EVIDENCE (DISCREDITABLE CONDUCT) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (20:42): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Background

As part of its Serious Crime Policy at the last election, the Government undertook to amend the Evidence Act 1929 to codify and improve the criminal law as it deals with the admission and use in criminal proceedings of evidence of past discreditable or criminal conduct of an accused. The Evidence (Discreditable Conduct) Amendment Bill 2011 deals with a complex area and applies to the three types of evidence of past discreditable conduct that can be presented in a criminal trial. They may often overlap in practice because the evidence may be capable of supporting different chains of reasoning. This type of evidence is known as 'propensity evidence', 'similar fact evidence' and 'evidence of uncharged acts'.

The present law is overly restrictive, complex and unsatisfactory in having the practical effect that cogent and reliable evidence of past misconduct is often excluded from a criminal trial. The jury may well be kept in the dark as to such highly probative evidence. The present law in this area is in need of major reform. Given the fundamental importance of this area of the law in daily practice in the criminal courts at all levels, it is crucial that the law be clear and comprehensible and capable of straightforward application. At present, the law conspicuously does not meet these simple goals. The law in this important area needs reform.

The Bill will allow prosecutors in an appropriate case to present to a criminal court similar fact evidence (that is, evidence of multiple examples of similar conduct led to establish that the accused did a particular act), propensity evidence (that is, evidence that demonstrates that an accused has a particular tendency to act in a certain criminal manner) and evidence of previous criminal or discreditable conduct for which the accused had not been charged (uncharged acts). The Bill provides that a court may allow evidence of the previous acts and/or convictions of an accused to be admitted at a criminal trial when it is in the interest of justice to do so. The Bill will simplify and improve this often confused and controversial area of the criminal law. The Bill aims to improve outcomes for victims in general and, in particular, victims of sexual offences, whilst still maintaining an appropriate balance and ensuring that the defendant's right to a fair trial is not undermined.

Ever since the original leading decision of the Privy Council in 1894 in Makin v Attorney-General (NSW) [1894] AC 57, an immense amount of judicial, legal and academic ink has been spilt in trying to satisfactorily explain and rationalise this area of the law and attempting to reconcile the countless, and often inconsistent, decisions of the courts in applying the underlying principles to the many and varied circumstances before the criminal courts whilst maintaining appropriate safeguards. Such efforts have proved somewhat fruitless and the present law with respect to the admission and use of past misconduct in criminal proceedings is, frankly, in a mess. The present law in this area is not just complex but it is incomprehensible to many involved in the criminal justice system; be they police officers, jurors, lawyers and even magistrates and judges. It can be regarded as the legal equivalent of the famed Schleswig-Holstein question that bedevilled nineteenth century European diplomacy, of which Lord Palmerston, the British Prime Minister, 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.

Recent decisions of the High Court, notably its decision in R v HML (2008) 235 CLR 334, far from solving the problems in this crucial area of criminal practice, have the potential to compound them. There continues to be much uncertainty about the admissibility and use of this type of evidence, the directions that a trial judge is required to give and the applicable standard of proof. Over recent years, the courts have considered this topic on numerous occasions. Much time has been spent by courts and law reform agencies on the subject. The number of cases of alleged sexual abuse, some dating back as far as 50 years ago, coming before the courts has increased over recent years. All indications are that this trend will continue. The present law is a confusing morass that is in need of comprehensive reform.

The Bill is the product of an extended consultation process. The Solicitor-General, officers of the Attorney-General's Department, the Bar Association and the judiciary have been closely involved in this process. I am particularly grateful for the invaluable assistance kindly and generously provided by Mr Malcolm Blue QC and Mr Jonathan Wells QC from the Bar Association, and Justice Duggan and the Joint Courts Criminal Legislation Committee, as part of that process. The final Bill meets with the approval of these parties and is an example of the benefits of a consultation process that has ultimately produced what has arguably eluded other efforts at law reform elsewhere, namely, agreement as to an effective, simplified and balanced legislative model. The Bill meets the objectives identified in the Serious Crime Policy without sacrificing appropriate safeguards. The Joint Courts Criminal Legislation Committee concludes 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.

