EVIDENCE (DISCREDITABLE CONDUCT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 26 September 2013.)

The Hon. S.G. WADE (15:19): I rise to speak on the second reading of the Evidence (Discreditable Conduct) Amendment Bill 2013. I will be brief because the bill itself is brief; in fact, it consists of just one sentence. This issue the bill seeks to address is also rather straightforward. The 2011 act, the Evidence (Discreditable Conduct) Act 2011, required that notice be given for all discreditable conduct evidence, even if the evidence did not relate to the propensity or disposition of the person charged. The government, the Solicitor-General and the DPP argue that the notice requirements have been onerous in practice and are seeking to remove them altogether. The opposition is sympathetic to that concern and seeks to facilitate that in a measured way.

For members who have been following the debate in the other place, as the bill was originally introduced it only sought to remove notices for discreditable conduct that related to propensity or similar fact evidence. To frame that in the positive tense, the bill originally introduced by the government only required notice to be given for propensity and similar fact evidence. The opposition was prepared to accept that limited scaling back but did not affect the evidence that comprised the most significant risk. However, we do not support the change to remove notice requirements for the most risky evidence. As such I will be moving an amendment during the committee stage to revert the bill to the original version introduced by the government in the House of Assembly.

Let me stress that this is not a radical diversion from the government's intention, it is actually a suggestion that their first attempt was the best. In that context, I remind honourable members of the debate. It is easy for the bill of 2011 which was the subject of such debate to have faded in our memory. I thought that perhaps one of the most pertinent statements in the House of Assembly by the Attorney-General was a nice, succinct statement which highlights the risk of this sort of evidence:

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.

Later in the same statement he said:

The result of that test is a cogent, reliable and highly relevant evidence is sometimes kept from a jury. The Bill will improve the criminal justice system by allowing prosecutors in appropriate cases to introduce evidence of prior offending when it is both relevant and appropriate and in the interest 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).

I will continue to quote the Attorney-General but I pause to say that, having stated the general law, he then went on to state the risk:

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'...is a strong principle of the common 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.

So the Attorney-General was appropriately indicating that this was an enhancement of the law which, if I recall it correctly, was supported by all parties, but it was done so in a measured way, acknowledging the risk and part of the managing of the risk was to put in notice requirements. The bill required that that notice requirement be given for all forms of discreditable conduct evidence. The government's original bill in the House of Assembly is that proved onerous, let's just limit it to propensity and similar fact evidence. We think that was a reasonable balancing of the risk and the benefit. The government is now proposing, in the bill's amended form as it arrived in this council, to remove the notice requirements altogether.

I should stress that the Law Society, as I understand it, has distributed to all members its strong opposition not only to the bill as amended in this place but the bill as introduced in that place. The Law Society would say don't touch the law. We say, yes, we think a measured modification is appropriate but, considering that we are dealing with risky evidence in a very sensitive area of law, we believe it is appropriate to maintain the notice requirements in relation to propensity and similar fact evidence. I will be moving an amendment at clause 3 to that effect.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (15:25): I do not believe there are any further second reading contributions on this bill, which is quite straightforward and small. It is about making changes around governing the use of discreditable conduct evidence in criminal proceedings. A great deal of consultation has taken place in relation to this, and the act really is intended to simplify what has become a very complex area in common law. With those few words, I commend the bill and look forward to its being dealt with expeditiously through committee.

Bill read a second time.

Committee Stage

Clause 1.

The Hon. S.G. WADE: The minister mentioned that there had been significant consultation, but was mute as to the nature of it. I clarify that the Law Society does not support this bill, and I will quote from a letter dated 11 October:

The manifest purpose of the bill is to ensure that the evidence of discreditable conduct is admitted only for a permissible purpose. To that end it is incumbent upon the adducing party to outline the purpose for which it wishes to lead the evidence. This is of critical importance before it, because it puts before the court and the defendant (or co-defendant) on notice of the proposed use of the evidence. From there, arguments as to admissibility will properly follow. Importantly, the court will be in a position to rule on admissibility on the basis of the proposed use.

