Criminal Law Consolidation (Human Remains) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 September 2021.)

The Hon. F. PANGALLO (18:02): I rise to speak in support of the Criminal Law Consolidation (Human Remains) Amendment Bill, as introduced by the Hon. Kyam Maher. I understand that this bill has arisen to close off an unintended loophole in the criminal law that can give a significant incentive and forensic advantage to an offender who has disposed of, concealed, interfered with, mutilated or not reported a corpse. These actions could potentially protect an offender from being charged with more serious crimes as well as making it much more difficult to prosecute offenders due to the lack of evidence. It is important that we remove this incentive and possible protection for perpetrators.

There are apparently over 28 cases since 2000 in South Australia where a body has been disposed of. In some of these cases, even where an offender has been found guilty of manslaughter or murder, family and friends often never know what really happened to the deceased and, even worse for families, many have never had justice, closure, resolution or a funeral. They continue to suffer all their days.

Sadly, my own family and extended family also had firsthand experience of the need for this bill. In December last year, South Australia Police were called to the Wingfield Integrated Waste Services after staff found a body buried in green waste. The 52-year-old male victim was identified as my wife's cousin Anastasios Tzanavaras—Soulis to those of us who knew him. A person has been charged with his murder, but the case has not been heard yet.

As you can imagine, it was a crime which has shocked and caused distress to Soulis' immediate family, especially his mum and dad, sisters, his children, and those of us who knew him. Soulis was a troubled and complicated soul for much of his adult life, but inside there was a sensitive heart of gold. Unfortunately, the world had long sped past Soulis and, as much as he and his loving family tried, he struggled to keep up. However, nobody deserves the cruel fate that befell him. That his body was discovered at least provided some tiny consolation and closure.

In other cases, concealing the body has meant that a person has been able to evade apprehension and has been freely living in the community. In the case of Geoffrey Adams, who murdered his wife and buried her in the backyard of the family home on Yorke Peninsula, he evaded detection for around 45 years. He was convicted of manslaughter, but died before being sentenced.

The vile serial killing spree of John Bunting and Robert Wagner, who murdered 12 people over a seven-year period but were able to evade detection by eating the flesh of their final victim and putting the remains of another eight inside six barrels in a bank vault in Snowtown, is a particularly dark case in South Australia's criminal history.

More recently, the heartbreaking murder of Karlie Pearce-Stevenson and her two-year-old daughter, Khandalyce Pearce, by Daniel Holdom is another example of concealing the body protecting a perpetrator, often for decades. The remains of Pearce-Stevenson were found in Belanglo State Forest, New South Wales in 2010, and those of her daughter Khandalyce Pearce were found near Wynarka, South Australia, five years later, in 2015. They had been missing since 2008.

Holdom had evaded detection and re-partnered, living in the community for over seven years. It was not until the gruesome 2015 discovery of Khandalyce's remains, and some outstanding police work in regard to that evidence, that the offender was able to be charged and convicted of both murders.

Another case that comes to mind was the brutal murder of Adelaide pensioner Vonne McGlynn. Angelika Gavare, 35, killed the 82 year old and dismembered her body before disposing of the body parts. Ms McGlynn disappeared from her home at Reynella in late 2008. Parts of her body were found at nearby Christie Downs in 2009, but her head and hands were never found.

Prosecutors alleged Gavare killed the pensioner out of greed and had planned to steal the woman's house and sell it for financial gain. Having done so she needed to hide the body and conceal any evidence that might connect her with the crime. The defence attempted to argue that the evidence proved Gavare committed fraud but not murder. The court found there was sufficient evidence notwithstanding Gavare's efforts to conceal the body. However, these laws would have assisted in applying an additional offence and penalty.

Then, of course, one of the most high-profile cases in recent times was the shooting murder of English backpacker Peter Falconio on a lonely stretch of the Stuart Highway near Barrow Creek in July 2001. Mr Falconio's body was never found, and Northern Territory police to this day continue to search for his remains and have vowed to leave no stone unturned to solve the last piece of this mystery. The man convicted of the crime in 2005, Bradley Murdoch, is in gaol refusing to provide any information to police about the location of Mr Falconio's remains, even if it results in an earlier release. He is not due for parole for another 10 years.