There is a general exclusionary rule at common law that evidence of bad character or criminal conduct not related to the charge is inadmissible and cannot be used in criminal trials. This rule is not absolute but the current common law test in South Australia imposes a very high threshold for the admissibility of such evidence, at least if it is to be used for propensity or similar fact purposes. The evidence must be of such a high standard that in itself it affords no reasonable inference other than the guilt of the accused before it is admitted. This test derives from the much criticised decisions of the High Court in R v Hoch (1988) 165 CLR 292 and R v Pfennig (1995) 182 CLR 461. The result of that test is that cogent, reliable and highly relevant evidence is sometimes kept from a jury. The Bill will improve the criminal justice process by allowing prosecutors in appropriate cases to introduce evidence of prior offending when it is both relevant and appropriate and in the interests of justice to do so (for example, in cases of alleged sexual abuse where the accused has committed other sexual offences in similar circumstances and that is relevant to the current proceedings).

However, the Bill also recognises the need for an appropriate balance to be struck. It is not intended to allow the routine introduction of evidence of discreditable conduct. The 'time honoured law' of England and Australia 'that you cannot convict a man of one crime by proving that he had committed some other crime' (R v Ball [1911] AC 47 at 71 per Lord Loreburn LC) is a strong principle of the criminal law. The election commitment does not overturn or displace this principle as much as modify it in order to arrive at a fair and workable modern model. The admission of such evidence is confined to where it is relevant, appropriate and in the interests of justice to do so.

Overview

The Bill has 6 major features.

First, it is intended to clearly and unequivocally overrule the high 'no rational inference test' test of admissibility prescribed by the High Court in Pfennig.

Secondly, it confirms that the rule of the High Court in R v Hoch is clearly and unequivocally overruled not just in relation to sexual offences but generally. The mere fact that there is a reasonable possibility of collusion between the alleged victims is an issue of credibility for the jury and not an issue or ground for determining the admissibility of the evidence.

Thirdly, it is not intended to 'open the floodgates' to the unrestricted or wholesale admission of evidence of discreditable conduct, especially if it is introduced for propensity or similar fact purposes. The Bill provides criteria for the admission and use of evidence of discreditable conduct. In any case, the probative value of the evidence of discreditable conduct must substantially outweigh its prejudicial effect. If the evidence of discreditable conduct which the prosecution seeks to use relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue, then the evidence must also have 'strong probative value', having regard to the particular issue arising at trial and the circumstances of the individual case, for it to be admissible. Judges are all too alert to the risk of impermissible reasoning and are well placed to assess that risk in any given case.

Fourthly, for completeness, the Bill extends to the admissibility and use of evidence of discreditable conduct for non-propensity, or non-similar fact, purposes, such as to show the background or context to the alleged offence, the relationship between the parties, to provide evidence of motive or intention in an appropriate case, or to disprove a possible defence, such as accident, self-defence or provocation. The Bill is intended to maintain the grounds for the admissibility and use of this type of evidence to the sensible, balanced and workable model outlined by Chief Justice Doyle in R v Nieterink (2000) 76 SASR 56.

Fifthly, the Bill endorses the position, outlined in Nieterink and other cases, that, if the evidence of discreditable conduct is admitted for a specific and limited purpose, such as to establish the background or context to the alleged offences or to shed light on the relationship between the parties and not for a wider propensity or similar fact line of reasoning, then it is incumbent upon the trial judge to give the jury an explicit warning as to both the correct and incorrect uses that they can put the evidence to. The jury, in particular, must be told that they cannot use the evidence of discreditable conduct to reason that the accused was the sort of person who might commit the offences charged.

Finally, the Bill is intended to dispel the uncertainty created by some recent cases, such as HML as to the standard of proof, and to further remove any suggestion of a universal requirement that any uncharged act must be separately proved beyond reasonable doubt. Any such general requirement is both unnecessary and confusing. The Bill incorporates the view expressed by the High Court in R v Shepherd (1990) 170 CLR 573 that the uncharged act, like any species of circumstantial evidence, need only be proved beyond reasonable doubt if it might form an indispensable link in the chain of reasoning towards guilt.

Detailed Operation

Section 34O makes it clear that the Bill applies to any type of criminal trial at any level of court. The Bill will not apply to disputed facts hearings which are not governed by the rules of evidence. The Bill does not apply to civil proceedings and is not intended to alter any of the rules relating to civil trials.

Section 34O further makes it clear that the Bill prevails in the event of any inconsistency with any existing common law rule of admissibility.