The letter concludes that society does not support the original bill and does not support the amended bill. To clarify, the minister suggested that this simplified a complex area of law: it does no such thing. It relates to notice requirements. We changed the law in 2011.

The Hon. D.G.E. HOOD: Why has the government amended the bill? What is the government seeking to do? Why was the government not satisfied with the bill originally, and what was the reason for the change?

The Hon. G.E. GAGO: The Evidence (Discreditable Conduct) Amendment Bill made changes to the Evidence Act 1929 governing the use of discreditable conduct evidence in criminal proceedings. The act passed with all party support, following an extensive consultation process. The act was intended to simplify what had become a complex area of common law. Though the act is a major advance on the previous common law position, one aspect needs clarification.

The 2011 act requires a party seeking to adduce any evidence of discreditable conduct to give notice in writing to each other party in the proceedings, in accordance with the rules of court. This requirement was drawn from a practice in the Uniform Evidence Act jurisdictions. It has become clear that the inclusion of that notice requirement in the South Australian legislation is not necessary. Importantly, the removal of the notice requirement 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 the admissibility of the discreditable conduct evidence before a party will be able to lead such evidence.

The Hon. S.G. WADE: Basically, what the minister just read to you was the second reading speech to the original government bill, with a slight modification at the end. Could I remind members what the government said at the second reading stage of the original 2011 bill in relation to notice?

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.

If the risk was there then, the risk is there now. It is clear from the statements in the second reading explanation that that was going to apply to nonpropensity and nonsimilar fact purposes. We think the risk of removing the notice in relation to those classes of evidence is one thing, and we are willing to accept that. We are not willing to take the next step, particularly in light of the grave concerns expressed by the Law Society.

The Hon. M. PARNELL: I will take any guidance that you have, Mr Chairman, but given that this is such a small bill, it looks like every issue is being agitated currently at clause 1. I am happy to wait until the Hon. Stephen Wade moves his amendment, but I have some questions of him. Is it appropriate to ask those now?

The CHAIR: Certainly.

The Hon. M. PARNELL: My question of the Hon. Stephen Wade: is it the opposition's main concern that without a formal notification provision, such as we have currently in section 34P(4) and (5), dangerous or risky evidence would enter into a trial on the run without a judge having the ability to think about its relevance or admissibility and without the defendant having the chance to challenge its relevance or admissibility? Is the main fear that this stuff could just appear in court and everyone be taken by surprise, and suddenly it is before the jury and nobody has had a chance to draw breath and work out whether in fact it should be part of the case at all. Is that the concern?

The Hon. S.G. WADE: I am happy to respond. I would suggest that it probably is more a matter of amendment at clause 3. It is always incumbent on the judge to exclude evidence which is not appropriate, but the position of the government in 2011 and the position of the government as recently as 11 September was that notice was appropriate. In spite of the fact of the normal processes in relation to disclosure of evidence and the normal processes of the judge being able to exclude inappropriate evidence, notice was appropriate. It was appropriate in 2011. It was appropriate in relation to this risky class as recently as 11 September and now it is not.

I did take the opportunity specifically to discuss this with a QC. I asked, 'Is it a real mischief? Do you think that we are going to increase the risk of miscarriages of justice without the notice?' He was adamant that he believed that it was important in relation to what is demonstrably risky evidence. I do not want to be convicted because I did a similar thing in the past. I will be done for each crime in turn on the basis of the evidence in each case.

Certainly, the member is correctly indicating that judges can always act to exclude evidence that is inappropriate. But, as I said, notice procedure was seen appropriate for everything in 2011; it was seen as appropriate, in relation to the more narrow class, by the government itself in its own bill as early as 11 September. I do not think that the interests of justice in South Australia have dramatically changed in the last month such that a more cautious approach, which was originally proposed by the government, is not the appropriate course to take now.

