7.22 In DP 35, the Commission outlined the considerations taken into account by defence lawyers in making the difficult decision whether or not a defendant with an intellectual disability should give evidence. A defendant with an intellectual disability is likely to be severely disadvantaged under cross examination. He or she may be suggestible, have difficulty understanding the questions, appear evasive or inadvertently say something that unfairly prejudices the defence. The defendant’s demeanour, in the absence of a satisfactory explanation, may affect the jury. On the other hand, failure to give evidence may suggest guilt. DP 35 canvassed three options to overcome the disadvantages faced by defendants with an intellectual disability:
give judges greater control over cross examination; or
reintroduce the unsworn statement for people with an intellectual disability as one of several classes of vulnerable defendants; or
allow defendants with an intellectual disability to make a statement to the court that is not subject to cross examination.
Giving judges greater control over cross examination
7.23 As discussed above,51 the Evidence Act 1995 (NSW) gives the court control over the
questioning of witnesses and the power to disallow “improper” questions and leading questions in some circumstances. These powers, if exercised appropriately, will help overcome some of the problems faced by a witness with an intellectual disability. They will not, however, avoid them all. Of the three options canvassed in DP 35, the Office of the Director of Public Prosecutions (“DPP”) favoured giving courts greater control over cross examination to enable witnesses to give their evidence in the usual manner. The DPP also stated that an appropriate balance between protecting the defendant’s rights and ensuring witnesses are not disadvantaged requires education programs. It noted a New Zealand initiative for vulnerable witnesses which provides that the court is bound by the findings of a court- appointed panel of experts. The panel gives guidance on appropriate forms of questioning and language in each case.52
Making a statement that is not subject to cross examination
7.24 Two of the options discussed in DP 35 would allow a defendant with an intellectual disability to make a statement to the court that is not subject to cross examination, namely: reintroducing the unsworn statement for vulnerable defendants, including defendants with an intellectual disability; or allowing defendants with an intellectual disability to make a statement to the court that is not subject to cross examination. There are difficulties with both of these. The former goes beyond the terms of this reference and would involve creating an exception to a recent, if somewhat controversial, amendment to the law. The latter is clearly within the terms of reference but would involve treating defendants with an intellectual disability as a distinct class of defendants. In DP 35, the Commission supported the latter proposal.
7.25 Until 1994,53 a defendant in New South Wales could give evidence by making an unsworn (or “dock”) statement which was not subject to cross examination by the prosecution. This protected the defendant from hostile or unfair cross examination. It also allowed the defendant to tell the court his or her version of the event in his or her own words, without taking the risk that gaps and inconsistencies at
best (and lies at worst) in the story would be exposed by the prosecution in cross examination. Since the Evidence Act 1995 (NSW) came into operation there is no practical difference between sworn and unsworn evidence. The issue is whether vulnerable defendants, including defendants with an intellectual disability, should have the right to make a statement that is not subject to cross examination.
7.26 The Commission received a mixed response to its proposal to allow defendants with an intellectual disability to make a statement not subject to cross examination. The Victims Advisory Council was “implacably opposed” to it, saying that all victims (as witnesses) are subject to cross examination and all defendants should be too.54 Some submissions strongly supported the proposal.55 For example, the Law Society of New South Wales said:
It is totally unfair for persons of limited intellectual ability ... to be subject to cross- examination by highly trained counsel.56
Other submissions gave qualified support. For example, IDRS supported the introduction of a modified dock statement with safeguards as to length and content. This would ensure that important evidence could be introduced and that the defendant could speak without being subject to cross examination.57 The Commission’s view
7.27 In its earlier Report, Unsworn Statements of Accused Persons,58 the Commission recommended that the unsworn statement should be retained. One of the reasons for doing so was that it gave less articulate defendants an opportunity to respond to the evidence against them that they might otherwise not have because of their incapacity to cope with cross examination. Cross examination tests not only the truthfulness of a witness’s evidence but also his or her capacity to understand legal language that is not always clear, abstract concepts, subtle nuances and, as often as not, sentences that are long, complicated and convoluted. It is an intimidating experience for all defendants and pits an often inarticulate and uneducated defendant against a highly skilled lawyer. The fear that the defendant will not perform well in the witness box (whether or not his or her evidence is truthful) is a common reason for a defence lawyer to advise a defendant not to give evidence (or, before the abolition of the unsworn statement, to give unsworn evidence). This may prejudice the defendant in the eyes of a jury who may think that the defendant has something to hide. If the defendant is being tried for an indictable offence with another defendant who gives evidence (the “co-defendant”), the co-defendant can comment on the defendant’s failure to give evidence, including suggesting the defendant is, or believes he or she is, guilty of the offence.59 Abolition of the unsworn statement has limited the use of evidence of the defendant’s intellectual disability in challenging confessional evidence or in testing whether the
defendant’s disability makes various defences available. Before abolition, the defendant could adopt the medical history he or she had told a psychologist or psychiatrist by stating, in the unsworn statement, that what he or she had said to the expert was true. That history may have been the result of
painstaking and highly expert interviewing techniques by the appropriate specialist, quite possibly over a number of occasions. Where properly done, this might well enhance accuracy. The witness box is scarcely a comparable environment. Yet the defendant must enter the witness box and subject himself or herself to cross examination.60
7.28 As discussed above, witnesses with an intellectual disability have some protection from the rigours of cross examination. The court has the power to disallow an “improper” question and, in some circumstances, a leading question in cross examination put to a witness with an intellectual disability.61 In the Commission’s view, a defendant with an intellectual disability should also be permitted to make a statement not subject to cross examination. The court should, however, have the power to limit its content and length. In Chapter 3 of this Report, the Commission has recommended the reintroduction of a statutory definition of “intellectual disability” which would apply to the Evidence Act 1995 (NSW), namely:
“Intellectual disability” means a significantly below average intellectual functioning, existing concurrently with two or more deficits in adaptive behaviour.
7.29 In the Commission’s view, a defendant whose intellectual disability fits within this definition may well be deprived of a fair trial unless there is a limited right to make a short statement to the court that is not subject to cross examination, if he or she wishes to do so. This is a case where special measures are necessary to overcome the severe disadvantages faced by defendants with an intellectual disability. The court would have to be satisfied, on the balance of probabilities, that the defendant has an
intellectual disability as defined. This would be established in a particular case on the basis of expert evidence. The court would also have the power to give directions about the length, subject matter and scope of the statement. It could vet the statement and, by direction, exclude material which, in its opinion, was irrelevant or vexatious, would make the statement too long, or would constitute an
unjustified attack on the character or credit of a witness.62 It follows that the statement would have to be reduced to writing before its delivery.
Recommendation 31: Expert evidence about reliability of evidence