Unsworn Statements

601. The Present Law. An unsworn statement is a statement made by an accused person, setting out the accused’s version of the facts, but which is not on oath and not subject to cross-examination.[517] Retention of the right to make an unsworn statement continues to be a matter of considerable controversy.[518] It has been abolished in Western Australia, Queensland, the Northern Territory (1984) and South Australia (1985), but it is retained in the other States and the Australian Capital Territory. Whether or not unsworn statements are retained generally, there is a question whether special provision needs to be made for unsworn evidence in the case of Aboriginal defendants with difficulties of language and comprehension, who experience special difficulties in giving evidence and in cross-examination.

602. Unsworn Statements and Traditionally Oriented Aborigines. Aborigines may be particularly disadvantaged in the courts either as defendants or as witnesses.[519] These difficulties may prevent an Aborigine adequately presenting his or her version of the facts to the court both in evidence in chief and in cross-examination. In particular, problems arise with cross examination through incomprehension of questions or reluctance to reject suggestions or propositions put by persons in authority.[520] The option of an unsworn statement may assist in resolving this problem. A Select Committee of the Legislative Council (SA) investigating these questions reported that:

The Aboriginal Legal Rights Movement, supported by three Adelaide counsel … submitted … that a special case could be made out for Aboriginal defendants in particular for whom the unsworn statement ought to be retained. They referred to a number of judgments in which it had been recognised that Aboriginal persons faced special problems in relation to the administration of justice. In oral submissions to the Committee, the Aboriginal Legal Rights Movement emphasised that, because of these particular difficulties, cross-examination was not necessarily a tool which could always be used effectively to establish veracity. Consequently the abolition of the unsworn statement would help neither the Aboriginal accused nor the interest of society as a whole.[521]

The Report referred to information from Aboriginal legal services in Western Australia and Queensland which generally supported these arguments. Both organisations considered that Aboriginal defendants were at a disadvantage in not being able to make unsworn statements as a result of the abolition of the right in both States.[522] This was a significant factor influencing the Committee’s conclusion that the unsworn statement should be retained.[523] Similar submissions, including one from the Commonwealth Government, were also made to the Northern. Territory government during discussions on the new Criminal Code (NT). These were unsuccessful in convincing the Northern Territory Government to retain the unsworn statement.[524]

603. Assistance with an Unsworn Statement. A particular issue which has arisen is whether an illiterate person should be able to have an unsworn statement read for him. As usual, the position throughout Australia is not uniform. In Tasmania, Victoria and possibly New South Wales[525] an accused may prepare and read a written statement. However, even where an accused is permitted to prepare a statement, usually with the assistance of counsel, it is not clear whether some one else can read the statement to the court. This is permitted in Tasmania[526] but it appears unlikely to be allowed in Victoria or New South Wales. In R v Stuart[527] the accused, an illiterate Aborigine on trial for murder, sought to have a prepared statement read for him. The trial judge refused after objection from the prosecutor, a decision which was upheld on appeal.[528] Defence counsel was, however, permitted to prompt the accused and assist him, but not actually to read the statement for him.[529] This approach disadvantages one section of the Australian community, namely ill iterate persons, Aboriginal or non-Aboriginal. There may be advantages during a trial for the jury to hear the accused and ascertain his demeanour in reading his statement, but it appears unfair for those unable to read and write not to have a prepared text presented for them. This is especially so where literate persons are able to read their own statement. The difficulties arising from illiteracy could be exacerbated by the additional inability to speak English to a standard that would be understood in the Court.[530]

