose that it should become mandatory for such information to be provided but expect that this would happen as a matter of course. An amendment to s407(2) is required because R v Greciun-King establishes that for the judge to provide this type of information will in an appropriate context amount to “comment” about the failure of the accused to exercise the right to give sworn evidence.

4.62 For these reasons we recommend that the judge should be entitled to inform the jury that an accused person may give sworn evidence, give evidence by way of an unsworn statement, or give no evidence and to inform the jury of the legal characteristics of each option.

4.63 In cases where the accused person makes an unsworn statement it would continue to be appropriate for the judge to inform the jury of the incidents of such evidence, namely its unsworn nature and the fact that the maker is not subject to cross-examination. No statutory amendment seems necessary to achieve this.

4.64 The statutory affirmation of the evidentiary status of the unsworn statement which we recommend (para 4.35) and the repeal of the prohibition on judicial comment in s407(2) should lead to the demise of the “formuld’ direction which is based on the need to have a safe course whereby the judge can steer as close as possible to the wind of the judicial prohibition whilst still providing some assistance to the jury. With the intended extinction of the existing “formula” those unsatisfactory features to which we drew attention in para 4.51 will naturally disappear. This would, we believe, lead to juries being invited to consider material advanced by way of an unsworn statement in a realistic way.

4.65 Each of these consequences should follow from the recommendations made earlier in this Report and from the repeal of that portion of s407(2) which relates to judicial “comment”. The question arises, however, as to whether this should be replaced by some form of legislative restraint upon types of judicial comment which might be considered likely to be made that would be misleading to the jury or unfair to the accused person. On this question the Division finds itself in disagreement.

4.66 In the view of a minority of members of the Division (Mr Mason, Mr Justice Roden, and Mr Sackville) there should be no statutory proscription of any particular type of judicial comment. In their opinion the argument that judicial comment should be restricted by statute proceeds upon an assumption that judges are likely to fail in their overriding duty “to secure for the accused a fair trial according to law”⁵⁵ and that appellate courts would be unable to check such failings. In jurisdictions where there is no proscription upon the form of judicial comment the courts have worked out guidelines as to what are proper forms of comment.⁵⁶ Rules prohibiting certain types of comment necessarily lead to fine distinctions which can lead to disputes and appeals. More importantly, they mean that undue attention will be concentrated upon whether or not a particular summing up infringed a particular prohibition rather than whether it constituted a generally fair and appropriate direction to the jury. They may operate to preclude a trial judge from giving full assistance to the jury in performing its difficult task. We consider that the jury should get information and assistance, where appropriate, about the nature of the options open to the accused person and the manner in which such matters apply to the facts of the particular case. As the High Court said in Alford v Magee it is a “great guiding rule” that it is:

of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before then-L.. the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case.⁵⁷

Whilst it is possible to envisage types of comment (such as canyassing the reasons why a particular course is taken where there is no evidentiary basis for doing so and where the matter has not been raised in addresses) which would be improper, the minority reiterate that the courts overriding duty to ensure a fair trial is, in their view, a sufficient restraint and that to prescribe particular prohibitions is likely to create rather than solve difficulties.

4.67 However the majority of the Division (Mr Byrne, Mr James, Judge Mathews and Miss O’Connor) consider that it is appropriate that there should continue to be a clearly stated objective standard which marks the point beyond which a direction to the jury becomes improper. In jurisdictions where judicial comment is or was formerly permitted there are enough reported instances of what is considered to be unnecessarily inflammatory comment to lead the majority to the view that the specification of such a standard is desirable.⁵⁸ The majority particularly, have in mind comment, which invites the jury to speculate why the accused chose to refrain from giving sworn evidence where that issue has not previously been canyassed in evidence or addresses. The risk of such comment being made could only have the effect of putting strong pressure upon accused persons generally to forego their right to make an unsworn statement. Despite the development of a judicially approved formula which might set out the limits of appropriate comment, there would always be the risk of transgression. Past experience shows that risk to be a real one. If unrestrained judicial comment is permitted, experience suggests that different judges would approach the matter with entirely different preconceptions about the propriety of making an unsworn statement. In other words it is difficult to be sure of consistency of treatment without some statutory prescription.