All clues and leads have so far come to a dead end, including one I investigated with the Seven Network 10 years ago—that the body may have been disposed in a well on Neutral Junction station only a few hundred metres from the crime scene. After Northern Territory police contacted me two years ago, my office provided them with a sworn statement from a credible witness. They then proceeded to drain the well. Sadly, they found no evidence of a body. However, it was too important for all concerned, including Mr Falconio's family, that this lead had to be investigated and eliminated.

I was in touch with Mr Falconio's still grieving parents, Joan and Luciano, during this period. I cannot imagine the pain and suffering they continue to endure daily, hoping and praying for a breakthrough that can give them all some peace of mind and resolution, if that is possible. Let's hope Murdoch finds some conscience and gives up the information before they leave this earth.

More recently, I have highlighted the heartbreak and distress of the Jenkins family from Adelaide, who have been trying to get Malaysian police to fully investigate the disappearance and likely murder of Mrs Anna Jenkins in Penang five years ago. Some remains and possessions were later found discarded on a construction site, but they have yet to be returned to the family here.

The federal government; Foreign Affairs Minister, Marise Payne; Australian Federal Police; DFAT; and the Australian High Commission in Malaysia, have not been helpful at all. It is a poor indictment on them that the interests of an Australian citizen abroad are not being upheld at senior diplomatic levels probably because it has not been a high-profile case, and high profile enough for the media, for them to care or act with some conviction.

However, I once more thank the members of the Legislative Council for passing an important motion last year urging the country's ruler, the Prime Minister and police to investigate the case properly. I would also like to thank the President, the Hon. John Dawkins, who has written a letter to the ruler of Malaysia urging the police to act promptly on the matter. As a result, there will be an inquest starting at the end of March, and I am pleased to also report that the Malaysian police are now taking a keener interest in it this time. I thank the chief of Penang police for this new approach.

I have a lot of sympathy for people like Lynette Nitschke of the Homicide Victim Support Group, who has long been an advocate for such laws to be in place since her daughter Allison was murdered. These cases must be very frustrating for police, the DPP and the victim's families and loved ones, but this bill should provide some assistance to address this gap in the law. I strongly support the introduction of the three new offences created in this bill. I will not go into detail about what each of them will do, but suffice to say they all deal with the defilement, destruction, concealment or alteration of human remains for various purposes.

The first two offences apply an additional maximum penalty of two years in prison. This will provide the courts with the ability to prosecute this offence in addition to the lesser crimes they may have been restricted to prosecuting due to the lack of evidence from the victim's body—for example, manslaughter instead of murder. The bill will mean that an offender could face a significant term of imprisonment for concealing a body in addition to any other charges, so the advantage to the perpetrator of taking these actions to defile, dispose, conceal, interfere, mutilate or destroy a body does not exist as it does now.

I am pleased to see that the third offence covers not reporting a body when discovered unless the person making the discovery reasonably believes that it has already been reported or is covered under the legislation—for example, for the Coroner or Aboriginal heritage. This offence has a lesser penalty of a maximum penalty of two years in prison and should act as a strong deterrent, particularly to accomplices.

I am interested to hear more about the bill's provision for the courts to deliver an alternative verdict where a particular intent cannot be proven beyond reasonable doubt, as I believe that would be a slippery slope without appropriate safeguards. I am also interested to hear the views of SAPOL, victims of crime groups, the Law Society and other stakeholders who have been consulted about this bill.

In closing, I would also like to thank one of my staff, Adrienne Gillam, who contributed to this speech and research into the bill. It is likely to be Adrienne's final contribution to SA-Best and the office in this parliament and before the new parliament begins. On behalf of the office, I would like to sincerely thank her for her invaluable input and advice. She joined us three years ago. She has been a thorough professional and her parliamentary knowledge and skills have been much appreciated by all. With that, I am pleased to support this bill and commend it to the chamber.

The Hon. R.I. LUCAS (Treasurer) (18:14): As I have said in three other contributions, given the lateness of the hour and the fact that the House of Assembly is not sitting, my contribution will be brief. I am advised that the government's position is to broadly support the bill; however, there are a number of amendments, which I understand the Leader of the Opposition might be supporting. I am also advised that the Director of Public Prosecutions, South Australia Police and the Commissioner for Victims' Rights all support the proposed offences contained in the bill. The government's amendments are essentially about increasing the penalties for the proposed offences. I indicate the government's support.

