EVIDENCE (DISCREDITABLE CONDUCT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 11 September 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:55): I rise to speak on the Evidence (Discreditable Conduct) Amendment Bill 2013. Members might recall that the Evidence (Discreditable Conduct) Amendment Act 2011 came into operation on 1 June 2012. The act itself made some important changes to the admission and use of evidence of bad character in criminal proceedings and that new act of 2011 was designed and intended to clarify and refine what has long proved to be a complex and confusing area of criminal law.

I think it is fair to say that the Attorney-General's contribution to the debate suggesting that the legislative reform in this area was, to describe him, an elegant development of the reform in this area was, on reflection, somewhat simplistic because clearly we are back here today because problems have arisen.

It is acknowledged that this has become a very complex and confusing area of the law and therefore it is not unreasonable that, even with the most careful deliberation, some problems may come to light. Unlike other circumstances where the Attorney-General might have hurriedly rushed into something or there was a knee-jerk reaction to a public outcry on something and it was hastily brought into place, ill-prepared to deal with the matter, in this instance the opposition recognises that this is not easily resolved.

It is also fair to say that consistent with what was canvassed in the debates for the 2011 act, I think there has been a general shift in the expectation, that we have moved from being extremely wary of allowing the introduction of evidence that falls into this category, whether we call it discreditable conduct or, of course, evidence of bad character. There has generally been a common law protection against juries having access to this information which might contaminate the ultimate conclusion of a fair trial for the accused in particular.

I think the general sentiment of expectation is that justice in the outcome of criminal proceedings is not exclusively a matter of protection of the accused and there are certain societal expectations that have developed and advanced what culminated in that legislation. The problem has been that the mechanics of implementing that reform by—if I can very much paraphrase it—lowering the threshold of admission allows for an expansion of opportunity of conduct to be before the court, and frequently in the view of a jury, but with some protections. One of the manifestations of implementation has been that it is reasonable then to give notice, in this particular instance written notice, of when it is going to be presented.

The complication, as we are informed and understand it on the contribution of the Attorney-General and also Mr Martin Hinton SC who advises and represents our government, has been that—and again, if I try and simplify this—a particular approach to the admission and disclosure obligations was drawn from the commonwealth regime, and that does not sit neatly with the processes and procedures that operate under South Australian law. As a consequence, I think the practical outcome has now been considered I think now in two cases, and ultimately the unreasonable obligation of providing written notice in so many circumstances is such that it is just simply impractical, and the DPP, I think, has put his hand up for some relief. So I hope I have not misunderstood that.

The disappointing aspect of this bill, however, is not that it has come back to the parliament to seek relief and seek to be reformed, it is that, having been presented with a reduction in the circumstances in which a written notice is given, at the last minute the indication is that it is the government's intention to advance a no-notice-at-all approach. It is disappointing because the opposition received one bill, had a briefing on it, and understood that that is where we were going. The briefing was not only from advisers of the minister but also, significantly, from Mr Hinton, at that high level, to provide advice. But then we find that there is a moving of the goal posts.

It is of concern to the opposition that as best as possible we try and make this law right and, as I say, lower the threshold and have the protections that go with it. But we are now about to be asked to throw out the notice process altogether. This is the notice of intent to introduce that evidence, or apply to introduce that evidence, and it gives the opposition no time really to get advice, again, from senior counsel but also of course from learned bodies such as The Law Society, the Bar Association and defence counsel in criminal cases, for example, who are represented in each of those organisations.

This is significant change to the law. It is one that we have supported the direction of but with protections, and I think the removal of a notice altogether does need to be carefully considered. It is disappointing but, nevertheless, it not our intention in any way to hold up the passage of this legislation in this house, with the qualification that, between houses, we will consider any responses we have. It may be that we need to have some further consultation with Mr Hinton and/or other advisers that the government might make available. But it does seem to me that we really need to look at this issue again.

On this side of the house we do not think it is necessarily as simple as taking out the written notice process altogether, unless there is going to be some consideration at least of the opening up or the lowering of the thresholds for accessibility. I do not know yet how that is going to play out or how it is going to apply, but we will certainly need some advice on it and to consider it. I think I am right in saying that, even to legally trained people, this is a complex area of the law.

I can remember in the halcyon days as a law student when you learned about cases like the Emily Perry case and similar fact evidence, and whether she had in fact poisoned previous husbands and the like and, in her murder trial, there was very substantial amount of debate as to the admissibility of circumstances surrounding the demise of her former husbands. A most interesting case because, of course, the victim of attempted murder in that case was refusing to give evidence to the prosecution. As I recall, he still loved his wife and could not possibly accept that she would be trying to kill him.

However, there are circumstances where that is important. Perhaps it is a little easier when you look at the extreme end of these cases, but when you come to look at propensity or similar fact evidence in a number of other cases it is more difficult. There is that balancing act that needs to be maintained. At least, if we are going to lower one threshold, we need to ensure that there are certain protections.

It was brought to my attention by the Hon. Stephen Wade of another place that there is already an academic paper out examining South Australia's new approach to the use of bad character evidence in criminal proceedings, which is by David Plater, Lucy Line and Rhiannon Davies. It must be only recently published, but it does give a thorough examination of the legislation.