4.68 The majority has approached this issue by asking the question “Is there any form of judicial comment that will always be unfair or undesirable and of which there is at the same time a real risk that it might be given?” If the answer to both these questions is yes, then that form of comment should be prohibited. If the answer is no to either, we would agree with those arguments in para 4.66 and join the minority. Our answer is yes to three types of “comment”. The types of judicial comment which in the view of the majority, should be prohibited by legislation are those discussed below:

• It should be remembered that the existing prohibition in s407(2) of the Crimes Act, 1900 is not confined to comment when the accused person makes an unsworn statement. It extends to the situation where the accused exercises the right to stand mute. Indeed it was in order to cater for this situation that the prohibition was primarily designed: s407(2) stands as a proviso to an enactment making the accused person a competent witness. It is common place for judges to instruct juries that they should draw no adverse inference from the fact that an accused person stands mute.⁵⁹ We consider this an appropriate direction and for that reason we feel that any direction which ran contrary to it would be objectionable. It is therefore recommended that a judge shall not comment upon the failure of an accused person to give evidence. Since the unsworn statement is, under our proposals, given statutory recognition as evidence, such a prohibition would clearly apply only to the situation of the accused person who stands mute.
• One of the major objections to the “formula” direction is that it denigrates the value of unsworn evidence in a statement when compared with sworn evidence. We consider it misleading to do this. It should be made clear to the jury that it must determine the weight which it considers the unsworn evidence is entitled to. We therefore recommend the judge should not suggest that unsworn evidence is, by reason only that it is unsworn or that it was not subject to cross-examination, necessarily less persuasive than sworn evidence. These are matters for the jury to decide. We note that this recommendation accords with that made by the Australian Law Reform Commission in its Interim Report on Evidence (see para 4.58).
• it is recommended that the judge should not comment on the reasons why any of the options available to an accused person was or was not taken unless the issue is raised by the accused person or by a co-accused in the presence of the jury. Such a prohibition would preclude statements inviting the jury to speculate why the accused chose to remain silent or to make an unsworn statement. This would prohibit comment of the “what has the accused got to hide?” variety. The proviso would however allow appropriate comment, if, for example, the accused person made a false statement about his or her rights or the incidents of an unsworn statement or if a co-accused who gave sworn evidence commented upon an accused who did not. This latter aspect of the proviso reflects the existing law (see para 4.48).

4.69 It is recognised that to allow the jury to be informed about the accused’s right to give evidence and yet to preclude certain types of comment upon his or her choice will result in the creation of “fine” lines.⁶⁰ Nevertheless the Commission (by majority) considers that certain prohibitions should be retained in the interests of consistency and fairness to the accused. We do not consider it wrong in principle for legislation to contain provisions which give some guidance as to the manner in which trial judges should direct juries in criminal cases. We note that some cases have been overturned by the appeal courts where the transgression by the trial judge was clearly unintentional.⁶¹

D. The right of the Crown prosecutor to comment

4.70 One member of the Division (Mr Justice Roden) considers that there should be no legislative restriction at all upon the right of the Crown prosecutor to comment on the courses open to or the course adopted by the accused. In his view it is best to enable the prosecution to put such submissions as it thinks fit on the subject so that any issues relating to the choice taken by the accused can be fully and openly addressed. If the prosecution cannot do this and if the accused or counsel for the accused deal with the matter, either in the course of evidence or in address, it is left to the judge to give an appropriate direction: this can create an impression in the eyes of the jury that the judge is entering the fray by creating arguments in favour of the Crown’s case. This interferes with the judge’s proper role of putting the opposing cases fairly to the jury. The temptation upon the prosecution to make improperly inflammatory remarks would be curbed by the Crown prosecutor’s general duty of fairness which is recognised and enforced by the courts, as well as by the fact that counsel for the accused will address later. In addition the court s own power to make appropriate remarks in the slimming up will serve as an adequate deterrent or remedy in the exceptional case that might arise when counsel for the Crown treats the matter unfairly.