The Hon. K.J. MAHER (Leader of the Opposition) (18:15): I am pleased to see the broad support there is for the bill in this place. It is an important bill and, as the Hon. Frank Pangallo has chronicled and outlined, there are good reasons for this. The incentive for an offender to hide and dispose of a human body to try to avoid (a) detection and (b) with the passage of time the possibility of having what would possibly have otherwise been a murder charge and conviction or a manslaughter conviction, means that it is necessary to act in this case.

I want to thank Mindy and Philip Hind, who are Daniel Hind's parents, who have advocated very strongly for this bill. I was fortunate to spend some time talking to Mindy Hind. I think it was in November last year. She put very concisely and in a heartfelt way the reasons for needing this bill. The Hon. Frank Pangallo mentioned, and I think I mentioned in my second reading explanation when I introduced this, the work and advocacy of Lynette Nitschke, who I have known for 30 years. I was a close friend of her daughter Allison.

I want to place on record thanks for the indication of support for this bill from the Treasurer and note the support for this bill that the Treasurer has outlined from the DPP and South Australia Police. I do note that it is a very substantial change of heart from the Liberal government. The current Attorney-General—I think she still is—the member for Bragg, Vickie Chapman, certainly was very strong at the time this bill was introduced to parliament that the Liberals will not be supporting this and will not be acting on this, which is a very curious thing given the revelation today that the DPP and police both support this bill.

I guess this is one of the problems that we face at the moment. We have a person who holds the office, holds the ministerial title of Attorney-General, being the member for Bragg, the Hon. Vickie Chapman, but we also have another member of the executive, the Hon. Josh Teague, the member for Heysen, and I think his signature block is 'the minister exercising the powers of the Attorney-General'. We have an Attorney-General pro tem, who currently still has the title, who will not support this bill. We have the planning minister, exercising the powers of the Attorney-General, who is supporting this bill.

I note the Hon. Rob Lucas is trying to wind up. This is the bloke who last night went on for 70 or 80 minutes a time on his motions, so when he winds up and says, 'I want to get out of here. I want to spend time with my ponies in the fields tonight,' I will speak on this. The Hon. Rob Lucas has interrupted my train of thought, so I will have to rewind slightly. As I was saying, the current Attorney-General for the time being, the Hon. Vickie Chapman, the member for Bragg, was very firm that she would not act on this, as she has been very firm on other pieces of legislation that not just the opposition but crossbenchers have introduced that would increase penalties, particularly in the area of child sex offenders. There has been radio interview after radio interview during the course of the last four years where the current Attorney-General, the Hon. Vickie Chapman, has refused to act or has acted belatedly.

As I was saying, this is one of the problems we have: no-one knows, if they vote for the Liberal Party at this election, who the Attorney-General will be after the election. We have someone in Vickie Chapman who has the title of Attorney-General but is apparently not allowed to come to the office and no longer comes to cabinet meetings. We have a planning minister—I think the 15^th minister in the executive whose signature block says they are exercising the powers of the Attorney-General—but I have not heard from anywhere in the government who, should they win, will be the Attorney-General.

When you have such diametrically opposed views, you have the person who actually holds the title of Attorney-General saying, 'We won't follow DPP or police advice and we will not act on this,' as was the case last year, and then you have someone else who says, 'Apparently, we will act on this, and not just that but move amendments much closer in line with what the opposition and the crossbench have been advocating for.' I think it makes it very difficult for electors, if they vote Liberal, to know what they will get in terms of an attorney-general.

It is an important office that needs to be held, and I think it is unfair on the public of South Australia that when they come to cast their vote they will not know who they will have as Attorney-General after the election—someone who will not support bills like this one or someone who may support bills like this one; someone who will not listen to the DPP or police or someone who apparently has belatedly done so. I think it has been communicated through the Treasurer that apparently the minister exercising the powers of the Attorney-General has had a change of heart in relation to this, and I am very disappointed that we are still none the wiser as to who we can expect—not just the parliament but the South Australian public—to be dealing with after the election in relation to these issues.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 2, line 15 [clause 3, inserted section 175(1), definition of cremated]—Delete 'a process for' and substitute 'means'

I understand this fixes a drafting error in the definition of 'cremated'.