It appears to at least alert the reader to possible problems that could come in its application, even though, as I have said, the 2011 act was passed with a reasonable and certainly hopeful expectation that it would provide some clarity to this complex area. It seems that the circumstances that have prevailed since, culminating in two recent decisions that were brought to our attention, have proved that to be wrong.

There is no reflection on the government for coming back to fix this up. It is a little concerning that we have had mixed messages as to how that should be dealt with and the removal of notices altogether. In the circumstances, reform is something we will need to look at further. We will do so, and we would seek the cooperation of the government if it wishes to have this expedited.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:06): I thank the honourable member for Bragg for her contribution. I will also be very brief about this matter. I will explain a few points about exactly what we are on about. This bill proposes to bring South Australia in line with the Uniform Evidence Act jurisdictions.

It provides that written notice will be required only when a party in a criminal case intends to lead evidence of discreditable conduct to establish a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue, otherwise known, as the member for Bragg referred to, as similar fact evidence. That is one quite discrete class of evidence. However, after further discussions with the Solicitor-General, I have come to the view that a requirement for written notice, even in limited circumstances, is not necessary.

The amendment removes entirely the need for notice to be given where a party seeks to lead evidence of discreditable conduct. This will not undermine a defendant's right to a fair trial. The court will still, as with any other type of evidence, have to be satisfied of the relevance and admissibility of the discreditable conduct evidence before a party will be able to lead such evidence. The opposition has signalled so far its preparedness to support the bill at this stage, and I appreciate that. I also hope that in due course, after we have had further opportunity to speak, the bill in its amended form will also be supported.

I will make a couple of further very brief points. The original amendment that was filed and, indeed, the second amendment, which we have more recently foreshadowed, do not affect the test of admissibility. They do not impact on the question of admissibility. They simply impact on whether a procedural step, namely, the provision of written notice, needs to be gone through before the issue of admissibility of particular evidence can be put before the court, but it in no way tests or changes the threshold of the admissibility of that evidence.

I gather, from what the honourable member for Bragg has said, that the general character evidence that was caught up in this notice provision requirement—unintentionally, I might add—is not something about which the opposition has any quibble.

So the only question the opposition, as I understand it, is wishing to be satisfied about is that relatively small remnant being the similar fact evidence and what impact this has on that. My answer to that is that the impact is procedural, not substantive. The judge still has to apply the same test, as set out in the section, when the judge is determining whether to admit or not to admit the evidence. The only difference is whether or not a formal written notice in compliance with the existing legislation needs to be provided to the defence counsel prior to that occurring.

When the DPP first raised this with me—and the member for Bragg might be interested in this—he said, 'These notices are bedevilling the DPP. Every time we even want to call somebody to say that this fellow is a ratbag, we have to fill in these endless notices, and they are achieving nothing.' I thought we would go ahead and reform the process. The DPP said, 'Quite frankly, none of these things are really useful, but I could understand it if you were a little more reluctant in the case of what is properly described as similar fact evidence, not because there is any real difference but because it is relatively unusual.' At that stage I gave instructions for the preparation of the legislation—and, indeed, the original bill does not include the similar fact evidence in its purview for that reason.

However, as recently as a few weeks ago, I was advised by the Solicitor-General that recent decisions of the courts have suggested that the courts themselves do not regard these notices as being of any substantial value. In other words, whether or not a party does comply with the current notice provisions by judicial interpretation is being regarded as not relevant to the judicial requirement of determining admissibility. In other words, there is no down side for not putting in one of these notices. It doesn't affect the judge's role at all. When it was explained to me that that applies across the board, I then said to the Solicitor-General, 'If these have no clout anyway and all people are doing is filling them in—

Ms Chapman: Except to advise the defence counsel.

The Hon. J.R. RAU: Yes, but there might be a broader disclosure issue which is a slightly different issue. It was on that advice that these things served no practical purpose and had no impact in terms of the admissibility if the evidence was brought forward in contravention of the requirement to provide the notice.

It was in light of that recent advice that I thought that if they are not doing anything, why do we create this artificial distinction between one group of things which we all agree are doing nothing and we are prepared to get rid of and another group of things which we know are doing nothing but we want to keep anyway even though they are doing nothing? That is the reasoning, that is why it came relatively late because I can assure the honourable member that it was relatively recently (in recent weeks) that the Solicitor-General shared with me information about recent court interpretation of these provisions which led him to the view that these notices across the board are of no substantial significance.

I am happy to arrange briefings in the interim. My intention presently is that I will move it in the amended form. The whole intention about this was to dispense with unnecessary process which was occupying time with the DPP. If it is serving no purpose, why make them do it? I will move it in the amended form. I understand what the honourable member is saying and I issue the invitation between houses. I am very happy to arrange for the member for Bragg and the Hon. Mr Wade in another place to be provided with whatever further briefings or discussions they consider to be helpful. I will move it in the amended form and I am happy to offer those briefings.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. J.R. RAU: I move:

Amendment No 1 [AG–1]—

Page 2, lines 11 to 13—Delete lines 11 to 13 (inclusive) and substitute:

Section 34P(4) and (5)—delete subsections (4) and (5)

The case to which I was referring I am advised is called R v C, G, reference 2013 SASCFC, page 83. There was an interpretation in that which did not follow earlier comments made by Justice White in R v C, which was reported in 2013 SASCFC, page 44.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:16): I move:

That this bill be now read a third time.

Bill read a third time and passed.