Jackson v The King

The applicant, William Henry Jackson, was convicted of larceny in the Supreme Court of New South Wales. At his trial, Jackson made a statement not on oath, as permitted by section 405 of the Crimes Act 1900 (NSW), but refrained from giving evidence on oath. The trial judge, in summing up to the jury, remarked that the unsworn statement was to be considered but was not evidence in the same sense as sworn testimony and was not subject to cross-examination. Jackson appealed his conviction to the Full Court of the Supreme Court of New South Wales, which dismissed the appeal. He then sought special leave to appeal to the High Court.

The central legal issue before the High Court was whether the trial judge's comments regarding the unsworn statement constituted an unlawful comment upon the fact that the accused had refrained from giving evidence on oath, contrary to section 407(2) of the Crimes Act 1900 (NSW). Section 407(2) expressly prohibits any comment at trial on an accused person's decision not to give evidence on oath. The applicant argued that by highlighting the limitations of the unsworn statement, particularly its lack of cross-examination, the judge effectively drew the jury's attention to the accused's failure to give sworn evidence.

The High Court, in refusing special leave to appeal, held that the judge's remarks did not contravene section 407(2). The Court reasoned that the judge's statement was a factual and legal explanation of the nature and weight of an unsworn statement compared to sworn evidence, rather than a comment on the accused's choice not to testify on oath. The distinction was that the judge was explaining the legal status of the statement made, not commenting on the absence of sworn testimony. The Court found no ground to disturb the decision of the Full Court.