The Hon. K.J. MAHER: I have a question of the Treasurer on this and the further amendments. How did the recommendations come about? Was it the DPP or police who recommended the change in penalty? Was it discussed in cabinet.

The Hon. R.I. LUCAS: This is your bill.

The Hon. K.J. Maher: Yes, but you are moving amendments.

The Hon. R.I. LUCAS: Well, don't support it. You told me you were going to support them.

The Hon. K.J. Maher: I am going to support them. I am interested in why you are putting them.

The Hon. R.I. LUCAS: Then get up and support it.

The Hon. K.J. MAHER: I note the government does not know why they are moving these amendments, which is quite a peculiar sort of thing, but I guess it is a reasonable thing for the Treasurer's last act in his 40 years to not know why he is doing something.

The Hon. R.I. LUCAS: So are you supporting it?

The Hon. K.J. MAHER: Yes.

Amendment carried.

The CHAIR: The next amendment is Amendment No. 2 [Treasurer-1], Treasurer?

The Hon. K.J. Maher: Do you know what you are doing on this one, mate?

The Hon. R.I. LUCAS: If you want to stretch this out, Kyam, go your hardest.

The CHAIR: Order!

The Hon. R.I. LUCAS: You said you were going to support these.

The Hon. K.J. Maher: I am.

The Hon. R.I. LUCAS: Well, belt up.

The CHAIR: Order! Treasurer, sit down. That is unparliamentary to tell the Hon. Mr Maher to belt up—shocking. Treasurer. He will withdraw if he feels like it.

The Hon. R.I. LUCAS: It is half as serious as some of the things he has called me in the last 48 hours.

The CHAIR: Exactly.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–1]—

Page 3, line 37 [clause 3, inserted section 177(1), penalty provision]—Delete '10' and substitute '15'

This amendment proposes to increase the maximum penalty for the new offence in section 177 of the Criminal Law Consolidation Act from 10 years' imprisonment to 15 years' imprisonment. During consultation on the bill with South Australia Police they indicated that, whilst they were supportive of all the new offences proposed in the bill, in their view the penalties were insufficient and should be increased; therefore, this amendment seeks to incorporate the feedback from SAPOL and increases the maximum penalty for this offence.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 3 [Treasurer–1]—

Page 3, after line 37 [clause 3, inserted section 177]—Insert:

(1a) Despite section 26 or any other provision of the Sentencing Act 2017, a court sentencing a person for an offence against this section where the person is also found guilty of causing the death of the decedent must direct that the sentence be cumulative on any sentence of imprisonment or detention in a training centre being served, or to be served, by the defendant (other than a sentence of life imprisonment) in relation to that causing of death.

This amendment inserts the provision into new section 177 to provide that where the person who is convicted of this offence is also the person who has been convicted of causing the death of the deceased person, the sentence for the section 177 offence must be served cumulatively upon any other sentence of imprisonment, other than where the offender has been sentenced to life imprisonment.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 4 [Treasurer–1]—

Page 4, line 14 [clause 3, inserted section 178, penalty provision]—Delete '5' and substitute '15'

This amendment is proposed for the same reasons I outlined in relation to amendment No. 2 and will increase the maximum penalty for the offence in section 178 from five years' imprisonment to 15 years' imprisonment.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 5 [Treasurer–1]—

Page 4, line 21 [clause 3, inserted section 179(1), penalty provision]—Delete '2' and substitute '5'

Again, the government proposes to increase the maximum penalty for this offence from two years' imprisonment to five years' imprisonment as a result of the feedback on the bill from SAPOL. In addition, the offence as it is currently drafted, is a summary offence and SAPOL indicated they were concerned that this meant that there is a limitation of time within which charges must be laid. This means that if a person concealed human remains for two years, they could no longer be prosecuted for this offence. Therefore, the increase to the penalty serves two purposes: firstly, to indicate the serious nature of the offending and, secondly, to ensure that a person can be charged with the offence after a longer time period has elapsed.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 6 [Treasurer–1]—

Page 5, line 4 [clause 3, inserted section 179(4), penalty provision]—Delete '2' and substitute '5'

This amendment is consequential to an earlier one.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Leader of the Opposition) (18:28): I move:

That this bill be now read a third time.

Bill read a third time and passed.