I. INTRODUCTION
2.1 The Commission recommends adoption of the bill subject only to one substantive change in Part 3 in relation to unsworn statements. This is discussed below in paragraphs 2.16-2.30.
2.2 The Commission also makes comment on some drafting matters raised by the New South Wales Office of Parliamentary Counsel. The changes suggested for this and the other, more substantial, purpose mentioned in paragraph 2.1. are highlighted by underlining in the draft legislation which is attached to this Report in Appendix B. They are explained briefly here.
II. THE ALRC DRAFT BILL
Part 1 - Preliminary, clauses 1-10
2.3 Definitions. Most of the amendments suggested to the definitional provisions in cl 3 are made to accommodate the differences in constitutional and judicial structures between Federal and State systems. The amendments to the following terms fall into this category: “enactment”, “federal court”, and the changes in wording made to the definitions of “offence” and “police officer”.
2.4 Document. In the Interpretation Act 1987, the word ‘’document” is defined to include:
(a) any paper or other material on which there is writing or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and
(b) any disc, tape or other article from which sounds, images or messages are capable of being reproduced;
The ALRC definition “is drawn from the definition provided for in the Acts Interpretation Act 1901 (Cth) s25 but expands it slightly”.1 The ALRC definition of document includes:
(a) any thing on which there is writing;
(b) a map, plan, drawing or photograph; and
(c) a thing from which sounds or visual images are capable, with or without the aid of a device, of being reproduced, and also includes a part of a document as so defined and a copy, reproduction or duplicate of a document or of a part of a document.
2.5 Although the core meanings of the two definitions are very similar (paper or other material on which there is writing, compared with any thing on which there is writing and disc, tape or other article from which sounds, images or messages are capable of being reproduced, compared with a thing from which sounds or visual images are capable..... of being reproduced) they are not identical . The “marks , symbols or perforations having a meaning for persons qualified to interpret them” are not real equivalents of the ALRC paragraph (b) which includes “a may, plan, drawing or photograph” within the definition, yet they are probably wide enough to incorporate the ALRC material. The ALRC definition is probably wider than the NSW Interpretation Act when it includes “a thing which sounds or visual images are capable of being reproduced”, there having a potential to read the list of items in the State Act to things ejusdem generis with “any disc, tape or other article”. The ALRC definition also specifically includes a “copy, reproduction or duplicate of a document” and makes specific reference to a part of a document which the State Act does not.
2.6 The ALRC stated in its Report document was “central” to its suggested reforms.2 The definition in the bill
includes all the methods available information: ordinary writing, computer disks, computer tapes, microfilm, photocopies and the like. Documents that are part of the records of public bodies such as governmental and statutory authorities, and the records of parliamentary proceedings (Hansards) are included in a separate category of ‘public documents’3 because of the special provisions made about authentication and identification of these documents and about evidence of their contents.4
2.7 There are clearly two competing claims for uniformity involved in the choice of definition. Since the New South Wales Parliament has so recently settled oil its definition of document for all State purposes, the Commission recommends that the definition in the Interpretation Act 1987 be preferred to that suggested in the ALRC bill.
2.8 References to business. An amendment is made in cl 4 (1)(c) to replace the word “duties” with the word “functions”. The Commission believes this accords better with the definition of function in cl 3(2).
2.9 References to examination in chief etc There is rearrangement of words recommended in cl 5 (1) (a) from examination of a witness in chief of a “examination in chief of a witness”. This corresponds with the use of the term in Part 3, Division 3, cl 32(a), 40(a), 41, 45 and 49 and in cl 5.
2.10 Witnesses. The minor change in cl 10 from “Unless the contrary intention appears a reference in this Act” to “A reference in this Act” represents a stylistic preference and no change in substance.
2.11 There are no other changes suggested in Part 1. The Commission recommends, with the minor exceptions mentioned in paras 2.4-2.12, that Part I of the bill be adopted in full.
