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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-14 Daily Xml
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EVIDENCE (PROPENSITY EVIDENCE) AMENDMENT BILL

Introduction and First Reading

The Hon. D.G.E. HOOD (16:32): Obtained leave and introduced a bill for an act to amend the Evidence Act 1929. Read a first time.

Second Reading

The Hon. D.G.E. HOOD (16:32): I move:

That this bill be now read a second time.

Some time ago, I was approached by the family of a tragic murder victim, Shirree Turner. Members may remember the tragic tale of Shirree Turner. Her family asked me to introduce a bill in parliament regarding the use of propensity evidence in criminal trials. In fact, the father of Shirree Turner, Mr Ken Turner, is in the gallery today, and he has written a couple of books, one of which I have here. I would be happy to lend it to anyone who is interested. I commend those books to members.

Shirree Turner was tragically stabbed to death at an Oaklands Park reserve in 1993. A person by the name of Frank Mecuri was charged with the offence. At the time he was charged, Mecuri was actually serving a prison sentence in Victoria for the stabbing and attempted rape of another woman in very similar circumstances to Shirree's murder.

However, under the current South Australian propensity laws and, indeed, laws at that time as well, this evidence and the fact that he had been convicted on 48 prior occasions for other offences, including violent crimes with very similar facts, could not be used in his murder trial at all. Without the evidence of the prior offending, Frank Mecuri was acquitted of Shirree Turner's murder by a Supreme Court jury in 1998. After being acquitted, he went on to kill another woman, Rosemary Deagan, before committing suicide himself. It is a tremendously sad and frustrating case.

Mr Turner tells me that, about half way through the criminal trial, he became aware that the defendant had been in gaol for raping and stabbing another woman in Melbourne. Mr Turner was bewildered as to why they were never allowed to use this as evidence against Mecuri, and he was told that, if this information was leaked about the accused, it could actually result in a mistrial.

As a consequence, he and everybody else, including the witnesses, had to remain silent about Mr Mecuri's history, although they knew it well. How can a jury give a fair and honest verdict without having all the facts before it with respect to the accused?

Following the trial, I am told that a juror spoke to Mr Turner about the acquittal of Mecuri. The juror explained that he was living under extreme stress knowing that Mecuri went on to murder again. Mr Turner strongly believes that, if a bill along the lines of this similar fact evidence bill that I am introducing today was available in Shirree's case, the jury would likely have returned a guilty verdict and that his next victim would still be alive today.

Indeed, it was reported by Nigel Hunt in an article in the Sunday Mail in December 2007 as follows:

The man acquitted of the stabbing murder of Adelaide woman Shirree Turner has killed himself after murdering his partner. Career criminal Frank Mecuri shot himself in the head after shooting dead former de facto Rosemary Deagan in Melbourne last Saturday...

Ms Deagan had taken out a restraining order against Mecuri, 36, but he had been stalking her and finally ambushed her in her home. The murder-suicide, almost a decade after Mecuri's Supreme Court murder trial in Adelaide, has left Shirree Turner's father Ken 'shell shocked'.

'It brought me back to the time I had a phone call from the police when Shirree died' he said. 'It was a very, very similar feeling and I can't explain it in words. I'm absolutely devastated he has taken another woman's life needlessly and violently'.

Following the trial in Shirree's murder, one witness sent the following letter to the Attorney-General:

I am writing to you to urge you to look at changing the laws regarding similar fact evidence or propensity law.

In particular I am writing about the Shirree Turner case. I was a witness in the case against Frank Mecuri and was not allowed to say what sort of person he was, or what sort of crimes he had already committed. I was actually told that if I said anything bad about Frank's character or about the kinds of crimes he had committed previously, I would be in contempt of court and possibly gaoled myself.

I understand that everyone needs to have a fair trial when they go to court accused of a crime, especially if it is a serious crime. However the kinds of crimes that Frank had committed and was actually in gaol for at the time of his trial, were almost identical to the circumstances of Shirree's death, yet the jury was not allowed to hear of it. Why? I would understand this if the only previous crimes he had committed were robbing banks, stealing cars etc., but a lot of his crimes involved brutalising, attempted rape and murder/attempted murder of young women, like Shirree Turner.