The Bill uses the expression 'discreditable conduct' as opposed to 'criminal conduct'. This is deliberate. It extends to conduct that is properly regarded as morally repugnant although not necessarily criminal. Such evidence might be properly admitted and used either for a propensity or similar fact purpose or for more limited purposes as evidence of uncharged acts. The type of egregious conduct described in R v Alexander & McKenzie (2002) 6 VR 53 is an example of the type of improper but non-criminal conduct that could be caught by the expression. However, by way of comparison, in R v von Einem (1985) 38 SASR 207, the fact that the accused was a homosexual was not, in itself, conduct which would fall within the term 'discreditable conduct'.

The Bill discards the existing rigid test governing propensity and similar fact evidence derived from the decision of the High Court in R v Pfennig (1985) 182 CLR 461 in favour of the simpler and clearer position stated in the Bill. The Pfennig test requires that the evidence of discreditable conduct, at least for propensity or similar fact purposes, will only be admissible at trial where it is more probative than prejudicial to such a degree that there is no rational explanation of that evidence consistent with the innocence of the accused. This test has been heavily criticised, even before HML, as technical, complex and too restrictive. It raises the bar too high. This test has the practical effect of excluding highly reliable and probative evidence. It further effectively requires the trial judge to usurp the traditional fact finding role of the jury. In effect, the Pfennig test takes the traditional 'gatekeeper' function of the trial judge into the proper domain of the jury or other trier of fact.

Pfennig has been subjected to much academic criticism, notably, by Jonathon Clough in 1998 in an article in the Adelaide Law Review. The Pfennig test has been rejected in England and New Zealand by their respective Law Reform Commissions and in Canada in the leading decision on point of the Supreme Court in R v Handy [2002] 2 SCR 908. Pfennig has been further rejected in successive Law Reform Commission studies in Australia, at both a State and Commonwealth level, and has been rejected in every other Australian jurisdiction apart from the Northern Territory and Queensland. The Queensland Law Reform Commission has recently suggested its repeal. The Australian Law Reform Commission has recently repeated its earlier criticism of the Pfennig test.

The High Court, in Hoch, ruled that a possibility of concoction by complainants colluding in their allegations created a rational explanation consistent with innocence, therefore excluding such evidence of discreditable conduct even if similar, under the high 'no rational inference' test later confirmed in Pfennig. The Bill provides that this approach is not to be applied in South Australia generally. Matters of credibility, such as the question of any possibility of collusion between the alleged victims, are matters within the province of the jury and are not an issue for the trial judge relating to admissibility of evidence. Hoch has been widely criticised. In particular, as three leading and erudite academics on the Law of Evidence, Jill Hunter, Camille Cameron and Terese Henning, noted in 2005:

Has the High Court in Hoch failed to acknowledge the multitude of cases in which complainants are siblings, neighbours and friends? The basis for insinuating collusion in these contexts is strong. Meeting the challenge of a cross-examiner who claims collusion is no easy exercise. Hoch, if it represents a standard of safety for the fairness of children, also represents a severe disadvantage to prosecuting a serial sexual predator of children.

The approach in Hoch has previously been discarded in South Australia in relation to sexual offences and it is now thought that there is no reason why this should not be done generally.

Ever since Makin v Attorney-General in 1894 (if not earlier), the courts have resisted any diminution of 'the general principle that it is not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is likely from his criminal conduct or character to have committed the offence for which he is being tried', as observed by the High Court in Pfennig. This basic proposition has been confirmed on many occasions by the High Court (see, for example, R v Harriman (1989) 167 CLR 590). The Bill does not displace or discard this basic principle. It operates on the principle that the courts will remain faithful to this principle. The Bill is not intended to open the door to the routine admission of evidence of discreditable conduct. The Bill acknowledges that it is wrong in principle to allow the unchecked use of evidence of discreditable conduct by the prosecution, especially for propensity or similar fact purposes. The Bill recognises the difficulty of containing the effects of such information which, once dropped like poison in the juror's ear, 'swift as quicksilver it courses through the natural gates and alleys of the body' (Hamlet, Act I, Scene v, ll. 66-67). The general principle is specifically preserved in section 34P(1) which confirms that it is impermissible to use evidence of discreditable conduct to suggest that the defendant is more likely to have committed the offence charged simply because he or she engaged in other discreditable conduct. Such evidence is inadmissible if only led for that purpose (the impermissible use). Discreditable conduct evidence is evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence charged.

