Legislative Council: Tuesday, May 31, 2022



Criminal Law Consolidation (Human Remains) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 May 2022.)

The Hon. J.M.A. LENSINK (16:14): I rise to make some remarks in relation to this bill. I am pleased to be able to speak on behalf of the opposition and indicate that we will be supporting the Criminal Law Consolidation (Human Remains) Amendment Bill 2022. The bill creates, in the Criminal Law Consolidation Act 1935, four new offences for concealing a body.

A key element of most crimes is the concealing of evidence by lying or concealing evidence such as a weapon or a body. Currently, if an offender concealed a body in a murder or manslaughter case, this is considered during sentencing but may not always be specifically mentioned in sentencing remarks and any extra period or imprisonment given for the concealment is usually not specified. Given the concealment of a body can destroy vital evidence and is very distressing for the victim's family, there is a strong argument for improving the law in this area.

Following the introduction of a similar bill last parliamentary session, the former Liberal government consulted further with the DPP and SAPOL, which resulted in amendments that passed this place in February this year. Those amendments were to increase penalties for section 177 to 15 years, increase the penalty for section 178 to 15 years, and increase the penalties for section 179(1) and 179(4) to five years, and, secondly, where a person is convicted of a section 177, a separate cumulative penalty must be imposed.

The opposition is pleased to see that the government has progressed this bill with those previous amendments moved by the former Marshall Liberal government. With those remarks, I support the bill.

The Hon. R.A. SIMMS (16:15): I rise to support this bill on behalf of the Greens. The Greens believe that all South Australians have a right to a safe, peaceful and ecologically sustainable existence free from crime. It is really important that our justice system protects the cultural and social needs of families of victims of serious crimes. It is a despicable thing to conceal, to mutilate or to interfere with human remains. It is a truly heinous act.

The suffering faced by families of victims where the body has been concealed or defiled must be considered by this place. We need to consider that people have a right to enact their cultural and social burial practices without having to deal with the added trauma that comes with human remains being defiled or concealed or interfered with in some way.

This bill ensures that there are suitable offences for concealing, mutilating or otherwise interfering with human remains. We consider what has been proposed here by the government as being a plugging of a gap in our legislative regime in South Australia. We supported this bill when it was proposed by the then Leader of the Opposition in this place and we will be supporting the bill now that it has been proposed by the Labor Party in government.

The Hon. C. BONAROS (16:17): I rise to speak on behalf of SA-Best on the bill and indicate our support for the bill which, as we have heard, seeks to introduce new offences to close a legislative loophole in our criminal laws for crimes related to the disposal, concealment or interference with human remains and, in doing so, echo the sentiments just expressed by the Hon. Mr Simms. It is a truly unimaginable and heinous crime, let alone thought, that anyone would interfere with somebody's remains in any way.

It builds on the work of the Attorney-General, who introduced a similar bill while in opposition last year, though I note that the maximum penalties exceed the previous bill quite significantly. Recognising these very serious crimes in their own right has been at the top of the priority list of the Homicide Victims' Support Group for a number of years. I understand these new offences also have the wholehearted support of the Commissioner for Victims' Rights and SAPOL.

As I said, disposing of, concealing or mutilating a body can give a significant forensic advantage to an offender for completely heinous reasons. In some cases where an offender has been found guilty of manslaughter or murder, family and friends may never know what really happened to the deceased. They may be prevented the opportunity of laying to rest the body of their loved one or from seeing them for the last time, and that is an unimaginable thought for any of us.

The bill sets a maximum penalty of 15 years' imprisonment, up from 10 years in the previous bill, for concealing, mutilating or otherwise interfering with human remains. The court may impose a cumulative sentence on the head sentence of a person found guilty of causing the death of a person other than murder.

For a person found guilty of murder, mandatory life imprisonment itself cannot be interfered with, but destroying human remains to pervert the course of justice could be taken into account by the court in setting a non-parole period. It may also be extended if remains are found at a later date, even if that occurs after the person has faced the original charges and has been found guilty of those.

I have to admit, I was not aware before that previous bill was introduced that this was not an offence in South Australia. In fact, I was quite surprised by the fact it was not an offence and I think most of us would be forgiven for thinking that something so terrible does not already exist on our statute books, such is the logical nature of the changes that we are contemplating.

The bill also creates the offence of defiling human remains, and that will carry a maximum term of imprisonment of 15 years, up from five years in the previous bill. A further specific offence is created for failing to report finding human remains to a police officer as soon as is reasonably practicable, with some exceptions, such as reporting requirements already under the Aboriginal Heritage Act, or if a person believed it was already reported to the police or the Coroner.

The maximum penalty for failing to report has been raised from the previous bill from two years' to five years' imprisonment. There is also a provision for a judge or jury to find a defendant guilty of an alternative verdict if, for example, the mental element of the higher charge of destroying remains to pervert the course of justice is not made out. In that case, it will be open to the court to find the defendant guilty of the lesser charge of defiling human remains or failing to report.