Part 2 - Application of Act, clauses 11-17
2.12 There are three amendments recommended in this Part. Clauses 12 and 15 should not be included in the State Act as they contain material peculiar to the federal jurisdiction [cl 12 relates to Territories and cl 15 deals with the application of the Judiciary Act 1903 (Cth)]. Clause 13 has been altered to incorporate this State is standard statement to bind the Crown.
Part 3 - Witnesses, clauses 18-49
2.13 The Commission’s one substantial departure from the policies expressed in the ALRC Report is made here in Part 3. It occurs in Division 2 in relation to unsworn statements, but also affects cl 23, in Division 1, the provision which relates to comment on failure to give evidence.
2.14 The ALRC has recommended retention of the unsworn statement in criminal proceedings, but has subjected its maker to liability for perjury.5 In making the statement the accused is to be allowed to use a previously prepared statement, or notes.6 If represented, the accused may seek counsel’s assistance in preparation of these materials.7 With leave of the court the legal representative is also to be permitted to prompt the accused on matters not raised in the unsworn statement.8
2.15 The court is to inform the accused of the choices available in giving evidence - to remain silent, to make an unsworn statement or to give sworn evidence. This advice is to be given in the presence of the jury,9 but the advice to those appearing without legal representation, that unsworn evidence may be more persuasive and unsworn evidence may amount to perjury, is to be given in the absence of the jury.10
2.16 The judge and parties other than the prosecutor are to be permitted to comment on the fact that the accused did not give sworn evidence, but not so as to suggest that the decision not to give sworn evidence was made by the accused with a belief in his or her own guilt.11 There is also to be no suggestion that sworn evidence is per se less persuasive than sworn evidence.12
2.17 Commission o n several of these recommendations. While we agree that the unsworn statement should be retained, we do not agree that it should be made subject to the offence of perjury.13 We agree that the accused should be allowed notes or a written statement, prepared if desired with the assistance of counsel, but we recommend that reference should only be made to such materials with leave of the court.14
2.18 The Commission agrees with the ALRC that instructions to the accused on the options available in giving evidence should be given before the jury, but we recommend that the jury and the accused person should also be informed of the following, additional, matters:15
- accused persons in criminal trials have a choice of giving or not giving evidence.16
- the person who makes an unsworn statement is not, subject to cross-examination, whereas a person who gives sworn evidence is.17
- there is no penalty for giving false evidence in an unsworn statement.18
We agree with the ALRC that the advice to be given to the accused person who is not represented (that unsworn evidence may be less persuasive than sworn evidence) should not be given in the presence of the jury.19
2.19 We adopt the ALRC recommendations on comment on unsworn evidence subject to the following changes. The judge and parties other than the prosecutor should be able to comment on the fact that the accused gave unsworn rather than sworn evidence.20 They should not, however, be permitted to comment on the fact where the accused has chosen to remain silent.21 With leave of the court, the prosecutor should be able to comment on both these matters (failure to give evidence and failure to give sworn evidence) but only where the matter has previously been mentioned before the jury.22
2.20 The reasons for our departure from the ALRC recommendations are set out fully in our Report on Unsworn Statements of Accused Persons (LRC 45, 1985). The primary recommendation in that Report was that “an accused person should retain the right to present his or her case in a matter that is reasonably free from formal restraint and without exposure to cross-examination”.23 We felt, however, that this recommendation should only be implemented if guarantees could be given of a fair balance being struck between the interests of the accused and those of the public in ensuring a fair trial. These interests we believed were represented in the 10 principles we identified as underlying all recommendations made in that Report. Those principles were set out in Chapter 1 of the Report. Amongst the more important for present purposes were:
- The Pursuit of Truth
One of the objectives of the rules of evidence and procedure at criminal trials should be to ensure that the material presented ..... is truthful and accurate. To this end, the law and practice in the courts should encourage witnesses to give truthful evidence and discourage them from telling lies.
- The Relevance of Evidence
The tribunal ... should receive all the evidence presented to it which is relevant to that issue .... Evidence which is irrelevant to the proof of guilt should where possible be excluded.