The CHAIR: Basically, I gave you some latitude, the Hon. Mr Parnell and the Hon. Mr Wade. We are still at clause 1, and the questioning and answering is still going to the amendments. I am proposing to stick to clause 1 or to put clauses 1 to 3 and we can go straight to the Hon. Mr Wade's amendment at clause 4.

The Hon. M. PARNELL: I have an observation on clause 1.

The CHAIR: An observation?

The Hon. M. PARNELL: Yes. The Hon. Stephen Wade has pointed out that we did debate this back in 2011. I revisited the remarks I made back then, when really the question before us was: should we codify, should we put in a statute, what has been the practice of the court? As I understand it, that is effectively what we did: we wrote down and put into the Evidence Act the practice that had already developed over time.

I did note, going back through Hansard, that we did not have a committee debate on the bill back in 2011; Hansard just records that the bill passed through its remaining stages. There were no questions, no contributions, no nothing. So, this is actually the first time we have bothered to go through it clause by clause.

I have a question on clause 1, and I refer to the Law Society's submission—and, as the Hon. Stephen Wade said, the Law Society has said that it does not like it. One of the Law Society's points, and I think that it is a fair point, says:

In order for the court to rule on the admissibility of discreditable conduct evidence, it is essential for it to know its proposed use.

That is sort of stating the obvious. Then it goes on to say, 'The subsection 34P(4) notice provides this information to the court.' My question of the minister is: is that the only way for the court to get that information? In other words, if we dispensed with the notice, which is what this bill seeks to do, does that of itself mean that the court will somehow become ignorant as to the proposed use of this discreditable conduct evidence?

The Hon. G.E. GAGO: While I am seeking advice, I would like to respond to some comments the Hon. Mr Wade has made, which also allude to questions the Hon. Mark Parnell asked. I think that what the Hon. Mr Wade is not taking into account is the development of this law in the courts. As the Hon. Stephen Wade said, the Law Society, in its submission, said:

The manifest purpose of this bill is to ensure that evidence of discreditable conduct is admitted only for permissible purpose. To that end, it is incumbent upon the adducing party to outline the purpose for which it wishes to lead the evidence.

With the greatest respect to the Criminal Law Committee, the government disagrees with the latter part of that statement. On one reading, it could be said that the Law Society is asserting that it is for the prosecution or counsel for the co-accused to justify the admission of evidence of discreditable conduct, under section 34P, as a matter of law. I am advised that this is not correct. The correct position, in accordance with the relevant case law, is that it is incumbent upon the other party to object to the use of that evidence.

The Hon. S.G. WADE: While the minister is continuing to—

The CHAIR: The Hon. Mr Wade, we are still awaiting—

The Hon. G.E. GAGO: I'm still awaiting some advice.

The Hon. S.G. WADE: Yes, but you have interposed with a comment on another matter. I believe I can do the same.

The Hon. G.E. GAGO: But I haven't finished my answer yet.

The CHAIR: Yes, it goes to your amendment and I should not have allowed you to do it. We are still at clause 1, we are at observation 1.

The Hon. G.E. GAGO: If you just give me a minute I will respond in full.

The CHAIR: The minister will be responding to the Hon. Mr Parnell—

The Hon. S.G. Wade: She interposed with an irrelevant comment.

The CHAIR: You don't run this place yet, the Hon. Mr Wade, so just relax and let the minister—

The Hon. G.E. GAGO: He won't be for a while, either, at the rate they're going.

The CHAIR: Minister, do you have a response?

The Hon. G.E. GAGO: If you can indulge me for one more moment.

The CHAIR: Do you have a response to the Hon. Mr Parnell's observation?

The Hon. G.E. GAGO: It is coming.

The Hon. S.G. Wade: The silence is deafening.

