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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-09-08 Daily Xml
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Bills

Criminal Law Consolidation (Human Remains) Amendment Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (16:54): I move:

That this bill be now read a second time.

The bill I introduce today is the Criminal Law Consolidation (Human Remains) Amendment Bill 2022. The bill amends the Criminal Law Consolidation Act 1935 to introduce four new offences relating to concealing, mutilating or interfering with human remains.

When the body of the victim is concealed, mutilated, or otherwise interfered with, this can provide significant forensic advantage to the victim's killer, potentially depriving investigators and the prosecution of evidence. The absence of such evidence could make it difficult or impossible to identify offenders, lead to lesser charges being laid, or give rise to false claims that the cause of death was by accident or suicide. This is not to mention the needless suffering caused to the families of loved ones left behind.

The bill that has been introduced today creates four new criminal offences. The first offence relates to the destruction, concealment or alteration of human remains for the purposes of concealing an offence or to influence legal proceedings. Under this bill, that new offence will carry a maximum of 15 years in prison. Where the offender has also caused the death of the victim, this penalty will be served in addition to any other penalty that has been imposed, noting that a cumulative penalty cannot be imposed on a person who has received a life sentence. In those cases, the additional offending would affect the non-parole period the court decides to set.

The second new offence relates to concealing or defiling human remains, regardless of the purpose. Defiling may include the destruction or mutilation of remains along with the removal of body parts or sexual activity. This will also carry a maximum penalty of 15 years in prison.

The third new offence relates to the failure to report the finding of human remains unless the person reasonably believes that it has already been reported or is covered under other legislation; for example, the Coroners Act 2003 or the Aboriginal Heritage Act 1988. This offence will carry a maximum penalty of five years in prison.

The fourth offence provides that a person commits an offence if they find human remains and then act to conceal them. This offence carries a maximum penalty of five years in prison. The bill also includes provisions for a jury to deliver an alternative verdict where a particular offence cannot be proved beyond reasonable doubt, but a lesser offence can.

There is broad community support for tougher laws to deal with people who act to cover up crimes that cause death or who do not show respect for the dead. It is a sad situation that these laws are needed, but we absolutely owe it to the victims and their loved ones to show them due respect and to ensure that those who do commit crimes face justice for their actions. I commend this bill to the chamber, and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Insertion of Part 6D

This clause inserts new Part 6D into the principal Act as follows:

Part 6D—Offences relating to human remains

175—Interpretation

This section defines terms used in the new Part.

176—Application of Part

This section sets out the relationship between the new Part and other Acts and laws.

177—Offence to destroy etc human remains to pervert course of justice

This section creates an offence for a person to knowingly take the actions referred to in subsection (1)(a) and (b) for a purpose referred to in the remainder of the subsection, with those purposes essentially amounting to perverting the course of justice. The maximum penalty for an offence is 15 years imprisonment. The proposed section also makes procedural provisions in relation to the new offence.

178—Offence to defile etc human remains

This section creates an offence for a person to take specified actions amounting to unlawful interference with human remains, including destroying, removing or engaging in sexual activity with the remains. The maximum penalty for an offence is 15 years imprisonment.

179—Offence to fail to report find of or conceal human remains

This section creates an offence for a person who finds human remains, or remains that the person suspects are human remains, to fail to report that fact to police. The maximum penalty for an offence is 5 years imprisonment. Proposed subsection (2) sets out circumstances in which such a report is not necessary. The clause also requires police to notify the State Coroner on receipt of such a report.

180—Alternative verdicts

This section sets out a scheme for alternative verdicts where a charge of a particular offence under the proposed Part is not made out, but a lesser offence is.

Mr TEAGUE (Heysen) (16:58): I indicate that I am the lead speaker on behalf of the opposition and at the outset also indicate that we will be supporting the passage of the bill, coming along as it does from another place. It is another example of a bill that had worked its way through part of the process in the previous parliament and had been the subject of consideration.