The basic exclusionary principle in section 34P(1) is subject, however, to the important qualification in section 34P(2) which provides that evidence of discreditable conduct may be admitted for a use (the permissible use) if, and only if, the court is satisfied that the probative value of the evidence to be admitted for a permissible use substantially outweighs any prejudicial effect that it may have on the defendant. There will be a wide range of circumstances in which the prosecution's purpose for adducing evidence of discreditable conduct may be permissible. The evidence to be admitted must be sufficiently probative and possess a degree of relevance so that the probative value of the evidence substantially outweighs any prejudicial effect that it may have. The probative value of the evidence must be assessed against its likely prejudicial effect. The trial judge must determine if there is an unacceptable risk of prejudice to the accused, so that his or her trial would be unfair if the evidence of discreditable conduct were to be admitted. In this context, prejudice does not refer to simple prejudice to the accused but, rather, the risk of an unfair trial and a wrongful conviction. Here the risk is that, despite its permitted logical use, the jury may, nevertheless, engage in impermissible reasoning despite the efforts of the trial judge. The question of admissibility may, or may not, depend on the manner in which the defence case is to be conducted.

However, the Bill does not preclude the use of evidence of discreditable conduct to suggest that a defendant is more likely to have committed an offence if the evidence relies on, or discloses, a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue. Such evidence may be admissible if led for that purpose. There will be circumstances in which the probative value of evidence of discreditable conduct is derived only from the propensity of the accused or disposition to act in a particular manner. The case of R v Straffen [1952] 2 QB 911, the famous 'brides in the bath' case (R v Smith (1915) 11 Cr App R 229), and the facts in the Makin and Pfennig cases, are examples of the type of case where this type of evidence would be properly admitted under the Bill for such reasoning. It would be artificial to attempt, as has been sought on occasion in the past, to argue that the evidence of discreditable conduct in such cases can always be properly admitted on a basis other than relying on the propensity or disposition of the accused to act in a particular way.

The Bill distinguishes between evidence of discreditable conduct that is introduced for propensity or similar fact purposes as circumstantial evidence of a fact in issue and that which is not. If the permissible use of the evidence of discreditable conduct which the prosecution seeks to use relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue, then the permissible use must, additionally, have 'strong probative value' having regard to the particular issue or issues arising at trial for the evidence to be admissible. This means that the evidence must be more than simply 'relevant' or 'material'. It must have a sufficiently strong probative value to clearly outweigh the prejudicial effect of such evidence. What will amount to strong probative value will depend on the particular circumstances of each case. The test of establishing strong probative value is not intended to be the same as under Pfennig as requiring the exclusion of any rational inference inconsistent with innocence.

A problem lies in the term 'evidence of uncharged acts'. A number of other expressions are also used to describe this type of evidence, such as 'background', 'relationship', 'context', 'narrative', 'sexual interest' or 'sexual attraction'. On occasion, this type of evidence has even been confused with, and included in, the definitions of similar fact or propensity evidence. The Bill recognises that no label is ideal.

The Bill clarifies and simplifies the current law in respect of the admissibility and use of evidence of uncharged acts for non-propensity or non-similar fact purposes by adopting the law as expressed in the South Australian decision of R v Nieterink (1996) 76 SASR 56. Nieterink was a workable and effective model that reflected many decades of established practice. This was widely taken to be the law prevailing in South Australia before the High Court's decision in HML in 2008 'muddied the water' and cast some doubt on its application.

Evidence of uncharged acts had long been used without major difficultly or objection in criminal cases at common law until relatively recent times. It was not generally viewed as a form of evidence introduced for similar fact or propensity purposes but, rather, was admissible for some other purpose. This emerges from the Chief Justice's analysis in Nieterink.

However, the introduction and use of evidence of uncharged acts has caused considerable difficultly in criminal trials over recent years. These difficulties have been exacerbated by the recent confusing judgment in 2008 of the High Court in HML. In this case, the 7 judges delivered 7 different and inconsistent judgments. It is very difficult to identify any clear and consistent statement of the law from HML. The Bill addresses this problem.