The Hon. G.E. GAGO: It is on its way. I have been advised that the answer to the Hon. Mark Parnell's question is: absolutely not. The Court of Criminal Appeal has handed down a number of decisions on this section. The case of R v CG (2013) SASCFC83 makes it clear, as I am sure you will agree—

The Hon. M. Parnell: I will refresh my memory later.

The Hon. G.E. GAGO: Let me refresh your memory—makes it clear that the onus is on the defence to raise objections to the use of the evidence, as it is at this point that the court will consider the proposed use of that evidence with assistance from the parties and make a ruling on that evidence.

The CHAIR: Mr Wade—at clause 1, I hope.

The Hon. S.G. WADE: I am actually responding to a comment by the Hon. Mark Parnell on clause 1.

The CHAIR: On clause 1?

The Hon. S.G. WADE: Yes. The Hon. Mark Parnell, I think, correctly summarised the discussions of 2011 as seeing this as a part codification of the relevant law. I think that is a very relevant point to make because in that sense it was one of the rare cases where the South Australian evidence law was moved towards the uniform Evidence Act. If I can quote from the speech of the Attorney-General in the other place he acknowledged that and said:

The 2011 Act requires a party seeking to adduce—

I am presuming the word that should be there is 'evidence'—

of discreditable conduct to give notice in writing to each other party in the proceedings in accordance with the rules of court. This requirement—

in other words, the requirement in 2011—

was drawn from the practice in the Uniform Evidence Act jurisdictions.

Let me pause: the Uniform Evidence Act jurisdictions are the jurisdictions that have codified their evidence laws. It goes on to say that:

The UEA requires the prosecution to give notice of its intention to use either propensity or similar fact evidence, but importantly does not require written evidence of a party's intention to use discreditable conduct for other purposes.

In other words, if we followed them in 2011 and we part codified, and they require notice still and we are maintaining part codification, I cannot see why we should not continue to follow their precedent of requiring notice in that limited circumstance only.

The Hon. G.E. GAGO: With all due respect to the Hon. Stephen Wade, who is far more knowledgeable in these legal and technical matters than I am, I believe and am advised that the Hon. Stephen Wade is actually still relying on the original bill back in 2011 and what was said about that at that time. It appears that at the moment his comments appear to be failing to take into consideration the way the courts have interpreted that since then. That has a significant bearing and difference on the interpretation.

The Hon. S.G. WADE: Thank you, Mr Chairman, for your generosity with the clause 1 contribution; it is certainly enlightening. Could I reiterate: the quote that I just gave was a statement by the Attorney-General on 11 September 2013. If the Leader of the Government is suggesting that somehow I have not allowed for recent developments in the law, then that is an issue she should raise with the Attorney-General, not with me. Let me read it again:

This requirement—

from the 2011 act—

was drawn from the practice in the Uniform Evidence Act jurisdictions. The UEA requires the prosecution—

Requires—current tense. As at 11 September, UEA jurisdictions require notice. If the government is now telling us that either those jurisdictions have all changed their laws since 11 September or some other massive development has occurred that we need to be made aware of, then I suggest the government does that. Otherwise, do not impugn my statements when I am quoting their own Attorney-General.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. S.G. WADE: I move:

Amendment No 1 [Wade–1]—

Page 2, line 11—Delete line 11 and substitute:

Section 34P(4)—after 'evidence' insert:

that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue

I must admit bemusement. I did not realise it was going to be so hard to argue for a government bill. The use of propensity evidence and similar fact evidence has a significant chance of prejudicing a case if used. Therefore, it makes perfect sense that clear and advance notice is given to ensure it is appropriate before it is admitted.

