I. INTRODUCTION

5.1 In this chapter we consider a number of practical issues relating to unsworn statements which have been raised in submissions which we have received or in the reports of other law reform agencies. These issues are:

• judicial control over the length of unsworn statements
• the right to read an unsworn statement
• the role of lawyers in the preparation and delivery of the statement
• counsel’s right to prompt the accused person
• the use of terms suggesting an oath or affirmation-

II. LENGTH OF UNSWORN STATEMENTS

5.2 A number of people to whom we have spoken have raised the problem of unduly long unsworn statements being made by accused persons. There are no available statistics about the length of unsworn statements, but our experience is that they seldom exceed half an hour. There have been instances of statements ranging over several days¹ although this is exceptional. In comparison with the time involved in the prosecution case we do not consider that the practice of making lengthy unsworn statements is in fact a serious problem. Acknowledging that there are occasions when the right is abused in this as in other ways we consider that the means currently available to the trial judge are sufficient and preferable to any arbitrary or rigid rule to govern the length of the statement. These means are the right to prohibit irrelevant and inadmissible material (para 2.26) and the cout’s inherent jurisdiction to control its own processes by ensuring that any steps in proceedings are not taken in such a manner as to constitute an abuse of process.²

5.3 As a means of keeping in check the length of court cases generally, the Chief Justice of New South Wales, Sir Laurence Street, has proposed the inclusion into the Evidence Act 1898 of a provision that would at once affirm the duty of judges to ensure that questioning of witnesses is relevant and not repetitive and at the same time confer on judges the power to enforce that duty. It is in the following terms:

Expeditious Disposal of Proceedings

(1) Where a judge considers it desirable in the interests of the expeditious disposal of proceedings in the court, commission or tribunal to which he or she belongs, he or she may by direction limit or restrict the time which may be taken by any party in addressing, in adducing evidence in chief, in cross-examining or in adducing evidence in reply and may by direction limit or restrict the subject matters or topics or the scope of any subject matters or topics which may be canyassed in address, examination in chief, cross-examination or reply.

(2) Without limiting the width or exercise of the power conferred by this section a direction may be particular in limiting or restricting the time which may be taken or the scope which may be canyassed in respect of particular subject matters or topics or it may be general or it may be partly particular and partly general.

(3) The power conferred by this section may be exercised in any proceedings whether civil or criminal whether with or without a jury, and may be exercised at any stage of the proceedings whether before the commencement of or at the commencement of or during the currency of any hearing whether final or interlocutory within the proceedings.

(4) A judge may at any time and from time to time vary in any way or wholly vacate any direction under this section.

(5) The provisions of this section apply in proceedings in the Supreme Court, the Industrial Commission, the Land and Environment Court, the District Court, the Workers Compensation Commission and such other courts, commissions and tribunals as may by regulations under this Act be prescribed.

(6) In this section judge means a judge or member of the court or commission or prescribed member of the tribunal and includes a master or magistrate.

(7) The power conferred by this section may be exercised in any proceedings current when this section comes into force or commenced thereafter.³

III. THE RIGHT TO READ AN UNSWORN STATEMENT

5.4 As we have already pointed out (para 2.29), an accused person has no right to read a prepared statement. The present practice is inconsistent⁴ some judges will allow an accused person to read a proposed statement, others will not and others will simply allow the accused to use notes to prompt the memory. This discrepancy in practice is itself unsatisfactory since it has a tendency to create confusion as well as leading to inconsistent treatment of accused persons.

5.5 We consider that in most cases an accused person’s statement will have a more favourable impact on the jury if it is delivered without reference to a document, since presentation by reading can be mechanical An accused person who reads a document, particularly if it is not wholly his or her own creation can also easily give the impression of reciting a text written by another rather than something that represents the accusers own case.

