Page 4486 - Week 14 - Thursday, 1 December 1994
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... I am aware that the Legal Affairs Committee of the Assembly has an interest in this matter. It is certainly not the Government's intention to proceed to debate this Bill until that committee has had the opportunity to make such inquiries and conduct such hearings as it feels appropriate, but the Government did feel that it was appropriate to nail its colours to the mast and join New South Wales and Tasmania, which have recently moved to abolish this right.
Since then, New South Wales and Tasmania have abolished the right of an accused to make an unsworn statement, leaving the ACT as the only jurisdiction in Australia where this remains.
Turning to the committee's report, I am pleased that the first recommendation supports the Government's position. That recommendation is:
that the right of the accused to make an unsworn statement during criminal trials be generally abolished.
Naturally, the Government agrees to that recommendation. The Government does not, however, agree to the second recommendation, namely:
that the Evidence (Amendment) Bill (No. 3) 1993 be amended to confer a discretion on the court to shield an accused from cross-examination (in whole or in part) where the intellectual disposition or cultural background of the accused makes this appropriate in the interest of justice and in the circumstances of the case.
In my view, such an amendment is simply not necessary. It is a very well established principle that there is basic discretion inherent in all criminal trial judges to exclude evidence that is otherwise admissible if it would unfairly prejudice the accused person. Further, sections 58 and 59 of the Evidence Act 1971 provide to the court a specific statutory discretion to disallow irrelevant questions going only to credit or scandalous or insulting questions. The fact is that there is already ample capacity in the court to protect an accused witness where questioning may be unfair.
Mr Humphries, in his speech presenting the committee's report, made reference to Aboriginal and Torres Strait Islander defendants. This Government's commitment to ensuring that the rights of our Aboriginal and Torres Strait Islander citizens is well known. I can assure the Assembly that I am confident that the inherent discretion in our judges, which I have discussed above, is adequate to protect their rights and interests. In addition, members should note that those jurisdictions which have large numbers of Aboriginal and Torres Strait Islander citizens who may be before the courts, such as the Northern Territory and Western Australia, have not found that an additional statutory discretion is necessary for the courts to protect the rights of such defendants.
The Government agrees with the final recommendation of the committee, namely:
that clause 5 of the Bill be amended to provide that the discretion given under proposed section 70(3) applies to the whole of section 70(2).
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