The government filed a very sensible amendment last week to ensure section 178 replicated the physical conduct in section 177 to ensure a crime is still captured in the event the mental element could not be established. I understand there have been 28 examples where a body has been disposed of in South Australia since the year 2000. In speaking on the bill last year, my colleague the Hon. Frank Pangallo mentioned some of the cases, including the infamous bodies in the barrels murders and the horrible death of two year old Khandalyce Pearce-Stevenson, whose remains were found in a suitcase on the side of the road five years after her mother's body was located at the Belanglo State Forest in New South Wales.

In some cases, concealing the body has meant a person has been, as we have said, able to evade apprehension and has been freely living in the community, such as in the case of Geoffrey Adams, who murdered his wife and buried her under concrete in the backyard of the family home on Yorke Peninsula, evading detection for four entire decades.

My colleague also spoke of Daniel Hind, whose body was hidden in a wheelie bin for two months following his death in 2015. Investigators were denied valuable evidence that could have led to a murder conviction. Instead, his killer was sentenced to five years and 10 months non-parole for manslaughter. In his victim impact statement to the court at the time of his son's killer's sentencing, Mr Hind said:

Your blatant lies when arrested and utter disregard for Daniel after you killed him convinced me that you are a heartless human only driven by your own interests.

In addressing her son's killer, Mrs Hind said:

Mr Seymour you killed my eldest son. Not only did you do that, but you left him alone in the most horrific way. You disposed of him like he was nothing, like rubbish.

She went on to say:

You left Daniel for so long alone in that paddock while you continued on with your daily life, you took away the opportunity for me and the rest of Daniel's family to be able to look at him and say goodbye.

That really breaks my heart and I will never forgive you for that.

They are the sorts of wrongs that we are trying to address through this bill. It is clear these crimes compound the grief of the loved ones of the deceased and should be punishable in their own right. In relation to the penalties in this bill, I think it is fair to say we support sentences which reflect the seriousness of the crime and provide a strong deterrent for would-be offenders, noting the strong penalties in the Statutes Amendment (Child Sex Offences) Bill that passed this place last week, which we supported.

I will have some questions about the government's plan to fund our prison system should its modus operandi be to lift sentences across the board—if only it could be that simple. I look forward to hearing the government's plans to adequately resource our prisons. In the meantime, I indicate our support for this bill.

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (16:24): I thank honourable members for their contribution and indicated support for the bill. As has been outlined, there are two amendments to the bill that have been suggested by my department. The first one is a very simple typographical error where it said 'and' but ought to have said 'any' and the second one, as outlined by the Hon. Connie Bonaros, allows the proposed new section 180 to actually have proper effect by allowing for that alternative verdict. With that, I commend the bill to the chamber.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: The only contribution that I would make is in relation to the points that I made about funding our prison systems. There is no question that we are supporting stronger penalties where they are appropriate and we do so wholeheartedly, but the flipside to that is contemplating what the government's plans are for future funding of our prison systems to take into account those sentences and what plans this government has to address the adequate resourcing of our prisons.

The Hon. K.J. MAHER: I thank the honourable member for her question. I know that in the last four years, and certainly in the 16 years of the previous Labor government before that, there have been expansions in various of our prisons right around South Australia. I know if legislative change sees significantly more demand for places in prisons, and have in the past made those changes, I can seek from the corrections minister what are contingencies into the future, if they have them, and maybe get the minister to talk directly to the honourable member, if needed, about where plans might be in the future.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. K.J. MAHER: I move:

Amendment No 1 [AG–1]—

Page 3, line 12 [clause 3, inserted section 176(2)]—Delete 'and' and substitute 'or any'

As I outlined in my second reading sum-up, this simply deletes the word 'and' and puts in the word 'any'. It refers to 'any other act' and was a typographical error that I thank my department for spotting and changing.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 2 [AG–1]—

Page 4, lines 19 and 20 [clause 3, inserted section 178(a)]—Delete paragraph (a) and substitute:

(a) knowingly destroys, removes, conceals or alters human remains; or

(ab) knowingly mutilates or defiles human remains; or

Again, as I outlined, this imports language into section 178 so that it makes it clear that the provisions in the proposed section 180 being able to find an alternative verdict can be properly applied.

The Hon. J.M.A. LENSINK: Would the honourable member be able to expand on how this provision has some effect?

The Hon. K.J. MAHER: This amendment makes minor changes to the type of conduct that is covered by the offence in section 178, to correct an anomaly that was identified by my department. At present, the conduct of concealing, removing or altering human remains is not included or covered in the section 178 offence. That type of conduct is only covered in the section 177 offence.

Therefore, if a person is charged with the section 177 offence because they have concealed, removed or altered human remains but the mental element cannot be made out, that is, it cannot be satisfactorily proved it was for the purposes of perverting the course of justice as applied by section 177, the alternative verdict provision in section 80 may not be able to be used. This is because the type of conduct committed by the person concealing, removing or altering is not currently covered, or the words are not in section 178. Therefore, this amendment will absolutely ensure that knowingly concealing, removing or altering human remains is covered in section 178, allowing an alternative verdict to be used in accordance with section 180, where that is appropriate.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (16:30): I move:

That this bill be now read a third time.

Bill read a third time and passed.