- Minimising the Risk of Convicting the Innocent
The rules of criminal procedure should minimise the risk that people who are in fact innocent are wrongly convicted.
- The Use of Lay Juries in Serious Criminal Trials
It is generally desirable that the trial of serious criminal offences should be conducted before a judge and a representative jury of citizens. If lay persons are to be involved it is necessary for the jury to be given certain information and instructions to enable it to follow the course of the proceedings and to assist it in reaching a conclusion on the question of guilt.
- The Participation of the Accused
An accused person has the right to participate in the trial of criminal charges brought against him or her. In formulating rules to prescribe the manner of such participation, it should be borne in mind that the accused person occupies a special position in the trial proceedings as the only person who is liable to suffer conviction and punishment.
- The Privilege against Self-Incrimination
The accused should not be compelled to assist the prosecution in the proof of the offences with which he or she is charged.
- The Elimination of Misleading Practices
The rules of criminal evidence and procedure should embody practices which are open and realistic and take account of current standards of knowledge within the community. Procedures that are fictitious or capable of misleading juries should be avoided unless the overriding need to ensure a fair trial compels.
2.21 Applying those principles to the matter in issue, we stated the following:
- Perjury and unsworn statements
2.22 There is no inherent reason why an unsworn statement could not attract a sanction for false swearing....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 in 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 part of 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 t lie responsible authorities to the prosecution of accused persons alleged to have made a false statement.
2.23 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, the fact is that such prosecutions a 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 individuals 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 stature in the eyes 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 persons who were determined to lie in criminal proceedings would be deterred by the presence of a sanction.24
- Reading a prepared statement
2.24 Currently an accused person has no right to read a prepared statement. The present practice is inconsistent; 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. 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. 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 lie 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.25
Comment on unsworn evidence
2.25 One of the matters to which the Commission gave particular attention in its Report was the question of judicial and other comment on the accused person’s choice to make an unsworn statement. We found several deficiencies in current practice in the area. One related to use of a formula statement when summing up on the matter to the jury.26 We found the wording of the formula to be ambiguous and unbalanced and capable itself of being construed as comment on the accused person's failure to give sworn evidence.27 We also found that, dissatisfied with the formula, many judges were tempted to depart from it,28 often giving grounds for appeal in doing so.
2.26 Under existing conditions we found that often the first occasion on which the jury would be instructed on the accused person’s options in the matter was during the judge’s summing up and that the prohibition on comment about the accused person’s failure to give sworn evidence often led to confusion amongst the jury as to the accused’s rights, some jurors believing the accused to be unable to give sworn evidence while others were aware of the choice which had been made.29
2.27 In view of the potential the existing law and practice had to operate capriciously, the Commission recommended 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”.30 These legal characteristics would be:
- that the accused is not liable for perjury; and
- that the accused cannot be cross-examined.
2.28 In making this recommendation, however, a majority of those considering the matter in the Commission thought that some restraints had to be imposed on judicial comment to ensure that inflammatory statements were not made about the accused’s choice of way in which to give evidence. The Report recommends that some forms of judicial comment be prohibited. These are:
- comment on the failure of an accused person to give evidence;
- suggestions 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; and
- comment on the reasons why any of the options available 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.31
2.29 The Commission also recommended that there continue be constraints imposed upon the types of comments available to the prosecution. We recommended that the prosecution be permitted to refer to the, fact that the statement was unsworn and to the fact that there can be no cross examination of the accused person. However, no comment was to be allowed the prosecution on the fact that the accused person remained silent or that the evidence could have been given in a sworn statement.32 The only exceptions to the prohibition which were recommended, allowed the prosecutor to comment on the failure to give evidence, or the failure to give sworn evidence, where the issue had been raised before the jury by the accused, a co-accused or by their legal representatives. Even in those circumstances, the Commission recommended that the judge must give leave before comment could be made by the prosecution.33
Comment on failure to give evidence
2.30 In consequence of recommendations on cl 28 the Commission recommends substantial changes to cl 23 as well. The ALRC proposal in cl 23 is that the Judge and any party other than the prosecutor be permitted to comment on the failure of the accused person to give evidence, although not so as to suggest that the failure indicates guilt.
