EVIDENCE (DISCREDITABLE CONDUCT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 7 April 2011.)

Ms CHAPMAN (Bragg) (17:21): I rise to speak on behalf of the opposition on the Evidence (Discreditable Conduct) Amendment Bill 2011, and again indicate the opposition will be supporting this bill.

At the 2010 election the Labor Party, via the Premier, announced and promised that it would amend the Evidence Act 1929 to 'codify and improve the law as it deals with similar fact evidence, propensity evidence and evidence of uncharged acts'. That was what was repeated in its serious crime policy of 2010. A media release on 7 March 2010, entitled 'Labor crime policy targets serious offenders', reads in part:

Premier Mike Rann, in releasing Labor’s Serious Crime Policy says that as part of the raft of reforms, the Government will overturn the notion that juries are not entitled to hear details of an offenders’ past, prior to conviction.

Further:

A re-elected Rann Labor Government will change the law to allow juries in appropriate cases to hear evidence of relevant prior criminal behaviour and offending by the accused.

It went on:

This Government wants to simplify and improve this confusing and controversial area of criminal law.

In the Sunday Mail of 2 May 2010, the new and current Attorney-General suggested that it would be beneficial for the law of propensity evidence to be codified, as over the past 20 years it had become quite confusing and complex.

On 2 August 2010 the Attorney-General put out a press release announcing consultation amongst the legal stakeholders on the bill while restating, and almost quoting, elements of the Premier's March release. However, the Attorney-General's release read:

The draft bill does not represent a dramatic ‘shifting of the goalposts’. Rather it is an overdue effort at clarification of a notoriously difficult area of the law.

There are always occasions in parliaments where announcements are made, promises are proffered, and commitments are tabled by aspirants to office which are sometimes very good and sometimes absolutely absurd. I think this is one which, at the time of being announced by the Premier and I believe the then attorney-general (I am not sure whether or not he was present at the time of the serious crime policy launch), not surprisingly attracted considerable concern, mostly from the legal fraternity, which has the responsibility of representing people in the criminal area, where their rights or liberties might be at risk.

I think it is fair to say that, in a nutshell, the biggest area of concern was not only that a codification could further detract from providing a less confusing position on the law. Sometimes it is erroneous to assume that because you codify something you in some way simplify it and therefore it becomes less confusing and easier to implement. Often the reality is that to do so would be more dangerous and end up with something that leaves out the appropriate protections, and therefore all balance of interest, and so is not in the overall interest of either the successful prosecution of the guilty or the protection of the innocent.

In achieving that, simply to say that one is going to provide a process of codification is a concern. However, even more importantly, the biggest concern raised with me at the time was that, if there was a weakening or a lessening of the barriers against the introduction of prior conduct in the trial of an accused by the prosecution, it would open up the other side of the protections that we have and risk opening up the past of the witnesses for the prosecution.

The danger of this is most common and most vulnerable when we have, say, a victim in a rape case who is presenting his or her evidence as a victim (a prosecution witness) as to what had occurred, who had done it (if that could be identified), where it occurred and whether it was with or without consent, and the like. If the defendant was the subject of an opportunity for the prosecution to introduce evidence about his or her past, there is a rule in the evidence that puts at risk the victim in those circumstances (the prosecution witness) from having his or her past opened up.

If that occurs, that in itself can sometimes severely prejudice the successful prosecution in a case where it would be reasonable for that to occur. The classic example I think is probably the most common circumstance—for example, a victim in a rape trial is a woman who has a prior history of working in the sex industry. This is often used as an example in these cases because there is a fundamental principle here that, whatever the history of the sexual activity of a person, it does not mean that that should influence the decision of whether they were raped on a particular occasion. It is in the principal translation of that, that just because someone may have worked in the prostitution industry it does not mean that the evidence should be used in some way to stain their character, to have an influence on a trial and deny them proper justice in bringing to account the person who may have raped them.

It was this issue that sounded some alarm bells in the legal profession. I do not know whether the current Attorney has received any concerns about it, but I certainly did. Even students wrote to me—students who were fresh to the law school and who were flush with all the high principles of legal ethics, and the like, and the rules of evidence they were studying. They were emailing me to say they were very concerned at the announcement on this matter.