5.6 There are, however, cases such as trials for commercial fraud in which the volume of material that an accused person can legitimately put before a jury is so large as to make it unrealistic to present it without the assistance of an aid to memory. In current practice in New South Wales, this will usually mean prompting of some kind by counsel for the accused. Strictly there is little difference between such prompting and reference being made to written material. For this reason we suggest that reading of a statement should be allowed but it should not be done as a matter of course. In cases in which the defence involves the accused making a long statement or in any case in which the accused person appears to have exhausted his memory and to have forgotten something which he wishes to put before the jury, we would anticipate that leave would be granted. We see no difficulty in leaving this practice to the discretion of the trial judge to be exercised as he or she thinks fit in the circumstances of the case.

IV. THE ROLE OF LAWYERS IN THE PREPARATION AND DELIVERY OF THE STATEMENT

5.7 We consider that the current law and practice relating to the role played by counsel in the preparation of a statement intended to be made by an accused person should not be changed. The role of barristers in this procedure is adequately provided for by the rules of ethics which guide the practice of that profession Rule 55 of the New South Wales Bar Association Rules provides:

A barrister is entitled to assist an accused person in preparing any statement to be made by that person from the dock and may, form material provided by Such person draft such statement provided that the accused person before he delivers the statement acknowledges to the barrister that he understands and agrees with the contents thereof.

From the investigation we have conducted on this issue, we are satisfied that the role of lawyers in preparing statements is entirely proper in the vast majority of cases. None of the many submissions which we received suggested otherwise. The lawyer does not make up the statement for the accused person-it is based on the instructions given by the accused person and contains the material which the lawyer believes most effectively presents the case on behalf of the accused person.

5.8 We note that the Australian Law Reform Commission in its Interim Report on Evidence has recommended that counsel, with leave of the court-should be permitted to read the statement where the defendant is unable to do so.⁵ In our view this would be undesirable in that it would be likely to blur the distinction between the lawyer’s role as advocate and that of witnesses who give evidence in the case.

V. COUNSEL’S RIGHT TO PROMPT THE ACCUSED PERSON

5.9 We consider adequate the current law and practice of the courts which entitles the lawyer who appears for the accused person to remind his or her client of matters which were not covered by the statement (see para 2.29). It would in our view be desirable that such prompting should occur in the presence of the jury and that it should be done overtly so that the jury and the judge are not prevented from hearing the terms of the prompting. They are thereby able to more fairly assess the weight that they consider should be attached to the material that is presented in response to the prompting. However the matter does not in our view warrant legislative intervention.

VI. THE USE OF TERMS SUGGESTING AN OATH OR AFFIRMATION

5.10 From time to time there have been instances of accused persons saying words such as “This is the trutk the whole truth and nothing but the truth” as part of an unsworn statement. In one case reported to us, the accused produced a bible from among a collection of books and began “I swear by Almighty God...” before being stopped by a firm judicial expostulation. We do not consider that it is necessary to recommend any specific rule to cope with this situation. Our proposal that the judge should be required to inform the jury of the various options available to the accused will give the judge sufficient scope to deal with such a situation as the need arises. In particular, the judge will be able to inform the jury that the accused has not taken an oath or affirmation and explain the procedures by which that could be done. We anticipate that this misleading practice, engaged in by only some accused persons, will become a thing of the past.

1. John Stonehouse’s unsworn statement lasted five days: New South Wales Law Reform Commission Discussion Paper, Unsworn Statements by Accused Persons (1980) para 79.

2. Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR(NSW) 335 at 344: Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536.

3. Annexure to a letter to the Attorney General of New South Wales dated 8 February 1984. We gratefully

acknowledge the Chief Justice’s permission to use this material.

4. The inconsistency apparently derives from different approaches taken by trial judges to R v Sheehan [1926] SASR 243. R v Ross (1895) 6 QLJ 261 and R v Stuart [1959] SASR 144, 101 CLR 1 at 7-8.

5. Australian Law Reform Commission Interim Report on Evidence vol 1 p327, vol 2 p25.