4.71 The remaining members of the Division however, recommend that there should continue to be legislative restraint upon certain types of comment by the prosecution. This is the position prevailing in most jurisdictions where the unsworn statement is or was previously permitted. It is the recommendation made by the Australian Law Reform Commission in its Interim Report on Evidence. We are content to adopt its reasons:

Great care would be required in commenting on the failure to give sworn evidence. The comment, consistently with the judge’s power to avoid injustice, would have to avoid criticism of the accused for not giving sworn evidence and avoid suggesting in anyway that guilt may be inferred from the decision. Through lack of experience or excessive zeal prosecutors could easily go too far in their comments and could abort a trial that was reaching its conclusion The hazards of criminal trial procedure would be increased.⁶²

4.72 As to the type of comment by the prosecution which the majority would wish to proscribe the traditional manner of expressing the prohibition has been in relation to “the failure of the accused to give (sworn) evidence” (s407(2) of the Crimes Act 1900). Consistent with the permitted “formula” judicial direction (cf para 4.50), the Crown prosecutor is allowed to refer to the fact that any statement was unsworn and that the accused was not subject to cross-examination, but he or she cannot refer to the fact that the accused who stood mute or made an unsworn statement had the option of giving sworn evidence. Of course our recommendation that the judge be permitted to inform the jury about the options available to an accused person (para 4.62) will mean that the jury will usually be made aware of such facts regardless of what the Crown prosecutor says. Despite this, indeed because of it, we consider that for the reasons given in the preceding paragraph it remains inappropriate that the Crown prosecutor should advert to such matters in the normal course. These reasons operate a fortiori to preclude comment canyassing the reasons for the accused electing not to give sworn evidence.

4.73 However the majority see considerable force in the reasons which it induce Mr Justice Roden to take the stance summarised in para4.70. In particular we perceive that there will be cases where it will be more appropriate for the prosecution to comment on the issue than to leave it to the trial judge. If, for example, an articulate and composed accused person made apparently untrue claims as to why he or she chose to make an unsworn statement it might be appropriate for something to be said on the matter other than by the trial judge. To cater for this type of situation the majority would allow comment to be made by the Crown prosecutor, with the leave of the court, if the matter is raised by or on behalf of one or more of the accused in the presence of the jury. We would envisage that, if such matter is raised in an unsworn statement or in sworn evidence given in the case, it would be appropriate for such leave to be sought prior to the Crown commencing its address. If the matter is first canyassed in the course of address on behalf of the accused it might be appropriate for leave to be given for the Crown to deal with the matter in reply.

4.74 We therefore recommend (by majority) that the Crown prosecutor shall not comment on the fact that the accused person f ailed to give sworn evidence or evidence unless this issue has been raised in the presence of the jury by the accused person or by a co-accused or by their legal representatives and the judge gives leave for the Crown prosecutor to comment. As in our earlier recommendations (para 4.68) “evidence” here includes material given by way of an unsworn statement.

VIII. SHOULD THE RIGHT TO MAKE AN UNSWORN STATEMENT BE EXTENDED TO SUMMARY TRIALS?

4.75 The issue is whether the right to make an unsworn statement should be extended to all courts exercising summary jurisdiction. As we noted in para 2.14, the Justices Act 1902 has been interpreted as precluding the right in summary proceedings before magistrates, although the Court of Appeal has recently suggested that, as a common law right, it applies to any other form of summary proceedings.

4.76 In Victoria and Tasmania the right extends to summary proceedings before magistrates, but this is not the case in South Australia. When the Victorian Law Reform Commissioner examined this subject in 1981 the discussions that he had with magistrates led him to the conclusion that the system operated successfully, and that there were no serious abuses of the right. The magistrates reported to him that if the unsworn statement were to be removed then the efficient operation of their courts would be affected and delays would result. The Victorian Law Reform Commissioner recommended in 1981 that this right should be retained.⁶³ “The Australian Law Reform Commission in its interim Report on Evidence reviewed this area of the law. It proposed that the right to make an unsworn statement should be available in all criminal trials.⁶⁴

4.77 The main argument raised against extending the right to summary proceedings is that the factors that justify reception of evidence from an accused person by means of an unsworn statement only apply to the trial of serious criminal cases before juries. It is also, somewhat cynically, put that magistrates are so unlikely to be impressed by unsworn evidence that it is unhelpful indeed dangerous in the case of unrepresented accused to offer the option in such proceedings.

