Page 4489 - Week 14 - Thursday, 1 December 1994
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EVIDENCE (AMENDMENT) BILL (NO. 3) 1993
Debate resumed from 9 December 1993, on motion by Mr Connolly:
That this Bill be agreed to in principle.
MR HUMPHRIES (5.37): This Bill abolishes the use of unsworn statements in our ACT courts. Since this process was begun, this particular rule now finds its lone existence in Australia here in the ACT. The Government has moved, and the Legal Affairs Committee has broadly supported it, for the abolition of the right to make an unsworn statement. At the present time a person who is accused of a serious crime in the Supreme Court has the right to do a number of things. One is not to give evidence. A second is the right to give ordinary evidence under oath or affirmation, which is evidence that can be cross-examined by counsel for other parties. The third option at the present time is the option of making a statement from the dock which is unsworn and which, therefore, is not susceptible to cross-examination. The present laws certainly govern the way in which the court and counsel in the court can comment on the fact that the accused person has made this unsworn statement. Certain inferences may be drawn from it and certain others may not be, in terms of what the jury is told.
This Bill is a significant piece of legislation. It is a reform that certainly is controversial. It does not, for example, have the support of the Law Society of the ACT, and it must be acknowledged that the Bill does provide for something of a decline in the benefit the accused person in a criminal proceeding has when appearing in that trial. After today, that person will no longer enjoy a right to make a statement in the court from the dock. The options available to that person are diminished. However, having said that, I again place on record the firm view of the Legal Affairs Committee of the Assembly that this is an appropriate way in which to proceed. The right to make an unsworn statement is a right which, I think, could fairly be said to be abused as often as it is used appropriately, and there are in this Bill protections built in to ensure that people who give evidence from the dock have the opportunity for limits to be placed around the sort of cross-examination of them that can arise as a result of having done that. It would be unusual to see these rights abolished without some kind of protection being put in their place, and the Legal Affairs Committee, with one small modification, accepts that those protections are appropriate; that is particularly in relation to subsection 70(2) of the Evidence Act. This is a controversial arrangement, and I am pleased that the Government has picked up and supported, broadly speaking, the recommendations of the Legal Affairs Committee.
There is the question of whether the Government ought to have allowed for some protection for those who come from backgrounds which might demand special consideration. Particularly, I draw the attention of the Assembly to the recommendation of the Legal Affairs Committee, which reads:
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.
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