Criminal Law and Procedure - Jurisdiction practice and procedure - Means by which accused brought to trial - Committal for trial by justice or coroner - Powers and duties of magistrate or coroner - Other matters - Whether statement of defendant may be received. Justices Act 1959, ss56A and 62. Criminal Code, s371(h).

ZEEMAN J At the conclusion of the Crown case, counsel for the accused indicated that he desired that there be put in a statement made by his client at the time of his committal for trial. The statement is a statement in writing signed by the accused which was tendered by him immediately before his committal for trial and received by the committing magistrate who had it marked as an exhibit. Counsel for the accused told me that he relied upon the Criminal Code ("the Code"), s371(h) which provides as follows:

"371 - The following rules shall apply to the proceedings

upon the trial of an indictment : -

...

(h) a statement made by any accused person at the time of

his committal for trial shall be put in, if the Crown or the

accused person so desires, at the close of the evidence for

the prosecution;"

2. Counsel for the Crown objected to the statement being put in. After hearing argument, I ruled that the statement was not receivable under s371(h) and indicated that I would publish my reasons later. I now give my reasons for so ruling.

3. The parties were agreed as to the relevant facts. The accused was charged on a complaint made on 16 March 1994. He first appeared before a magistrate on that day. Thereafter the proceedings were adjourned from time to time. On 16 June 1994 the accused again appeared before a magistrate and then informed the magistrate that he did not dispute the making of an order for committal but that he required that the depositions of a number of witnesses be taken before he was committed. That course was one authorised by the Justices Act 1959 ("the Act"), s56A(6)(b). The accused next appeared before a magistrate on 20 July 1994 when he indicated that he no longer required that the depositions of any witnesses be taken, as was his entitlement pursuant to s56A(6)(c). The effect of the Act, s62 is that thereupon the magistrate was required to order that the accused be committed for trial. In fact he was not then committed for trial and the matter was adjourned until 11 August 1994 when it appears that the magistrate heard submissions from counsel for the accused as to whether or not he was entitled to tender a statement containing matters relevant to the crime with which he stood charged, which statement was exculpatory in nature. On 6 September 1994 the magistrate ruled that the accused should be permitted to tender such a statement. It was then received as an exhibit and the accused was committed for trial.

4. It was the statement so received which counsel for the accused submitted ought to be put in pursuant to the Code, s371(h). The content of the statement is such that prior to the enactment of the Evidence Amendment (Unsworn Statements) Act 1993 it might have been tendered as part of the defence case as an unsworn statement in accordance with the Code, s371(f), as it stood before it was amended by that Act. Counsel for the accused submitted that s371(h) confers upon an accused person the right to make such a statement at the time of his committal for trial and, if he made such a statement at that time, the right to have it placed before the jury at the close of the Crown case. He further submitted that, if such a statement is put in, the jury is entitled to give it the same weight as formerly a jury was entitled give to an unsworn statement. If those submissions are right, then substantially Parliament has not managed to achieve its expressed intention of abolishing the right to make an unsworn statement.

5. In order to consider the submissions made for the accused it is necessary to consider how committal proceedings evolved. The subject is dealt with in some detail in Holdsworth A History of English Law (7th edn), Vol 1 at 294-297. Another useful source of information is Frohlich Committal Procedures in England and Australia (1975) 49 ALJ 561. In England, the earliest instances of forms of preliminary inquiry into crimes with a view to subsequent proceedings are to be found in the 12th Century when grand juries were created and there was conferred upon them the task of bringing to the notice of the judges suspected criminals within their territories. At the same time the duty to pursue and apprehend criminals when the hue and cry was raised was imposed on all free men. The sheriff and the constables had particular obligations in this regard. In the 14th Century these duties devolved upon justices of the peace. They carried out preliminary inquiries into crimes and had the power to commit an accused person for trial and to discharge such a person.