The Bill provides that, where the evidence of the uncharged acts of past discreditable conduct is adduced for a non-propensity or non-similar fact purpose, then the evidence need only be of sufficient probative value as to substantially outweigh its prejudicial effect. It need not additionally be of strong probative value. In practice, this type of evidence will most usually fall within the category of 'uncharged acts'. Evidence of 'uncharged acts' may be led in any type of criminal case and its use is not confined (as is sometimes supposed) to sexual cases. Such evidence may apply in a wide variety of different circumstances and for various purposes. Criminal charges cannot be fairly or accurately judged in a factual vacuum and, in order for the jury to make a rational assessment of the evidence directly relating to a criminal charge, it may be necessary for the jury to receive evidence, in some detail, of the context and circumstances in which the alleged offences are said to have been committed. In simple terms, evidence of uncharged acts of discreditable conduct is led where, without the evidence, it would simply be impossible to appreciate and weigh the story surrounding the alleged offence. The evidence of the uncharged acts of discreditable conduct, as the Law Commission of England in both its Consultation Paper and Report on the Use of Evidence of Bad Character helpfully noted, is so closely entwined and involved with the evidence directly relating to the facts in issue surrounding the alleged offence that it would amount to distortion to attempt to edit it out.

The potential use of evidence of uncharged acts of discreditable conduct cannot be exhaustively defined. The English Law Commission helpfully noted that there were 4 'indictors' of the type of evidence that fell within what might be termed as evidence of uncharged acts (or 'background evidence' as they described it) and was not subject to the criteria governing the admissibility of similar fact or propensity evidence.

Firstly, the evidence of discreditable conduct may be so close to time, place or circumstances to the fact or circumstances of the offence charged that it would make no sense to try and edit it. This category, the Law Commission Consultation Paper noted, was the res gestae type of evidence. The decision of the High Court in R v O'Leary (1946) 73 CLR 566 is a leading example of the use of this particular type of evidence.

Secondly, the Law Commission noted that evidence of discreditable conduct may be necessary to complete the account of the circumstances charged and to make it comprehensible to the jury. Such evidence may show the 'background' or 'context' to the charged offence, whether immediately prior to the alleged offence or going back some period in time. It might show that the alleged offence 'did not come out of the blue' and, without such evidence, the facts of the alleged offence would be incomplete or incoherent. The evidence is relevant, as was noted in Nieterink, as, without it, the jury could hardly understand the context in which the alleged offences occurred. It may explain other aspects of the case, such as why the victim might have submitted to the acts that are the subject of charge, why the victim did not complain about the alleged abuse, or why the victim acted or behaved in a certain manner.

Thirdly, the accused may have a relationship with the victim and the evidence of previous discreditable conduct may relate to the victim of the alleged offence rather than the victim of other offences. The evidence is not admissible to establish a general criminal disposition or propensity but to show the true nature of the relationship between the parties in a manner that bears directly on the guilt of the accused and/or a fact in issue. Examples of the legitimate use of evidence of uncharged acts of discreditable conduct in this context is provided in cases such as R v Garner (1963) 81 NSWWN 120, R v Hissey (1973) 6 SASR 280, R vWilson (1970) 123 CLR 334 and R v Peake (1996) 67 SASR 297. In particular, in Wilson (1970) 123 CLR 334 at 344, Menzies J persuasively reasoned:

It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence—which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue—to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.

The fourth category of uncharged acts identified by the Law Commission refers to evidence that may assist in establishing motive in an appropriate case. The oft quoted comments of general application of Lord Atkinson in R v Ball [1911] AC 47 at 68 illustrates this:

Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show that he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his 'malice aforethought', inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.

The potential significance of evidence of motivation is not confined to cases of murder.

Though not listed by the Law Commission, it is also clear that evidence of uncharged acts may also be relevant and admissible to assist in showing the requisite intention to make out an alleged offence. The English case of R v Williams (1987) 84 Cr App R 299 illustrates where the evidence of the violent history of the accused in relation to the victim was admitted to establish the intention. The accused was charged with threats to kill. The prior evidence was relevant and admissible to show that the threat had been uttered with the requisite intention, had been intended to be taken seriously by the victim and had not been said in jest or temper. The prior history showed that the accused had not been merely 'sounding off'.

The evidence of uncharged acts of discreditable conduct may be relevant in other contexts. Such evidence may rebut a potential defence, such as accident, self defence or provocation, or assist in showing the identity of the offender. It may show the accused's sexual attraction to the victim as in R v Ball. [1911] AC 47. Moreover, circumstantial evidence may be admissible although it reveals other criminal conduct. Evidence of previous crimes of the accused may be admissible because it identifies or connects the accused with the commission of the alleged offence. It extends to evidence disclosing criminal or discreditable conduct, such as evidence showing an association with the crime scene or the criminal venture or the possession of equipment which might have been used to commit the crime.