I am pleased to say that, as the result of both its initial introduction and debate and then some subsequent meritorious amendments introduced by my predecessor in the course of that debate, all of which has been included in this bill that has been passed by the other place and now presented here, the bill brings forward a meritorious group of new offences to be now inserted into the Criminal Law Consolidation Act. I might just take the opportunity to reflect on one of them in particular and then the overall context. I am conscious of the remarks of the Attorney in another place earlier this year and I refer to those and adopt them.

There are four new offences, and they really go to address the inadequate circumstance that was identified in far too many cases, where an offender who is convicted of murder or manslaughter as a result of trial and a whole lot of evidence as led, including in relation to the concealment of a body, and both the inadequacy of the consequence for that action and an appreciation of the difficulty that might have arisen for authorities in endeavouring to identify the evidence necessary to bring charges—possibly against a co-accused—that those actions to conceal a body or to otherwise interfere with a body result in.

This bill recognises what is well established, but previously and not so far adequately provided for in the legislation, that concealing or otherwise interfering with a body is conduct that is seriously at odds and ought to be recognised by the discrete offences that are the subject of the bill. As I have indicated, the concealment, mutilation and otherwise interference with remains can have the effect of destroying evidence, and that conduct can, among other things and perhaps chiefly, be particularly distressing for those loved ones of a victim, where the victim's family is navigating already the most difficult of circumstances.

To then be having to deal with conduct that might be designed to serve the interests of the offender in evading justice has such multiplying effects in terms of the grief and hardship that is endured by those loved ones of a victim. There is a compelling argument for provision improving the law in the area and that is what the bill is doing. As I indicated at the outset, a similar bill was introduced in the course of the last parliamentary session. As a result, it was introduced as a private member's bill in the last parliament.

The former government took the opportunity to engage with DPP and SAPOL. In significant measure, the result of that consultation was the amendments that were introduced at that time. They are, in summary, an extension of the maximum penalties in respect of those offences and importantly, in part, so as to render the offence no longer a summary offence requiring prosecution within a particular short period of time to becoming an indictable offence and thereby able to be prosecuted at a time more practical in the circumstances of often related offending that might constitute charges of murder or manslaughter. I am pleased that those amendments have already been incorporated in the bill as it has come from the other place.

Apart from the extension to the maximum penalties—and they are, in particular, in relation to the destruction of remains and the defiling of remains, for each of which the maximum penalty becomes 15 years pursuant to new sections 177 and 178 respectively—the offences that are the subject of section 179, that is the related offences of failing to report having found remains and alternatively the concealing of remains, are now, I am pleased to say, provided for by maximum penalties in what will be section 179 in the new part 6D of five years, firstly in respect of the finding of remains and the subsequent failure to report that fact to a police officer and, secondly, the failure to inform the police officer of the location of those remains. That is no longer a summary offence and that is a good development.

In relation to the finding of remains and subsequent concealing of them, the offence in what will be section 179(4), the maximum penalty similarly becomes five years and no longer is it a summary offence; that is where having found human remains, or something that someone reasonably suspects to be human remains, a person conceals those remains. Those are offences that stand alone from what might otherwise be offences connected to other offending, such as murder or manslaughter in particular.

The other amendment of significance that it is good to remind the house about is the change in what will be section 177(2), which is a provision as to sentencing, which now specifically requires that in sentencing for an offence against section 177, where the person is also found guilty of causing the death, the court must direct that the sentence for that section 177 offending be cumulative on any sentence of imprisonment or detention, other than a sentence of life imprisonment in relation to the causing of the death.

That is so as to ensure that offending of this character is dealt with as standalone offending that is serious and freestanding, acknowledging that it will often be charged conduct that is associated with other serious offending. Without that provision requiring cumulative sentencing in this regard, there is the possibility that it may not otherwise be caught up.

I said at the outset that the law, as it presently stands in this regard, is of potentially practical similar effect in that the conduct that might relate to concealment or mutilation, defiling or otherwise offensive conduct in relation to human remains might find its way into being the subject of submissions in sentencing, but it is not otherwise separately defined.