Nevertheless, we have ended up with something a little different to what had been espoused by the Premier. Perhaps the Premier thought it was a good idea for which he might get some kudos during an election campaign, but potentially it is dangerous in implementation if we were, in fact, to go down the route that he proposed. Ultimately, what came into the parliament was something that the opposition considers does not cross the barrier and is a fair attempt, we think, to codify the principles currently outlined in the Evidence Act, particularly those which apply to similar fact evidence. They are never easy.

I suppose the case I always think of, which is probably familiar to the Attorney, is the famous Emily Perry poison case. Mrs Perry had two husbands who had died before and a third was healthy and alive but the prosecution felt sure he was at risk and, in fact, that there had been an attempt on his life. The prior evidence of the death of her other husbands suggested that poison was the weapon. Notwithstanding that, Mr Perry protested affection, love and enduring faith in his wife. I think he was even a witness for the prosecution under protest. The case was famous for that alone, but, of course, it was also famous for the introduction of similar fact evidence which ultimately resulted in her conviction.

I will place on the record some other aspects on some of the legal matters, which I am sure are familiar to the Attorney and possibly some of the other members of the house, and on which considerable work has been done to provide some education to our own party room on this matter. I will outline the background to what we are addressing here.

In a criminal trial, propensity evidence is any evidence that attempts to show that a person is the kind of person who would commit a particular crime or act in a certain way on the basis of events in the accused's past or his or her other criminal convictions. Historically, this kind of evidence has usually been ruled as inadmissible, both at common law and, later, in criminal codes and statutes around Australia. The reason for excluding this kind of evidence is that its purpose is to prejudice a jury against the accused on the basis of past crimes or acts rather than making an independent, objective decision as to the accused's guilt of the crime under their consideration.

There are a number of cases relating to that, but decisions of the High Court recently, notably in the case of R v HML (2008), have compounded rather than lifted the confusion. It has been asserted, and I have referred to this earlier, that the common law now lacks clarity with a number of sometimes conflicting common law propositions on the issue.

The statute law varies somewhat around the country. There have been other Australian evidence acts and criminal codes that have addressed the admissibility of propensity evidence; and the evidence acts of the commonwealth, New South Wales, Queensland and Tasmania basically restate the commonwealth propensity rule.

In Victoria, the Crimes Act 1958 makes propensity evidence admissible if it is relevant to the facts in issue of a case under consideration and if the court considers that it is just to admit the evidence despite its prejudicial effect. The provision is drafted very broadly and would allow in even evidence of past crimes and orders for discreditable conduct that were in no way similar to the current offence as long as the judge thought it was relevant and just to do so.

In Western Australia, the Evidence Act 1986 makes propensity and relationship evidence admissible if the court considers the significant probative value outweighs the risk of an unfair trial and fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over risk of an unfair trial. The evidence acts of South Australia, the Northern Territory and the ACT do not deal specifically with propensity or similar fact evidence.

There have been some high profile cases in South Australia. Probably the most highly publicised case of propensity evidence was the acquittal of Frank Mercuri in 1998 for the 1993 stabbing murder of Shirree Turner at the Oaklands Park reserve. After the acquittal, it was revealed that Mercuri had previously been convicted for stabbing and attempted murder of a woman in Victoria in very similar circumstances to Ms Turner's murder.

Victims' advocates argued that this information should have been put before the jury at Mercuri's trial in South Australia. However, under South Australian propensity laws this evidence and the fact that Mercuri had been convicted on 48 prior occasions for other offences, including violent crimes with very similar facts, could not be used in his murder trial at all. Without the evidence of the prior offending, Frank Mercuri was acquitted of Shirree Turner's murder by a Supreme Court jury in 1998. After being acquitted, in 2007 he went on to kill another woman, Rosemary Deagan, before committing suicide himself.

I am sure many members have read of the pleas of Ken and Lesley Turner, Shirree's parents, in their book and in media reports of the tragic loss of their daughter, and they have spent some time advocating for change. It is also worth noting that in October 2009 the Hon. Dennis Hood introduced an Evidence (Propensity Evidence) Amendment Bill following approaches by the Turner family. He asserted that the bill used wording similar to the Victorian Crimes Act 1958 and would increase the prospect of propensity evidence being used. In any event, there can be some sad cases where we need to look at our law from time to time to be able to improve those circumstances.