4.78 From our experience the current practice in Local Courts in New South Wales is inconsistent. Some magistrates will give the opportunity to an accused person (probably if unrepresented) to put material before the court in a contested case without requiring him or her to be sworn. Other magistrates do not adopt this practice. We consider this inconsistency to be undesirable.

4.79 We recommend that the right to make an unsworn statement should be extended to summary proceedings. This recommendation is made for the following reasons:

• The general arguments in favour of retaining the right apply in relation to summary proceedings before magistrates although their weight is diminished by the matters adverted to in para 4.77.
• Major amendments to the Crimes Act 1900 in 1974 and 1983 have extended the jurisdiction of Local Courts so that they now can hear, with the consent of the accused persor a vast range of very serious criminal offences. It is undesirable that an accused person should be discouraged from opting for a summary trial because the procedures before a magistrate are, in his or her view, less accommodating.
• It is desirable to ensure greater consistency between the practices of the courts conducting trials on indictment and those of summary jurisdiction This principle is indeed reflected in s79 of the justices Act 1902.
• If the right to make an unsworn statement is abolished in South Australia (para 3.1 1), there would be some merit in having uniformity in the position of those courts which retain the right. It is available in summary proceedings in Victoria and Tasmania and a similar proposal has been made by the Australian Law Reform Commission for the courts affected by its Interim Report.

1. See Australian Law Reform Commission Interim Report on Evidence (1985) para 586.

2. The reasons for its retention are persuasively argued by the Australian Law Reform Commission note I above, paras 11-15.

3. Hansard, House of Lords, 14 February 1973, p1612.

4. Submission made by Mr J Dowd, MP.

5. An accused who chooses to offer no explanation before or during the trial to account for evidence pointing to his or her implication in the offence charged may legitimately be made the subject of comment by both prosecutor and judge to the effect that no explanation has been offered: R v Stojadinovic [1973] 2 NSWLR 807: R v George (1981) 4 A Crim R 12.

6. Dr G D Woods QC. See also Fraser v The Queen [1984] 3 NSWLR 212 at 224-5.

7. As some of those who made submissions argued.

S. See further Australian Law Reform Commission note 1 above, vol 1 pp 321-322. See also note 5 above.

9. This view is advanced by Mr Justice Beach Unsworn Statements in Criminal Trials, Nov 1981 Police Life 4 and Mr Justice Marks, “Thinking Up” about the Right to Silence and Unsworn Statements. (I 984) 58 Law Institute Journal 360.

10. Lord Widgery in R v George (1978) 68 Cr App R 210 at 211. per Lord Widgery CJ.

11. Mr J P Bryson QC.

12. Australian Law Reform Commission note 1 above, vol 1 p328 and draft Evidence Act s21(9).

13. Crimes Act 1900 s333.

14. See chapter 2, note 20.

15. See chapter 2, note 28

16. R v Kelly (1946) 46 SR(NSW) 344: R v Penberthy (NSW Court of Criminal Appeal 26 October 1978)

17. Mr R N Madgwick QC.

18. Australian Law Reform Commission. note 1 above, vol 1 p327.

19. Id, vol 2 p25.

20. Id, draft Evidence Act, s21(5)

21. The second part of that para.

22. Crimes Act 1900 s409C.

23. R v Wyatt [1972] VR 902 at 910.

24. (1932) 32 SR(NSW) 363.

25. Id at 375. per James J.

26. Id at 375, per Dayidson J.

27. R v Wyatt [1972] VR 902.

28. Para 2.1 1 above.

29. Such evidence is strictly inadmissible although it is usually permitted without objection. Where however the unsworn statement of one accused person implicates a co-accused the latter is entitled to object to a question in sworn evidence such as: “Was what you said in your unsworn statement true?”: see R v Attard [1970] 1 NSWLR 750 at 754-5 per Walsh JA (passage quoted in para 19 of New South Wales Law Reform Commission, Unsworn Statements of Accused Persons (1980)).