Though, in practice, evidence of uncharged acts of discreditable conduct most often arises in relation to cases of sexual abuse or homicide, the Bill is not confined to such cases. Evidence of uncharged acts under the Bill, as at common law, may apply in other types of cases, such as domestic violence, where the final violent act of the accused may result in a charge of assault or threats but at trial it is impossible to properly understand the nature and context of that final act without reference to evidence showing earlier discreditable conduct. The decision in R v Garner (1963) 81 (NSW) WN 120 illustrates this point.

The Bill makes it clear that careful consideration must be given to the purpose for which any discreditable conduct evidence is admitted. The use of evidence of uncharged acts is potentially dangerous because the notion of the relevance of uncharged acts can be rather vague and easily used to admit what otherwise would be inadmissible similar fact or propensity evidence by an extended view of what is to count as relevant as part of the 'background' or 'context' or 'relationship'. The prosecution must give reasonable notice of the purpose for which such evidence is adduced. Rules of Court will be formulated for this purpose. It will be incumbent on the prosecution to give sufficient particularity of the purpose it contends for the admission of evidence of discreditable conduct. If the evidence is adduced to show a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue, the prosecution must clearly signal that it is advanced for that purpose and describe in sufficient particularity why the evidence is properly relevant and admissible in the particular case for such a purpose. If the evidence is adduced for a non propensity or non-similar fact purpose, the prosecution must still clearly identify the specific and limited purpose for which the evidence is adduced. It is unlikely to be enough for the prosecution to simply assert, without anything further, that the evidence is relevant as part of the background, or to show the relationship between the parties. The prosecution should specify why the background or relationship is relevant and properly admissible in the particular facts and issues of the case. If the evidence of discreditable conduct is admitted for a specific and limited purpose, such as background or for placing events in their context or as part of the relationship, its use is confined under section 34Q to that purpose and it cannot be employed for wider similar fact or propensity purposes, even if it is capable of such a wider application.

The Bill, consistent with Nieterink and established judicial practice, makes it clear that, if evidence of discreditable conduct is adduced as 'uncharged acts' and not as a form of propensity or similar fact evidence, then the jury must be explicitly warned that the evidence can only be used for the limited purpose (such as showing background or context or relationship) and cannot be used for a wider propensity or similar fact mode of reasoning (even though it may be capable of such a use). The directions required by the Bill should be simpler and more straightforward than required under the present unclear and complex law. Though it is sometimes asserted that the jury's ability to understand and act on such directions is debatable, such directions are commonplace in criminal trials. The criminal justice system must operate on the basis that the jury will faithfully act on, and follow, such directions. As was noted by the New South Wales Court of Appeal in the case of R v Milat:

Ultimately, however, it is the capacity of jurors, properly instructed by trial judges to decide cases by reference to legally admissible evidence and legally relevant arguments, and not otherwise, that is the foundation of the [criminal justice] system.

This theme was developed by McHugh J in R v Gilbert (1993) 69 A Crim R 450 at 453-454:

The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one — accused, trial judge or member of the public — could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.

One of the issues that often arises in practice is the standard of proof required in respect of uncharged acts, especially if of a sexual nature. There are also suggestions in some recent cases, notably HML, that any uncharged act, especially in a sexual case, must be established beyond reasonable doubt before it can be led or used. The Bill rejects this approach as dogmatic and unhelpful. Evidence of discreditable conduct is a species of circumstantial evidence and, like all circumstantial evidence, need not be established beyond reasonable doubt save, and unless, it forms an indispensable link in the chain of reasoning to guilt. Any universal requirement for an uncharged act to be independently proved beyond reasonable doubt is confusing and would have the effect of even further complicating jury directions in an already complex area of the law. It would have the practical effect of excluding cogent and reliable evidence that is routinely admitted and used, especially in non-sexual cases. Such a universal requirement is, further, a major departure from the established rule identified by the High Court in R v Shepherd(1990) 170 CLR 519.

The Bill incorporates the view of the High Court in Shepherd. Section 34R(2) provides that, if evidence of discreditable conduct is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted, are established beyond reasonable doubt, and the trial judge must give a direction to that effect. This accords with past judicial practice.