6. In the mid 16th Century the nature of the duties of justices of the peace was provided for by two statutes, 1 and 2 Philip and Mary c13; 2 and 3 Philip and Mary c10. The former statute required, when a prisoner was brought before justices of the peace, that they "take the examination of the ... prisoner and information of them that bring him" and put into writing the evidence against the prisoner before he was admitted to bail. The latter statute extended the duty to all cases where a prisoner was brought before justices of the peace, regardless of whether they admitted him to bail. There was no requirement that the examination of the witnesses for the prosecution occur in the presence of the accused. The accused had no right to cross-examine those witnesses or to know the case of the prosecution prior to trial. The function of the justices of the peace was to act as inquisitorial investigators of crime and the functions which they carried out were purely administrative. In the 17th century justices of the peace closely examined prisoners who were brought before them.

7. In 1821 Sir Robert Peel was instrumental in establishing the first professional police force in England. In due course the former duty to investigate, pursue and arrest accused persons was taken over in its entirety by such forces and the nature of the preliminary proceedings before justices of the peace was altered, largely by the provisions of the Indictable Offences Act 1848. Section 17 of that Act compelled justices of the peace "to take the Statement ... on Oath or Affirmation of those who shall know the facts and circumstances of the Case" in the presence of the accused before he could be committed for trial or admitted to bail for an indictable offence. The accused was given the right to cross-examine witnesses for the prosecution.

"Section XVIII ...The Justice of the Peace or One of the

Justices by or before whom such Examination shall have been

so completed as aforesaid shall, without requiring the

Attendance of the Witnesses, read or cause to be read to the

Accused the Depositions taken against him, and shall say to

him these Words, or Words to the like Effect: 'Having heard

the Evidence, do you wish to say anything in answer to the

Charge? You are not obliged to say anything unless you

desire to do so, but whatever you say will be taken down in

Writing, and may be given in Evidence against you upon your

Trial'; and whatever the Prisoner shall then say in answer

thereto shall be taken down in writing ... and read over to

him and shall be signed by the said Justice or Justices and

kept with the Depositions of the Witnesses, and shall be

transmitted with them as hereinafter mentioned; Provided

always, that the said Justice or Justices before such

accused Person shall make any Statement shall state to him,

and give him clearly to understand, that he has nothing to

hope from any Promise of Favour, and nothing to fear from

any Threat which may have been holden out to him to induce

him to make any Admission or Confession of his Guilt, but

that whatever he shall then say may be given in Evidence

against him upon his trial, notwithstanding such Promise of

Threat: Provided nevertheless, that nothing herein enacted

or contained shall prevent the Prosecutor in any Case from

giving in Evidence any Admission or Confession or other

Statement of the Person accused or charged, made at any

Time, which by Law would be admissible as Evidence against

such Person."

9. Relevant provisions of the English Indictable Offences Act 1848 were adopted in Tasmania by the Magistrates Criminal Procedure Act 1855, s12 of which in substance reproduced s17 of the former Act. It must be remembered that an accused person could not then give evidence in his own defence. That common law disability was confirmed in Tasmania by the Evidence Act 1853, s3 and was removed, as to summary proceedings, by the Evidence Act 1888, s1 and, as to proceedings upon indictment, by the Evidence Act 1910, s85.

10. The Magistrates Criminal Procedure Act was repealed by the Justices Procedure Act 1919 which contained the following sections:

"76 After the examination of all the witnesses on the part

of the prosecution is completed, the justice or One of the

justices before whom the examination has been completed

shall say to the defendant these words, or words to the like

effect: -

'Having heard the evidence, do you wish to say anything in

answer to the Charge? You are not obliged to say anything

unless you desire to do so; you are clearly to understand

that you have nothing to hope from any promise of favour and

nothing to fear from any threat which may have been held out

to you to induce you to make any admission or confession of

your guilt; but that whatever you now say will be taken

down in writing, and may be given in evidence against you

upon your trial, notwithstanding such promise or threat.'

And whatever the defendant shall then say in answer thereto

shall be taken down in writing and read to him, and shall be

signed by the justices, and by the defendant, if he so

desires, and shall be kept with the depositions of the

witnesses, and shall be transmitted with them to the proper

officer as hereinafter provided.

Provided that if all or any of the depositions of the

witnesses have been previously read in the hearing of the

defendant, either at one time or at several times, it shall

not be necessary to read them again to the defendant, unless

he desires that they be again read to him.