604. Special Provision for Unsworn Statements: The Commission’s View. This Commission in its Evidence Report (Interim) recommended that the right to make an unsworn statement should be retained.[531] It also recommended that the accused should be able to receive assistance in the preparation of a statement and, with leave of the court, have the statement read by counsel. As with the law on admissibility of evidence on oath,[532] the scope of the right to make an unsworn statement is an aspect of the general law of evidence, and it is not the function of the Commission in this Reference to reform the law of evidence in relation to Aborigines generally.[533] But the difficulties in giving evidence experienced by many Aborigines, in particular by traditionally oriented Aborigines, are a powerful reason for permitting them to make an unsworn statement. In proceedings where unsworn statements may be made under the general law no special provisions need to be made. However, the special difficulties faced by many Aborigines are such that the option for them to give unsworn evidence should exist, whether or not it exists generally. This is the unanimous view of the Commission. However there is disagreement as to the precise test which should be applied to give effect to this conclusion. A majority of the Commission[534] takes the view that an Aboriginal defendant should be permitted to give unsworn evidence unless he or she is found by the court not to be disadvantaged in relation to the giving of evidence in the proceeding. Two members of the Division, on the other hand,[535] would ext end the right only to those Aborigines who the court positively finds to be disadvantaged in relation to the giving of evidence in the proceeding. The difference between the two views is essentially one of onus. On the majority view, the onus will be on the prosecution to establish that the defendant’s situation in terms of education, language, comprehension, etc is relevantly indistinguishable from that of members of the general community. This is not an unfair burden to place on the Crown because there will nearly always be members of the police force who will have spoken at some length to the defendant in the course of investigating the offence. This view also avoids putting the defendant’s counsel in the position of having, in effect, to denigrate the defendant in order to persuade the court to allow an unsworn statement to be made. On the other hand the minority view emphasises that the right to make an unsworn statement is exceptional since the question only arises when that right has been abolished generally, and that a special case needs to be made before a special right should be conferred. Whichever view is adopted, the Commission recommends that, in considering whether disadvantage exists, the court should have regard to any relevant characteristic of the defendant (including traditional beliefs and fluency in the English language) and any relevant mental or physical disability, and whether by reason of such a characteristic or disability the defendant is likely to be unfairly prejudiced by cross-examination. Where the defendant is unable to read, the unsworn statement should be able to be read to the court, with leave, by counsel. Counsel should also be able to remind the defendant of any other matter which should be referred to in the statement, and to ask supplementary questions to elaborate the defendant’s case.[536]

605. Comment on Unsworn Statements. Whether and in what ways, the judge, the prosecution and a co-defendant can comment on a defendant’s election to make an unsworn statement varies from State to State. There have been considerable difficulties, in States where comment is allowed, in drawing the line between permissible explanations of the procedure and its legal consequences, on the one hand, and impermissible suggestions that the defendant gave unsworn evidence out of a sense of guilt or because there was something to hide, on the other.[537] In its Evidence Report (Interim) this Commission concluded that the prosecutor should not be allowed to comment, and that any comment made by the judge or a co-accused should not suggest that the defendant gave unsworn evidence because of a belief in his or her guilt, or that unsworn evidence is necessarily less persuasive than sworn evidence.[538] In the context of a special right to give unsworn evidence, as proposed in para 604, the Commission concludes that the provisions in the Evidence Report (Interim) should be adopted. In particular, comments suggesting that unsworn evidence is necessarily less persuasive than sworn evidence should be prohibited. The whole point of the special provision proposed, applying as it does only to Aboriginal defendants who are found to be disadvantaged in relation to the giving of evidence, is that these persons are unfairly disadvantaged, through difficulties of language and comprehension and for other reasons, in the adversary system. With such defendants it is especially the case that their sworn evidence would not be more persuasive than their unsworn evidence: by definition, it would reveal only their disadvantage in giving evidence in the alien environment of a court. However, one member of the Division (Justice MR Wilcox) dissents on the exclusion of comment by the prosecution. In his view there is no good reason to exclude the prosecution from commenting. It is inherently desirable that the jury should understand what is happening in the trial. The greater the extension of the rights of an accused person in making an unsworn statement, for example by permitting prompting by counsel, the more difficult it will be for the jury to appreciate that this material is of a different nature to sworn evidence because it is immune from challenge by cross-examination. The majority proposal would allow the judge to comment but no guidance is offered as to the circumstances under which that discretion should be exercised, so that practice would probably vary. Under these circumstances it is wrong to prohibit the opposing party from informing the jury of the true situation. Any comments which go too far — like any other erroneous comment of counsel — will be corrected by the judge. Justice Wilcox also disagrees with the limitation on what may be said by way of comment. In his view sworn evidence is necessarily more persuasive than unsworn evidence given by the same person, even where that person is disadvantaged in some way. This is so, not so much because of the absence of an oath or affirmation, but because the evidence is not susceptible of challenge by way of cross-examination if it is false. In observing a defendant’s demeanour and responses in cross-examination, the jury can gain insight into the defendant’s state of mind, and the circumstances of the case, insight which, in the case of disadvantaged Aboriginal defendants, may well assist the defence. It can however be said that unsworn evidence is not necessarily less persuasive than sworn evidence given by other witnesses (with which there can be no generalized comparison). Accordingly any comment suggesting the contrary should, in Justice Wilcox’ view, be prohibited. All members of the Division are of the view that it is appropriate for the presiding judge to tell the jury that it is open to them, when assessing the value of unsworn evidence, to take into account that it was not given on oath or subject to cross examination, as was the evidence of other witnesses.