Page 4428 - Week 14 - Thursday, 9 December 1993
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A very limited response to this problem was provided by the insertion of section 76H of the Evidence Act, which limits the content of unsworn statements in regard to references to the sexual history of the complainant in sexual offence proceedings. The rules of evidence, which perform an important function in preventing irrelevant or hearsay material from being presented, do not apply as clearly or strictly to unsworn statements as they do to sworn evidence. Finally, the accused, in giving unsworn evidence, cannot be cross-examined on material in that statement to test its validity or truthfulness. Thus the accused is not restricted by the important safeguards which regulate the provision of evidence by other witnesses. Some would argue that unsworn statements represent an important right to which the accused should be entitled. However, nothing can justify treating the accused in such an unjustifiably privileged way. This Bill seeks nothing more onerous than to ensure that, if the accused does choose to give evidence, he or she is legally obliged to give a truthful account, and to face questioning from the prosecution about their testimony. Of course, the right to remain silent will remain as an option for the accused and it is important that this right be preserved.
Those who argue for the retention of this privilege raise two main concerns. The first is that an unjustly accused person can appear guilty under questioning by a skilled cross-examiner. I think that it is doubtful in the extreme to assume that a jury cannot distinguish a person who is lying under cross-examination from a person who is inarticulate, poorly educated or fears the consequences of his conviction. Furthermore, accused persons are represented by legal counsel, and are also protected by the judge's overriding discretion to ensure a fair trial. Considering these factors, it is unlikely that the prosecution would be able to take advantage of the accused's inability to cope with cross-examination.
The second justification for retention is that, without the use of unsworn statements, the accused would be deterred from truthfully claiming fabrication of evidence or an illegally obtained confession on the part of the prosecution or the police through fear of prejudicial evidence of prior convictions being introduced. This is a consequence of the existing law which, in some cases, has the effect of removing the prohibition on the prosecution raising the accused's bad character or prior convictions if the accused has made allegations relating to the character of the prosecution or its witnesses. Sometimes the prejudicial effect of introducing evidence of the accused's bad character or prior convictions can outweigh its probative value.
The overriding consideration that the accused receives a fair trial has motivated an additional measure in this Bill which will both narrow and qualify the operation of the provision. Clause 5 of the Bill amends section 70 of the Evidence Act to make it clear that only gratuitous attacks upon the credibility of the prosecutor and prosecution witnesses will provide a ground for the loss of the accused's protection against questioning as to character or criminal record. The Bill performs two functions. It removes an obsolete privilege, the existence of which cannot be justified, and it bolsters the right of the accused by ensuring that he or she retains the ability to present his or her defence in the most favourable way.
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