The Bill confirms the established judicial practice set out in Nieterink and many other cases that, if the evidence of past discreditable conduct is admitted for a specific and limited purpose, such as background or relationship that does not involve a propensity or similar fact line of reasoning, then it is incumbent on the trial judge to warn the jury to this effect.

The effect of Nieterink is that the jury should be told how they should use the evidence and how they should not use the evidence. The jury has to be told the particular manner in which the evidence could be used. It is contemplated that this can be done relatively briefly. Usually, it will not be enough for the trial judge to speak generally to the jury of the evidence establishing 'background', 'context' or 'relationship' matters. It will be preferable for the trial judge to be quite specific about the proper use of the evidence, both to help the jury to approach the evidence in the correct manner and to reduce the risk of an incorrect approach. The jury should be told that the evidence, if accepted, is evidence of the limited and specific purpose for which the evidence was specifically admitted. Even if the evidence is capable of being used for propensity or similar fact purposes, as will often be the case in practice, the jury must be warned they cannot use the evidence for such wider purposes.

The jury has to be warned quite specifically not to reason, if they accepted the evidence of the uncharged acts of discreditable conduct, that the accused has committed similar offences and that the accused was the type of person who might commit the offence charged and find him or her guilty on that basis. The trial judge should emphasise that generalised reasoning of that sort is not permissible. The jury should be particularly directed to convict only if satisfied beyond reasonable doubt that the particular conduct that is the subject of the specific charges the defendant faces has occurred. The jury should be specifically warned not to reason that, as conduct similar to that charged has occurred, they can convict on a particular count.

The Bill recognises, as was observed by the Chief Justice in Nieterink, that it is very important that these warnings and directions are given in an appropriate case because of the potential for prejudicial misuse of evidence of uncharged acts of discreditable conduct. The Bill further recognises that it is important for the trial judge to emphasise both the correct and incorrect use of the evidence. If both aspects are not present in any summing up, there is a real risk that the jury will misunderstand their task.

The Bill finally deals with 2 incidental issues.

First, the Bill applies to both the prosecution and the defence. The accused may seek to show that a police officer or the alleged victim has a tendency to act in a certain malevolent manner. The cases of Knight v Jones; ex parte Jones [1981] Qd R 98 and R v Harmer (1985) 28 A Crim R 35 are examples of such situations. However, it is clear that in deciding whether to exercise its discretion to admit the evidence of discreditable conduct under the Bill, the court, as at common law, will be swayed by the very different nature and purpose of the defence as opposed to the prosecution leading such evidence. The fundamental right to a fair trial will obviously apply. Therefore, in practice, a different test of admissibility will apply as regards the defence. Whilst it is clear that an accused is not entitled to adduce evidence going merely to the credit of a prosecution witness, it is equally clear that an accused is entitled to call, in support of his or her defence in disproof of the prosecution case, any evidence which is properly relevant to an issue and this might include evidence touching on the disposition, character or violent propensity of some other person. Though evidence of a propensity to commit the alleged crime, bad character or prior convictions cannot be simply led by the prosecution, that is because the policy of the law as to the fairness of a criminal trial and not because such evidence is irrelevant. This policy of exclusion does not apply to the defence. The test of admissibility in such cases for the defence will be more akin to the test of relevance applicable in civil cases. The Bill is not intended to alter this position. The ability of the defence to adduce such evidence will still be considerably wider than the prosecution.

The accused may seek to introduce evidence of discreditable conduct against a third party in criminal proceedings. The case of R v Button (2002) 25 WAR 382 provides an illustration of when such evidence could have been properly adduced by A at his or her trial to suggest that B had in fact committed the crimes with which A had been charged. That is appropriate, as it must be possible for an accused A to defend a criminal charge by seeking to prove that the offence was committed, in fact, by another person B. It is logical that A should be able in an appropriate case to lead any evidence tending to prove that the offence was actually committed by B. That would include any discreditable conduct adduced for propensity or similar fact or other purposes which would be admissible in a trial of B. The test for the admissibility of such evidence will not be as high as if the prosecution were seeking to use such evidence. The test will essentially remain as one of relevance having regard to the nature of the facts and issues in the case. To require more of an accused is to interfere with the time honoured principle that it is not for an accused to prove his or her innocence. That is consistent with the usual position that the accused bears no persuasive onus of proof, merely an evidential one.