77 Afterwards, upon the trial of the defendant, any such

statement made by him may, if necessary, be given in

evidence against him without further proof thereof, if the

same purports to be signed by the justice or justices by or

before whom it purports to have been taken, unless it is

proved that it was not in fact signed by the justice or

justices by whom it purports to be signed."

11. Those sections were in force when the Code, including s371(h) thereof, was enacted and it is quite clear that s371(h) was concerned with statements made by an accused person in answer to the invitation conveyed by the form of words prescribed by s76. At common law such a statement was only evidence against the accused and it was for the Crown whether to put it in at trial; what an accused person said before the committing justices was not evidence unless the Crown made it so (see Kenny's Outlines of Criminal Law (19th edn), par702, note 3). Section 371(h) also conferred upon an accused person the right to require that the statement be put in, but it remained part of the Crown case.

12. Once such a statement was put in, whether at the instance of the Crown or the accused, it was part of the Crown case and was evidence. The significance which was attached to such a statement appears from R v Higgins (1829) 3 C and P 603[1829] EngR 425; , 172 ER 564 where the prisoner, who was charged with larceny, had told the committing magistrate that "the cloth was honestly bought and paid for". In directing the jury, Parke B said (C and P at 604, ER at 565):

"What a prisoner says is not evidence, unless the prosecutor

chooses to make it so, by using it as part of his case

against the prisoner; however, if the prosecutor makes the

prisoner's declaration evidence, it then becomes evidence

for the prisoner, as well as against him; but still, like

all evidence given in any case, it is for you to say whether

you believe it."

13. As such a statement was regarded as being capable of having an exculpatory effect, it is perhaps not surprising that the draftsman of the Code considered it appropriate to confer upon an accused person the right to require that the Crown put it in as part of its case. A useful discussion of the relevance of exculpatory statements made by accused persons to those investigating crimes appears in the judgment of Lee J in R v Williamson (1972) 2 NSWLR 281 at 295-296.

14. Sections 76 and 77, and their predecessor provisions, sought to achieve the following purposes:

1 To negate the effect on the mind of the defendant of any

threat or inducement previously made or held out to him.

2 To ensure that no form of threat or inducement was made or

held out by the justices.

3 To make admissible any statement then made by the

defendant notwithstanding that there had been some earlier

threat or inducement.

15. The need for such provisions appears from some of the old authorities which were concerned with reconciling the nature of a preliminary inquiry, which included an examination of the prisoner, with the concept that a confession made as the result of some threat or inducement was inadmissible. By way of example, I refer to R v Cooper (1833) 5 C and P 536[1833] EngR 447; , 172 ER 1087. In that case the prosecution proposed to prove on the trial of the accused that he had confessed his guilt to the turnkey of Reading gaol. That confession had been made subsequent to the committing magistrate having told the accused that if he would make a disclosure he, the committing magistrate, would do all that he could for him. The turnkey did not hold out any inducement or make any threat to the accused but had not given him any caution not to confess. Parke J held that the evidence ought not to be received, apparently upon the basis that the committing magistrate had held out an inducement to the accused to confess.

16. The Justices Act 1959, which replaced the 1919 Act, did not re-enact the former ss76 and 77 but similar provisions were contained in rules made under that Act, the Justices Rules 1961, rr36 and 37. Until 1963 committal proceedings were required whenever a defendant pleaded not guilty to a crime which was required to be dealt with on indictment. The Justices Act 1963 modified that position by inserting into the Act s56A. That section enabled a defendant to waive committal proceedings and to be committed for trial forthwith.

17. The position was further modified by the Justices Act 1974 which inter alia amended s56A so as to permit a defendant to choose one of three courses: to be committed for trial without any depositions of witnesses being taken; to require that depositions of one or more witnesses be taken without disputing the making of an order for committal; or disputing the making of an order for committal. Only if the defendant elected the last of these three options would normal committal proceedings follow. That remains the position. On the commencement of the 1974 Act, the Justices Rules 1976 also commenced. Those rules repealed the 1961 Rules and did not contain any provision to the effect of the former rr36 and 37.

