Page 2691 - Week 09 - Thursday, 25 August 1994
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This is a particularly serious problem with respect to rape trials and trials for sexual offences where, very often, defendants have made statements from the dock attacking the credibility or character of the prosecutrix, and where, effectively, there are very limited avenues for the prosecution to counter those kinds of statements. It does not need to be said that, apart from any offence and ill-feelings generated on the part of witnesses who are attacked in that fashion, it is also very clearly not in the interests of the trial to be unable to reach or to discover the truth in these matters. Clearly, the trial process does not and cannot result in the discovery of the truth where these sorts of unsubstantiated claims can be made from the dock and not addressed properly in the course of subsequent proceedings.
Therefore, Madam Speaker, the committee felt strongly that the institution of unsworn statements ought to be discontinued generally in the ACT. We recognise that there may be circumstances where individuals, nonetheless, might require some protection. The particular instance that was drawn to the attention of the committee, in this case by the Director of Public Prosecutions in a separate representation via me to the committee, was the position of Aboriginal defendants. It was suggested to the committee, for example, that in certain Aboriginal cultures it is sometimes either impolite or difficult for an Aboriginal person to reject or disagree with a forcefully made statement put to that person. In those circumstances it would be difficult for an Aboriginal defendant sometimes, in cross-examination, to be able to reject or to deny a strongly put assertion by prosecution counsel that was being placed before him or her.
I personally had some experience of that situation when I was in practice as a lawyer in New South Wales. I had the experience of cross-examining an Aboriginal witness on one occasion and I put to her, in the way that lawyers often do in the course of running a defence case, "You are making all this up, aren't you?". I had the surprising answer, "Yes", come back to me, despite the fact that she had given a completely different story throughout this particular cross-examination. I do not think, with respect, that that proved that she necessarily was lying; but it did prove, possibly, that there are some cultural issues, or ethnic issues, or even racial issues, which need to be borne in mind when cross-examination of a defendant in a criminal trial is taking place. As a result, Madam Speaker, the committee has recommended that, although unsworn statements be generally abolished in the ACT, there be a discretion conferred on the court to shield an accused person from cross-examination, either in whole or in part, where either the intellectual disposition or the cultural background of the accused makes this appropriate in the interests of justice and in the circumstances of the case.
Having made that recommendation, we acknowledge that it will not be an easy thing to place into legislation or possibly even for a court to administer. It does grant a considerable discretion to the court in circumstances where an accused might appear to be struggling or in difficulty in cross-examination, and it will be a matter of controversy, in circumstances where this discretion is exercised, as to whether it has been appropriately exercised or not. To completely remove that protection, Madam Speaker, I think, would undermine the legitimate interests of a defendant in certain situations in criminal trials, and we do need to make sure that, in the removal of the present right which defendants enjoy, they do not completely lose access to some protection against what can be very fierce, very horrendous cross-examination. I believe, Madam Speaker, that it is important for us
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