2.31 The current law in this State is contained in the Crimes Act 1900, s407(2). That provision prohibits comment by the Judge or counsel for the Crown on the failure of the accused to give evidence, except where such comment is introduced before the jury by a co-accused.
2.32 In accordance with recommendations made for the amendment of cl 28, the Commission recommends that cl 23 be amended to allow the prosecutor (and not the Judge or any other party) to comment on the accused person’s failure to give evidence in limited circumstances. When the accused has raised the fact of his or her failure to give evidence before the jury as an issue in the trial the Commission believes that it should be open to the prosecution to comment on that issue. In making this recommendation, however, the Commission does not intend to deny the Judge the right to comment on any statement made by the prosecution. Although we would prevent the Judge commenting directly on the failure of the accused to give evidence, we do not wish to restrict the right to ensure a fair trial. If prejudicial material is introduced by way of comment by the prosecution on the accused person’s failure to give evidence, this should be able to be dealt with by the Judge in the same way as he or she would deal with any other material which may prejudice the conduct of a fair trial. If it is thought necessary to do so, an amendment should be made to cl 23 to ensure the continuance of this right.34
2.33 There are other amendments we recommend to Part 3 which are of less consequence. In cl 21 we recommend that a change of wording in both paragraphs from “a person who is acting as a judge” to “the Judge or juror”. We believe the wording “acting as” could be ambiguous.
2.34 Minor changes are also recommended in cl 22 and 24. In cl 22(S) and (8) a stylistic change is made by the addition of the words “without limiting the matters” to the beginning of the paragraph to ensure that the court’s discretion is not unintentionally restricted to the matters appearing in the sub-paragraphs which follow. This change has been made at several places throughout the bill. In cl 22(5)(b) “the completion or termination of the prosecution” has been altered to read “the completion or termination of the prosecution of the person” to avoid any ambiguity. In cl 24(5) the wording “that the witness is aware of the effect of” has been used to correspond with cl 22(4).
2.35 In cl 24(10) the wording used by the ALRC to describe a de facto spouse has been amended to correspond to the definition of that term appearing in the De Facto Relationships Act 1984. The ALRC wording was chosen to accord with the Sex Discrimination Act 1984 (Cth).
2.36 Other changes made in Part 3 do not require explanation. They are listed here for the sake of completeness:
- Cl 31 “Subject to this Act”.
- Cl 33(2) “in oral or written narrative form”.
- Cl 36(4) and 37(1) changes to the wording of the clause lion the request of a party” for consistency of expression.
- Cl 45(2)(c) “the cross-examiner” introduced for consistency with cl 3 definition and cl 46(2).
- Cl 46(3) For the purpose, instead of the plural, purposes.
- Cl 48(1) Where a party instead of “cross-examiner”.
Part 4-Admission of Evidence: Relevance Rule, clauses 50-53
2.37 This Part is accepted without change.
Part 5-Admission and Use of Evidence: Exclusionary Rules, clauses 54-119
2.38 The Commission recommends that this Part be adopted in full. The more significant drafting amendments are explained here, the others are self-explanatory and merely highlighted by underlining in the legislation in Appendix B. The more significant drafting changes are:
- Clause 59 has been redrafted to achieve better internal consistency within the clause and to make it correspond with the order of the wording in cl 56 and 57. There has been no change in substance.
- In cl 60(1) it was decided that it was more appropriate that the manner of giving notice of the intention to adduce hearsay evidence should be prescribed in rules of court rather than regulations under the Evidence Act. As some tribunals may not have power to make rules to govern their own procedures, we have retained the ALRC’s reference to regulations as well.
- In cl 82 a saving is made in relation to the Defamation Act 1974, which does not need to appear in the ALRC bill.
