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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-09-11 Daily Xml
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EVIDENCE (DISCREDITABLE CONDUCT) AMENDMENT BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (12:09): Obtained leave and introduced a bill for an act to amend the Evidence Act 1929. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (12:09): 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.

The Evidence (Discreditable Conduct) Amendment Act 2011 ('the 2011 Act') made changes to the Evidence Act 1929 (SA) governing the use of discreditable conduct evidence in criminal proceedings. The Act passed with all party support following an extensive consultation process and commenced on 1 June 2012.

The Act was intended to simplify what had become a complex area of the 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 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 the practice in the Uniform Evidence Act jurisdictions. The UEA requires the prosecution to give written notice of its intention to use either propensity or similar fact evidence, but importantly does not require written notice of a party's intention to use discreditable conduct for other purposes.

The extension of the notice requirement in the South Australian legislation is not practical. The definition of discreditable conduct captures a vast amount of evidence. This is a type of evidence that is commonly used in court, and in the majority of cases for a purpose other than to establish a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue (in other words, for propensity or similar fact purposes). It is impractical that the use of discreditable conduct evidence for purposes other than a propensity or similar fact purpose be the subject of prior written notice; this was not the intent of the 2011 Act.

The Evidence (Discreditable Conduct) Amendment Bill 2013 will bring the South Australian regime in line with the UEA jurisdictions. Notice will only be required when the party intends lead the evidence to establish a particular propensity or disposition of the defendant as circumstantial of a fact in issue.

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—Amendment of section 34P—Evidence of discreditable conduct

This clause amends section 34P, with the effect that discreditable conduct evidence can be led for certain purposes without prior written notice being given by the party seeking to adduce the evidence.

Debate adjourned on motion of Mr Pederick.

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