Evidence about a person's propensity or disposition is risky. It could come down to as crude a proposition as, 'We should convict Fred of one crime because we know he did another.' I note that the Hon. Mark Parnell made the point in his 2011 contribution to the debate on the original act that the idea of someone's past history of criminal acts being used to persuade a jury of a person's guilt on other matters had the potential to significantly undermine justice. That concern is still present if appropriate checks and balances, such as notice, are not in place. It is appropriate that parties have notice of such evidence to be presented and the arguments to be made out.

We are faced with the need to balance resourcing challenges within our prosecution and the risk of miscarriages of justice. The original 2013 bill tabled on 11 September said the balance would be restored by only requiring notice of evidence that was going to be used that showed propensity or disposition. The bill as amended by the government that has come into this place said that we should abolish notice for any use of discreditable conduct including propensity or disposition.

The opposition humbly considers that the government was right. The government was right and closer to the right balance in its original bill—the one tabled on 11 September in the other place. Notice should be given if the evidence is going to be used to show propensity or disposition. My amendment simply reverts the government bill to its original form. Members who are concerned about transparency, about open disclosure and about checks and balances to avoid miscarriages of justice, I would urge you to support the amendment.

The Hon. J.A. DARLEY: I rise very briefly to indicate my support for this amendment, but I do so somewhat reluctantly. I am advised that the Criminal Court of Appeal has ruled that notice requirements under section 34P(4) are of no legal consequence. They are not relevant in any substantial sense. That is clearly reflected in the government's bill. The criminal bar on the other hand has recommended that the requirements be kept in an amended form which reduces the subject matter of what needs to be provided. This approach is consistent with the opposition's proposed amendment.

This amendment should not be seen as being soft on crime or about making the job of defence lawyers easier. It should be about ensuring that our legislation reflects what is deemed acceptable while at the same time providing appropriate safeguards. The argument that the Criminal Court of Appeal's ruling renders the provision superfluous is certainly very convincing. However, it fails to address the concerns raised by the legal profession more generally.

What this highlights to me is that this is an area of our criminal justice system that warrants much broader review. There appears to be a general consensus on both sides of the argument that, as they stand, the notice requirements are too broad. Rather than throwing out the baby with the bath water, I think it would be sensible to adopt the position of the opposition in the first instance and ensure that the wider issues that have been raised be addressed through some form of consultation process. The fact that the court has the ability to dispense with the notice requirements altogether further reaffirms why I am willing to support the opposition's argument.

The Hon. G.E. GAGO: The government rises to oppose the amendment. This amendment reinserts notice requirements into section 34P. The amendment brings the bill back to the format it was in when the government introduced it in the other place. The government amended the bill in the other place to remove the notice requirement completely after receiving advice that the notice provisions were not necessary given recent decisions of the Court of Criminal Appeal.

Despite the section requiring prior written notice, the onus is still on the other parties and the court to raise any objections to the use of evidence of discreditable conduct. This being so, the government has taken the view that the notice requirement is unnecessary as a matter of law, given the operation of section 34P, and therefore should be removed. Any notice requirement in practice for discreditable conduct evidence seems an unnecessary bureaucratic formality; however, there are certainly arguments to support the opposition's amendment and the original form of this bill.

The Law Society has expressed its support for the retention of the notice requirements, as has already been mentioned in this place, and there is no doubt that the receipt of a notice containing the uses to which the prosecution or co-accusing tends to put such types of evidence would be a useful tool when advising a client facing criminal charges. I have already put on the record our view of the lack of understanding around the issue of it being incumbent on the adducing party to outline the purpose for which it wishes to lead to evidence and I have already put our response to that on the record.

The Hon. S.G. WADE: I will just briefly respond. I accept the advice that I was given by government in earlier stages that recent court decisions have suggested that it is not necessary. In other words, it is not fatal for the admission of evidence that a notice was not provided, but to me that does not go at all to the case of how useful it is in terms of ensuring a fair trial and to avoid miscarriages of justice. I prefer the government's original bill. I encourage members to support the amendment.