18. The Act, s56A(6) in its present form is as follows:

"(6) If the defendant pleads not guilty or cause to show,

the defendant shall be asked to choose one of the following

courses:-

(a) that the defendant requires the depositions of witnesses

to be taken before a justice and proposes to dispute that an

order for committal be made;

(b) that, while not disputing that an order for committal be

made, the defendant requires the depositions of one or more

witnesses to be taken before a justice before the order for

committal is made;

(c) that the defendant does not require any depositions of

witnesses to be taken before a justice."

19. Also of relevance is s56A(6A) which provides as follows:

"(6A) For the purposes of subsection (6), the taking of a

deposition of a witness means -

(a) the examination of the witness before a justice;

(b) the reduction to writing or recording, by mechanical

means on to tapes or other apparatus as may be directed by

the justice, of the statement made by the witness as a

result of that examination; and

(c) the signature of that statement by the witness when it

is reduced to writing or, where the statement of the witness

is recorded by mechanical means on to tapes or other

apparatus, the certification of the transcript of the

recording."

20. The committal of a defendant is governed by s62 which is in the following terms:

"62 - Where a defendant has pleaded not guilty or cause to

show and -

(a) has disputed that an order for committal be made, but

the evidence, in the opinion of a justice, is sufficient to

put the defendant on trial for an indictable offence; or

(b) has not disputed that an order for committal be made,

but has required the depositions of one or more witnesses to

be taken before a justice and those depositions have been

taken; or

(c) the defendant has not required any depositions of

witnesses to be taken before a justice -

the justice shall order the defendant to be committed for

trial in the Supreme Court on a day during the next criminal

sitting of that court, and in the meantime shall -

(d) by warrant, remand the defendant in custody, to be

safely kept so remanded until he or she is delivered in due

course of law; or

(e) admit the defendant to bail."

21. When a defendant appears before a justice in respect of an indictable offence the functions to be performed by the justice are defined by these provisions of the Act. If no depositions are required the defendant is to be committed for trial and there is no occasion for any other form of proceedings before the justice. If depositions are required then the depositions of the witnesses to be examined are to be taken in accordance with s56A(6) and, if the making of a committal order is disputed, the justice is to determine that question in accordance with s62(a).

22. It is unnecessary to express any view as to whether it is open to a defendant, at least in the case of a disputed committal, to give evidence himself or to call witnesses. If that is permissible, the evidence is to be given by way of an examination of the witness, as required by s56A(6A), and that examination is to be on oath or affirmation (see the Act, s39). There is no warrant for the suggestion that some form of unsworn statement may be made or tendered. Formerly such form of statement was permitted because it was expressly provided for by statute or rule. Such a statement is no longer provided for. Even earlier the examination of the prisoner formed part of the preliminary investigation conducted by justices of the peace. Such form of examination has long been obsolete and forms no part of modern committal proceedings.

23. The reasoning which led Cosgrove J to conclude, in Munnings v Barrett [1987] TASSC 8; (1987) Tas R 80, that there is no right to make an unsworn statement in summary proceedings is of equal application to committal proceedings. I observe that a conclusion similar to that reached by Cosgrove J was reached by the Full Court of the Supreme Court of Western Australia in Jennings v Robertson (1976) WAR 43, which apparently was not cited to his Honour.

24. I do not consider that s371(h) confers upon an accused person any right to make any form of statement upon being committed for trial. Section 371 is concerned with the rules of procedure applying to proceedings upon the trial of an indictment. Section 371(h) permits a statement made by an accused person at the time of his committal for trial to be put in as thereby provided for only if that statement was made in accordance with the law governing committal proceedings.

25. The effect of changes to the law governing committal proceedings is that an accused person no longer has the right to make such a statement at committal. A fortiori there is no such right where the defendant does not require that any depositions of witnesses be taken and therefore has not disputed that an order for committal be made. In such a case there is no occasion for any inquiry into the facts. The very nature of the form of statement formerly permitted was that it was one which was permitted to be made in answer to the charge "having heard the evidence". In a case such as the present there was no evidence to be heard.

26. Section 371(h) has no present operative effect, at least as to any committal for trial which occurred on or after the commencement of the Justices Rules 1976. The committing magistrate had no jurisdiction to receive the statement tendered by the accused upon his committal. It is for these reasons that I declined to accede to the application made by the accused.