30. It is customary but not mandatory that the accused person should be the first person to give sworn evidence,. R v Lister [1981] 1 NSWLR 110.

31. Archbold, Criminal Pleading Evidence and Practice, 41 st ed Para 4-402.

32. Australian U, w Reform Commission note 1 above, vol 1 p327, draft Evidence Act s21(2), vol 2 p25.

33. The Australian Law Reform Commission deals with the topic. note 1 above. at chapter 36.

34 Chapter 2, note 25.

35. R v Ditton (1927) 44 WN (NSW) 87.

36. In its original form s407(2) prohibited comment even by a co-accused: see R v Ellis (1925) 37 CLR 147. The section was amended in 1926 to allow comment by a co-accused subject to the proviso referred to in the next sentence of the Report.

37. (1918) 25 CLR 113.

38. (1911) 13 CLR 619 at 640-641.

39. New South Wales Law Reform Commission note29 above para74; R v Cormack (1979) 1A Crim R 47l; R v Bell (unreported, New South Wales Court of Appeal, 31 May 1985).

40. (1964) 118 CLR 600 at 617.

41. R v Mason (1924) 18 Cr App R 131 at 132; R v Kerr(No 2) 1195 11 VLR 239 at 247.

42. Bridge v The Queen, (1964) 118 CLR 600 at 616.

43. 11 8941 AC 650. See Bataillard v The Queen (1907) 4 CLR 1282 at 1289-1290 per Isaacs J.

44. Bataillard v The Queen (1907) 4 CLR 1282 at 1291, per Isaacs J.

45. Eg Bridge v The Queen (1964) 118 CLR 600 where the High Court divided 3:2 on the propriety of a particular Summing up.

46. Bridge v The Queen (1964) 118 CLR 600 at 611 per Windeyer J.

47. R v Thomas (1957) 57 SR(NSW) 292.

48. Bridge v The Queen (1964) 118 CLR 600 at 605 per Barwick CJ; R v Bell (unreported) New South Wales Court of Appeal 31 May 1985.

49. [1981] 2 NSWLR 469.

50. Id, at 461-2.

51. Id, at 4 7 3.

52. Ironically, the decision of the Court of Criminal Appeal in R v Greciun-King recentlv returned to haunt His Honour Judge Sinclair who was the trial judge in that case. In R v Fuller (16 September 1985 unreported) His Honour discharged a jury after six weeks of a trial on the joint application of the Crown and the accused. A court attendant was asked by a juror “will the defendant go into the witness box?” to which he responded “He has the option of an unsworn statement from the dock or to give sworn evidence from the witness box or neither”.

53. See eg R v Simic [1979] VR 497; R v Perceval [1981] VR 624; R v Dutton (1979) 21 SASR 356 and Cross on Evidence 2nd Aust ed para 15.6.

54. Australian Law Reform Commission note 1 above, vol 1 pp 329-33; vol 2 pp 25-26.

55. Pemble v The Queen (1971) 124 CLR 107 at 1 18 per Barwick CJ. See also R v Gidley [1984] 3 NSWLR 168 at 180-1 and cases there cited.

56. Note 51 above.

57, (1952) 85 CLR 4; 7 at 466. See also Commissioner for Road Transport and Tramways v Preraver (1950) 50 SR(NSW) 271 at 277 per Owen J.

58. See G Williams, The Proof of Guilt pp 59-62.

59, See Cross on Evidence 2nd Aust ed para 15.6.

60. Cf Bridge v The Queen (1964) 118 CLR 600 at 605 per Barwick CJ. See para 4.54 of this Report.

61. R v McMillan (1967) 87 WN(Part 1) 387 at 396.

62. Australian Law Reform Commission note 1 above, vol 1 pp330-331.

63, Minogue Report, Unsworn Statements in Criminal Trials (1981) paras 7.04-7.06.

64. Australian Law Reform Commission, note 1 above, vol 1 p331.