It is not necessarily addressed explicitly either in the course of submissions or in the course of the sentencing process, so what we have now with the introduction of this new part 6D of the act will be a discrete group of offences that will make it clear that both the perpetrator of serious crime—primarily, manslaughter and murder—and those who would otherwise fail to report, or conceal, will be committing serious offences.

I sincerely trust that, and it is the feedback, the result of consultation, these serious consequences being known will reduce the prevalence of conduct that would otherwise make prosecution more difficult. That will in turn reduce—and I trust that this is the result over time—what is already an unfathomable trauma for those associated with victims in these circumstances, so in that small way it may make a contribution in that regard. Importantly, there is the real consequence that awaits those who would take up this offensive conduct.

So no more will there be a relative vagueness or gap in the law when it comes to the destruction of human remains in relation to the justice process. No more will there be a similar gap when it comes to defiling and other offensive conduct in relation to such remains, and no more will there be uncertainty or a gap in relation to the failure to report or otherwise conceal, that is otherwise isolated from other offending.

It would be remiss of me not to note that by this bill we also make clear that there is express capacity pursuant to what will be section 184, alternative verdicts to be returned, in the event that particularly a 177 offence is not able to be established beyond a reasonable doubt. The alternative that may be presented to a jury or a judge alone is that a 178 or 179 offence might be established.

It is a relatively confined reform in this area. Importantly, it impacts directly upon the serious offences of murder and manslaughter. It will have more work to do across the board from time to time and it will, again, I stress, improve the risk and circumstances that are faced by those who are loved and otherwise close to victims of such crimes. With those words, I again indicate the opposition's support for the bill and commend it to the house.

Ms HUTCHESSON (Waite) (17:17): I rise in support of this bill. I can only imagine what families of missing people go through. It is horrible enough to lose a loved one under any circumstances, but if it is a violent death it is worse, and worse again if the body is not recovered. The family sit around waiting for a call that sometimes never comes. They may see media stories about remains being found, and hope to receive the news so that they can have some closure, an opportunity to say goodbye and to lay their loved one to rest.

Those who have been waiting for a long time have to relive the trauma every time remains are found, hoping it is their loved one, hoping they will receive the call but, sadly, it is not often the case. We currently do not have a specific offence in South Australia that prohibits a person from concealing or interfering with human remains. It can take years, if not decades, for the murderer to come clean about the fact that they committed the crime in the first place, and to reveal where the remains are hidden. These are years that go by whilst families have no answers.

Further to this, when their loved ones are found the heartbreak is already overwhelming, but to discover that the body has been mutilated or interfered with just adds to the grief. This is certainly a gruesome topic to debate, but as a government we made a commitment to introduce this bill and, after advocacy from the families of victims, we are doing it. The proposed changes will mean offenders no longer benefit from hiding a body, which can significantly impact the criminal investigation process by destroying valuable forensic evidence.

The Criminal Law Consolidation (Human Remains) Amendment Bill 2022 introduces four new offences into the Criminal Law Consolidation Act 1935 (CLCA). The bill is substantially the same as a private member's bill introduced in the last parliamentary term where maximum penalties were increased by government amendment. The offences introduced by the bill are as follows. It will be an offence to conceal, mutilate, or otherwise interfere with human remains where the intended or actual outcome is that the remains are more difficult to find, or to conceal the commission of an offence, with a maximum penalty of 15 years' imprisonment.

Where the offence itself under this section is committed by the person who caused the death of a victim, the penalty for this offence will be served cumulatively unless there is a life sentence already given. It should be noted that in accordance with the Sentencing Act, a cumulative sentence cannot be imposed on a person who has received a sentence of life, but the additional offending will be taken into account by the court in setting an appropriate non-parole period that must be served by the offender.

There is a more general offence of concealing, mutilating or otherwise interfering with human remains, with a maximum penalty of 15 years' imprisonment, and it is now also an offence if a person finds human remains or what they suspect to be human remains and fails to report it to the police. The maximum penalty for this is five years' imprisonment. Lastly, an offence of finding human remains and then acting to conceal those remains has been introduced, with a maximum penalty of five years' imprisonment.