This bill deals with three types of evidence of past discreditable conduct that can be presented in a criminal trial: first, propensity evidence, which I have given examples of—evidence that demonstrates the accused has a particular tendency to act in a certain criminal manner; secondly, similar fact evidence, which again I have given an example of—where evidence of multiple examples of similar conduct led to establish that the accused did a particular act; and, thirdly, evidence of uncharged acts—evidence of previous criminal or discreditable conduct for which the accused has not been charged.

We are yet to see how effective this reform will be with the addition of this part of the Evidence Act. It is fair to say, from the major features that have been outlined by the Attorney in his second reading explanation, that this bill is not a dramatic shifting of the goalposts in favour of the routine and unrestricted introduction of evidence of discreditable character. Rather, it is an overdue effort on clarification of a notoriously difficult area of the criminal law in favour of a workable and considered model.

To some degree, the jury is out—pardon the pun—on whether it will produce a workable and considered model, but we are prepared to support what is now really a clarification rather than a major shifting of the goalposts, as the Premier had offered, and we are yet to see that. If the Attorney-General becomes aware of cases in which he considers any aspect of this reform to be abused in the legal process or indeed inadequate in serving a justice outcome for any case, we hope that he would bring them to the attention of the parliament and that we would again attempt to produce a more just and equitable result. With that, I indicate that we will be supporting the bill and will not be seeking to go into committee.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (17:40): Can I close this debate by saying to the honourable member for Bragg how much I and the government appreciate the support the opposition is showing for this measure. I can understand why she ends her remarks with the caution that we need to be vigilant about these matters because, with even the best of intentions, it might be that this measure of itself does not do what we hope it might do.

In terms of legal matters of complexity, at the risk of doing something that is rather gauche—that is, quoting your own second reading explanation—there was a mention in there of Lord Palmerston, when he said:

The Schleswig-Holstein question is so complicated, only three men in Europe have ever understood it. One was Prince Albert, who is dead. The second was a German professor who became mad [thinking about it]. I am the third and I have forgotten all about it.

I am none of those, but that does give you some idea of the peculiar state of this area of the law, and it touches on the important balance between the opportunity for an accused person to stand a fair trial and face the accusations in respect of the matter they are charged with on the one hand and, on the other hand, where a person obviously has demonstrated a certain capacity or propensity to do something, whether it is fair for the triers of fact —the jury—to be denied access to that information. I hope and believe that this will be a substantial improvement and indeed I am comforted by the fact that the Joint Courts Criminal Legislation Committee concluded of the bill:

The simplicity of the bill stands in stark contrast to the present mess. We think it has merit. There is nothing in the wording which requires further comment.

Aside from again thanking the member for Bragg and the opposition for their support of this bill, I reiterate my sincere thanks in particular, though not exclusively, to the members of the Attorney-General's Department who worked on this, particularly the people in the policy and legislation area; the Solicitor-General, who put in a lot of time on this and was very helpful; and two members of the profession who I think in a tremendous spirit of assistance to this parliament devoted a considerable amount of time to this because they thought it was an important matter. I speak in particular, though not exclusively, of Mr Malcolm Blue QC and Mr Jonathan Wells QC.

I would also like to thank the Joint Courts Criminal Legislation Committee and in particular recently retired Justice Kevin Duggan, who also made a contribution to this. If it gives any comfort to the member for Bragg that this might actually be a step in the direction, if all those people have put in as much effort as they have—

Ms Chapman interjecting:

The Hon. J.R. RAU: Well anyway, all these people did. They had a lot to do with it. They put in a lot of work and a lot of time, all of which was done gratis and for the purpose of getting it right. I am very confident that if all those minds working together came up with this as a solution, which to me reads as an elegantly simple solution to this very complex problem, then I think we have reason to be positive about the way it will work in practice. With those few words, I move the second reading.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (17:44): I move:

That this bill be now read a third time.

Bill read a third time and passed.