Secondly, the Bill recognises, in section 34T, the major practical problems that can arise from the defence seeking to use evidence of discreditable conduct against a co-defendant at a joint trial. Such a joint trial may become too entangled and a jury, even if given detailed directions, may be unable to prevent undue prejudice to the co-defendant. In such circumstances, the Bill, confirming and reinforcing existing practice in this area, provides this to be a strong factor to taken into account in the trial judge's existing common law discretion in deciding whether to order separate trials.

Conclusion

Though a variety of other models are used in Australia and elsewhere, it was considered that none of those models was ideal for South Australia. The Uniform Evidence Act model arising from the work of the Australian Law Reform Commission that is used in Victoria, New South Wales, Tasmania and the Australian Capital Territory is not without its benefits but that model is also not without its problems and has not met with universal acclaim. There have been very recent suggestions about reforming this model.

The Bill is particular to South Australia and has been the subject of an extensive consultation process with expert input from various interested parties. There was unanimity that the existing law was in need of major reform. It was widely felt that the present law was too complex and difficult to apply in practice and that the test from Pfennig and Hoch set the bar of admissibility too high and should be modified. It was further widely felt that the position in Nieterink usefully reflected what should be the position with regards to evidence of uncharged acts. These features are all incorporated in the final Bill.

In summary, the Bill will enhance the successful prosecution of offenders and improve outcomes for victims of crime in general and, in particular, victims of sexual offences, whilst still maintaining an appropriate balance and ensuring that the defendant's right to a fair trial is not undermined. The 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 at clarification of a notoriously difficult area of the criminal law in favour of a workable and considered model. The Bill is the product of the extensive consultation process and implements an important election policy in a fair, workable and effective manner that achieves the stated goals of codifying and simplifying this difficult and complex area of the criminal law and allowing, in an appropriate case and with proper safeguards, the greater use of this type of evidence by the prosecution. The conclusion of the Joint Courts Criminal Legislation Committee of the final Bill is telling:

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.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Evidence Act 1929

4—Insertion of Part 3 Division 3

The new Division (comprising sections 34O to 34T) is to be inserted after section 34N of the Evidence Act 1929 (the principal Act).

Division 3—Admissibility of evidence showing discreditable conduct or disposition

1—Application of Division

The Division applies to criminal proceedings and prevails over any relevant common law rule of admissibility of evidence to the extent of any inconsistency. The Division does not apply to—

evidence given by an accused person pursuant to section 18 of the principal Act; or

evidence of the character, reputation, conduct or disposition of a person as a fact in issue.

2—Evidence of discreditable conduct

Discreditable conduct evidence, in the trial of a charge of an offence, is evidence that tends to suggest that the defendant has engaged in discreditable conduct (whether or not constituting an offence) other than the discreditable conduct constituting the offence in respect of which the defendant is on trial. Discreditable conduct evidence—

cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

is inadmissible for that purpose (impermissible use); and

(subject to this section) is inadmissible for any other purpose.

Discreditable conduct evidence may be admitted for a use (the permissible use) other than an impermissible use if, and only if—

the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and

in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

3—Use of evidence for other purposes

This section provides that evidence that under this Division is not admissible for one use must not be used in that way even if it is relevant and admissible for another use.

4—Trial directions

Provision is made in this section for the directions that the judge must give in a trial in which discreditable conduct evidence is admitted.

5—Certain matters excluded from consideration of admissibility

Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following:

there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant;

the evidence may be the result of collusion or concoction.

6—Severance

This section makes provision for a defendant to apply for a separate trial where 2 or more defendants have been charged in the same information, or the severing of charges from an information, where a party proposes to adduce discreditable conduct evidence and the matters that a court must take into account when considering any such application.

Part 3—Amendment of Criminal Law Consolidation Act 1935

5—Amendment of section 278—Joinder of charges

This amendment is related to the proposed amendments to the Evidence Act 1929 relating to the admissibility of discreditable evidence and also makes a technical change relating to the definition of sexual offence in subsection (4).

Schedule 1—Transitional provision

1—Transitional provision

The transitional clause provides that the amendments to the Evidence Act 1929 are intended to apply in respect of—

proceedings for an offence commenced but not determined before the commencement of this clause; and

proceedings for an offence commenced after the commencement of this clause.

An order made by a court under the Evidence Act 1929 as in force immediately before the commencement of this clause will remain in force according to its terms.

Debate adjourned on motion of Hon. S.G. Wade.

At 20:43 the council adjourned until Wednesday 27 July 2011 at 14:15.