These new offences will ensure offenders who have already murdered someone's loved one will face further charges if they conceal the body of a victim. Those deliberately adding to the pain and suffering of families by taking steps to conceal a body will be able to be charged with a specific offence, which will go some way to acknowledging the additional suffering of victims' families. Whilst this bill will not take the pain away and will not bring loved ones back, it will punish those who choose to commit such a heinous crime, and as such I commend the bill to the house.

S.E. ANDREWS (Gibson) (17:20): Today, I rise in support of the government's Criminal Law Consolidation (Human Remains) Amendment Bill 2022. This bill is important as it criminalises the act of interfering with or concealing human remains. Human remains can play an important role in a criminal investigation.

There were 261 homicide incidents in Australia between 1 July 2019 and 30 June 2020, with 278 victims and 314 identified offenders. This is the highest number of homicide incidents in 15 years, according to the National Homicide Monitoring Program. I think members would agree this is a concerning statistic, and we need to do all we can as a community to watch for activities that concern us as citizens and report them to relevant authorities.

Since 2000, there have been at least 28 homicides in South Australia where the body has been disposed of. I am unable to comprehend the devastation that would be felt by losing a loved one through murder. I cannot imagine the anger or selfishness required to take the life of a fellow human. Anyone would struggle if their friend or family member goes missing for a day, a week or months, but to know that someone you care about has been taken from you and you never see them again must be unimaginable.

That a person can take a life and then hide the body or, even worse, that your loved one's remains have been spoiled beyond recognition, to have to await the outcome of forensic testing to find out if it is your loved one who has been found, is beyond tragic. This heartache is something that we as legislators have the power to mitigate to support the families and friends of victims whose bodies have been hidden or mutilated. It is our responsibility to give our police and scientists every avenue to seek some solace for family members.

The changes to the Criminal Law Consolidation Act that are proposed by this bill will mean offenders no longer benefit from hiding a body, which can significantly impact the criminal investigation process by destroying valuable forensic evidence, evidence that may have been used to strengthen the case against an accused person in court. This bill creates an offence of concealing, mutilating or otherwise interfering with human remains where the intended or actual outcome is that the remains are more difficult to find or to conceal the commission of an offence, with a maximum penalty of 15 years' imprisonment.

Where the offence is committed by the person who caused the death of the victim, the penalty for this offence will be served cumulatively on top of any other sentence the offender has received for causing the death of the victim. The only exception will be where they have already received a sentence of life imprisonment.

However, under the changes that this government is committed to making in this bill, an offender does not need to have been the killer or accused killer of the deceased for them to be prosecuted for interfering with or concealing human remains. Sadly, there are people who will assist those who kill others to conceal the remains or mutilate them, either with the offender or, once the homicide has been committed, to protect the offender. That is why this bill introduces a more general offence of concealing, mutilating or otherwise interfering with human remains, with a maximum penalty of 15 years' imprisonment.

If someone finds human remains, or what they suspect to be human remains, and fails to report this to police, they will have committed an offence with a maximum penalty of five years' imprisonment. This bill also creates an offence of, once finding human remains, acting to conceal those remains, with a maximum penalty of five years' imprisonment.

It is distressing that legislation such as this needs to be introduced, but unfortunately on many occasions we see cases on the news where the actions being criminalised in this bill have occurred where people deny loved ones the chance to say goodbye. Losing a loved one to murder or manslaughter must be extremely traumatic. When the remains of a loved one cannot be found or are not found for some time, it prolongs the grief, suffering and uncertainty for the loved ones of victims.

The members in the other place who have already spoken on this bill have outlined the devastating firsthand accounts of the pain felt by the families of victims when the remains of their loved ones are not able to be located. The families of Daniel Hind and Allison Nitschke have been advocates for reform in this area. These families are not able to say goodbye in the same way many of us who have experienced loss are able to say goodbye. These families often experience additional and unnecessary trauma while waiting for the body of their loved one to be located and identified.