The Hon. M. PARNELL: I am loath to drag the debate out on what seems to be a fairly, in some ways, minor technical point, but what I do not have any feeling for at the moment is what degree of relief would be provided under the government model and under the opposition model.

Under the government model the relief would be that nobody has to give this formal notice in writing to each party in the proceedings in accordance with the rules of court because we would be deleting that altogether. Under the Hon. Stephen Wade's proposal there are still some cases where you would have to give that notice, but what I have no idea about is: are we talking hundreds of cases per year and the Hon. Stephen Wade is giving relief in 50 per cent of them? To try to work out how serious an issue this really is, if anyone can throw any light on that, I would appreciate it.

The Hon. G.E. GAGO: I have been advised that the use of similar fact or propensity evidence is adduced in a significant number of cases, particularly sexual assault cases. The original form of the bill would reduce the burden significantly, which is what the Hon. Mr Wade's amendment seeks to do; however, some notices would still be required. Ultimately it is the government's desire for the legislation to pass through parliament, whether it is in the form introduced to the other place or in the form before us now.

The government obviously opposes the opposition's amendment but I am advised that the Attorney-General will likely accept that amendment in the other place should it be the will of this chamber. We would obviously prefer notice to be removed, but we are at either way.

The Hon. S.G. WADE: I would like also to make a contribution to the Hon. Mark Parnell's question. My memory might not serve me correctly, but I seem to recall that I asked a similar question of the DPP, and I do not think I am misrepresenting it by providing a bit more clarity than saying propensity and similar fact evidence is used in a significant number of cases.

My understanding is that the DPP led me to believe that the current provisions mean that in hundreds of cases he or his officers are required to provide notices, and that is why the bill is here, because it has proved to be an onerous burden. In terms of the affordability, if you like, of what my amendment suggests and what the government originally proposed, I make two points.

First of all, we are talking about a risky area: the cost-benefit analysis of innocent people being inappropriately imprisoned and, for that matter, the cost to the state of miscarriages of justice and appeals and so forth. I suspect that serving a notice in a minority of cases is money well spent. My other point goes back to the Hon. Mr Parnell's point about part codification. The other states on which this 2011 provision was modelled require notice. It cannot not be that onerous; they are doing it all the time.

The Hon. M. PARNELL: This is indeed a wicked dilemma. I thank the minister for her answer and the Hon. Mr Stephen Wade as well, but we do need to come to a landing on this. I take some comfort from the fact that the main operative provisions of section 34P are not being altered, that is, the default position is that this discreditable conduct evidence is not allowed, and the act then sets out an exception to that. What we are talking about is if someone wants to try to invoke the exception, do they have to give notice?

I understand that it is an onerous burden but also I note that if the bill is passed in its unamended form—in other words, subsections (4) and (5) are both deleted—I would have thought that in the practice of the court, if it turned out that some form of time frame or notice was required, then they can impose that through the rules of court notwithstanding that there is no express provision in section 34P.

Subsection (4) that the government is proposing to delete entirely is fairly prescriptive but not entirely. What it says is that you have to give reasonable notice in writing in accordance with the rules of court. So, what a reasonable notice is will be determined by the rules of court and it may be that the notice might not have to be given in writing. The rules of court might provide that it has to be given verbally and it might set out some sort of time frame. However, we have to overlay on that the risk, as the Hon. Stephen Wade has said, and the cost to the DPP.

We know the backlog of criminal trials is a matter of concern to those awaiting criminal trial, if not of concern to the general community, but I do not think that there is any great harm in accepting the government's bill as it currently is and that is getting rid of (4) and (5) together. It is not to say that the Hon. Stephen Wade's arguments do not make sense, they do, but in terms of coming to a landing on this we will be supporting the bill and we will not be supporting the Hon. Stephen Wade's amendment.

The committee divided on the amendment:

Majority of 2 for the ayes.

Amendment thus carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:07): I move:

That this bill be now read a third time.

Bill read a third time and passed.