- In cl 89(3) amendments have been made to delete sub-paragraph (d) by incorporating the substance of what appeared there in the preceding two sub-paragraphs, (b) and (c). No change has been made to the substance of the clause.
- Clause 90(2) has been redrafted for the sake of clarity and brevity. There has been no change of substance.
- In cl 106 the term “involve” in sub-cll (1) and (3) has been changed to “result in” to coincide with the use of that term in sub-cl (2).
- In cl 106(1)(b) the wording has been altered to correspond with cl 106(3)(b), “that was prepared by or at the direction or request of the client or a legal practitioner”. Similar changes have been made in cl 107(4)(b) and 107(11)(b).
- In cll 107(15), 109(6), 110(6) and 113(5)(d) a statement has been included to ensure that the commission of an act includes an omission.
- Cl 113(1)(b) has been redrafted to accord with cl 106(l)(b). This involves no change of substance. with the use of that term in sub-cl (2).
2.39 The Commission has one reservation in relation to its recommendation to adopt Part 5. This relates to the need for special rules to regulate identification procedures. We believe that there is a need for special rules to govern these procedures and we propose that they should be contained in separate legislation covering police investigation of criminal offences. If such legislation were introduced, breach of any of the rules contained in it would become a matter to be taken into account by a court exercising the general discretions for the admission of evidence in cll 117, 118 and 119.
2.40 One of the members of the Division, Mr Paul Byrne, the Commissioner in charge of the reference on Criminal Procedure in the Commission, expressed concern in relation to two provisions in Part 5.
2.41 Mr Byrne’s first reservation related to the use of the word “intentionally” in sub-cll 103(1)(b) and 104(2). it is his view that identification evidence given by someone who has been influenced to make it should not be admitted whether or not the influence exercised was intentional. Inadvertent or subconscious influence could be just as prejudicial to the accused person as influence exercised intentionally. Mr Byrne recommends that the word “intentionally” be removed from cll 103 and 104.
2.42 In cl 105(1) Mr Byrne recommends the removal of the wording if the defendant so requests”. In substitution he recommends:
unless he or she is of the view that it would not be in the interests of justice to do so ...
Mr Byrne’s intention is that the decision whether a direction is made to the jury about the need to exercise caution before relying on identification evidence should not be left entirely to the accused person.
Part 6-Other Aspects of Proof, clauses 120-140
2.43 The Commission recommends that the provisions of this Part be adopted subject to the minor drafting changes noted in the legislation attached.
Part 7-Miscellaneous, clauses 141-151
2.44 Subject to the drafting amendments made in cl 144(3) the Commission recommends this Part be adopted unaltered.
FOOTNOTES
1. ALRC 38, App A 7, 216.
2. ALRC 38, 61; ALRC 26, Vol 1, S18.
3. Given in cl 3 as well.
4. See cll 125(1)(f) and 131.
S. ALRC 26, Vol 1, S86; cll 27 (1); 27(11).
6. Cl 27(3).
7. Cl 27(4).
8. Cl 27(7).
9. Cl 29(2).
10. Cl 29(3).
11. Cl 28(2)(a).
12. Cl 28(2) (b).
13. Cl 27(11) has been omitted from our recommended draft legislation.
14. Cl 27(3), (4).
15. 29(2), (3).
16. Cl 29(2)(b).
17. Cl 29(2)(c)(ii), 29(2)(d).
18. Cl 29(2)(c)(iii).
19. Cl 29(4)
20. Cl 28(1)
21. Cl 23(1)
22. Cll 23(2), 28(2).
23. LRC 45, 4.3, 4.16.
24 LRC 45, 4.19-4.21.
25. LRC 45, 5.4-5.6
26. Id 4.50-4.52.
27. Ibid.
28. LRC 45, 4.51, 4.54.
29. Id 4.57.
30. Id 4.62.
31. LRC 45, 4.68.
32. Id 4.72.
33. Id 4.74
34. In making this recommendation the Commission has in mind the restrictive interpretation given to the Judges’ powers in Greciun-King (1981) 4 A Crim R 88.