Labor is committed to changing this and delivering on another election commitment—listening to the families of victims who are unable to properly say goodbye. In the recent state budget, this government delivered on our commitment to increase funding to victim support services. The Malinauskas Labor government will provide $500,000 per year from 2022-23, a total of $2 million in additional funding to improve support services for victims of crime. The Victim Support Service embraces diversity and eliminates all forms of discrimination in the provision of their services. It welcomes all people irrespective of culture, faith, sexual orientation and gender identity.

I would also like to take this opportunity to recognise the work of the Homicide Victims' Support Group. This support group assists those who have suffered the loss of a family member or friend through homicide. It joins people together to share and support one another through the unique challenges faced by those who have lost a loved one in this way. This is important as only those who have suffered this terrible loss can understand truly the feelings and needs of people whose loved ones' lives have been prematurely ended by another.

I am unable to comprehend the devastation that would be felt by losing a loved one in this way and my thoughts are with all the families that have experienced this. It is my hope that this bill assists those affected by a crime like this, that the bill leads to increased reporting of found human remains and that our hardworking investigators are assisted in their pursuit of the truth in homicide cases. I commend this bill to the house.

Ms SAVVAS (Newland) (17:28): I am proud to support this bill today and believe that it will have a significant impact on the lives of many South Australians, particularly those who have tragically lost a loved one to murder. The member for Gibson touched on the over 200 lives lost to murder between 2019 and 2020 and the concerning fact that this statistic has increased significantly in the last few years.

Although it has not touched my life personally, murder has touched the life of my own family in significant ways. My dad's cousin was murdered in the nineties, a crime that is still unsolved, and in a very high-profile case, my mum's childhood best friend and next door neighbour, Louise Bell, was murdered in the eighties, with no conviction recorded until I was in law school some 30 years later. Both murders have affected my parents' lives in quite traumatic and significant ways and, although I do not necessarily understand the impacts personally, I have seen the ways that these traumatic offences have affected my family members and people close to me.

Until now there have been no specific amendments prohibiting a person from interference with human remains. These changes will mean that offenders no longer benefit from hiding a body, not only hindering the criminal investigation process but also further adding to the unspeakable grief of families who are unable to say goodbye to their loved ones. This was an election commitment and one that I was proud of at the time of its announcement and am just as proud of today.

Personally, I studied law at the University of Adelaide and fully intended going into criminal law post university studies. I spent some years working and completing clerkships at criminal law firms and, although I learnt a lot in that time, I was also confronted with some particularly confronting crimes.

The Criminal Law Consolidation (Human Remains) Amendment Bill introduces four new offences into the act. The bill is of course substantially the same as a private member's bill introduced in the last parliamentary term, where maximum penalties were increased. These offences introduced include the offence of concealing, mutilating or otherwise interfering with human remains where the intended or actual outcome is that the remains are more difficult to find, or to conceal the commission of an offence, with a maximum penalty of 15 years' imprisonment.

This means in practice that an offender or an accessory cannot conceal or mutilate the remains in order to conceal that evidence, whether that be to prevent an outcome or to have an effect on their own sentence. It also ensures that, where the offence in this section is committed by the person who also caused the death, the penalty will be served cumulatively on top of any other sentence the offender has received for causing the death.

This is significant and will have implications for the criminal justice process, encouraging offenders to cooperate with the prosecution for the benefit of not only our system but assisting in the closure process for grieving families. Although the sentence cannot be imposed on a person who has received a sentence of life imprisonment, the passage of this bill will require that the court consider the additional offending when taking into account non-parole periods for those serving those sentences.

Although it cannot provide full solace for these families, it will provide some small amount of solace for loved ones grieving a horrendous circumstance that has occurred in their own lives. It will also ensure that offenders who deliberately add to the pain and suffering will be charged accordingly, and it acknowledges in some small part the atrocity of doing so.

I would like to acknowledge the role of others in that process, ensuring that the offenders need not be the killer for them to be prosecuted. I would like to thank all those who have been advocates for reform in this area, particularly the Homicide Victims' Support Group and the Commissioner for Victims' Rights. I commend the bill to the house.

Debate adjourned on motion of Mr Odenwalder.

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