I realise that there was not a lot of forensic evidence in this case, but there was absolutely enough evidence for the Magistrate system to go forward and try the case. I also realise that a lot of the witnesses in the case were hostile...I was one of the witnesses and was probably not as helpful as I could have been, or wanted to be. (I could give you reasons for this but I'm not making excuses for myself—at the end of the day, I am alive and able to live my life while Shirree and others do not have that luxury). I am far from being a saint, both then and now, but I wanted to do the right thing then and I certainly want to do the right thing now.

I still don't understand why the facts about Frank could not be brought up in the court to try to get some sort of justice for Shirree's family. To start with the case was not going to be based on much in the way of forensic evidence, I would have assumed that Frank's…traits and attitudes to women would at least have been mentioned in passing [at some stage]. Why was Shirree's name dragged through the dirt, but Frank was made out to be the most wonderful man in the world? Why was Shirree's family subjected to all of this, having to listen to what a hero and boon to humanity that Frank was made out to be, while Shirree's every bad decision was held up to scrutiny? How is that justice?

I would say that by now you would know that Frank has killed yet another woman who has children, family and friends left to mourn her and ask why did this have to happen. This monster has a huge history of this sort of thing—why was he not in jail? It is obvious that Frank was not a nice man, was not a functioning member of society and had learnt nothing from his mistakes and from the many chances given, yet was free to happily skip through his life causing distress to all who were unfortunate enough to come into contact with him.

I was unfortunate enough to know Frank Mercuri personally as he was a part of the group of friends that I hung around with at the time. I can tell you personally about the hatred he radiated towards women, almost like a force-field and I can tell you personally that he was far from a nice person. It is not just me waging a hate campaign against Frank, as much as I detested him. Not one of the other girls in our group could tolerate him either.

The letter goes on to say:

We never discussed this until after the Shirree Turner case and it was amazing that all of us had exactly the same bad feelings about Frank, as though we could feel the evil that he put out, I'm sure you will think that that is just me being melodramatic, but you honestly had to know Frank from a female perspective to understand it. He palpably radiated hatred towards women. And I can only put it into inadequate words by saying that he seemed like he could break a baby's arm and smile while he did it.

Please, please, please rethink the way the law works in cases like this, where similar crimes have been committed by a person on trial for the same sort of crime. If the jury that tried Frank had maybe just one of these facts about him, Rosemary Deagan and perhaps others we don't know about could be alive today. Thank you for your time.

That is the end of the letter.

To the Attorney-General's credit, when Ken and Lesley Turner published a book about their experiences, entitled The Power of Forgiveness, which I have here, he attended, and spoke some kind and understanding words. He also acknowledged that the system needed improvement.

After the acquittal of Frank Mercuri, Justice Mullighan, the presiding judge, out of concern invited Mr Turner to his chambers to meet with him. I understand that it is probably unusual for judges to invite victim's families to their chambers after a trial, but I think this demonstrates something of Justice Mullighan's compassion and humanity, of which those who have met him would be acutely aware. One of the major concerns talked about by Mr Turner and the judge during that meeting was that some of the evidence was only circumstantial, and there was a difficulty in securing a conviction without similar prior offending to paint a picture and explain the defendant's actions on the night. It seemed that, although the defendant could criticise the victim's character, nothing could be said against his character.

I note that, save for some issues raised in section 18(d) of the Evidence Act, South Australia is primarily reliant on common law to exclude evidence of propensity. Other states—including New South Wales under section 101 of its Evidence Act, and Tasmania under section 101 of its Evidence Act—as well as the commonwealth (again, in section 101 of the commonwealth Evidence Act) do have legislative provisions. The New South Wales provision (Tasmania's is very similar) reads:

Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

While on the face of it the New South Wales wording would appear to allow propensity evidence in cases where the probative value is high, I understand that propensity evidence is nevertheless rarely allowed in New South Wales, given the High Court judgment of Pfennig v The Queen (1995), volume 182 of the Commonwealth Law Reports at page 461, and other cases.

I have legal advice that one problem in the current law is the large number of sometimes conflicting common law propositions on the issue. The case law with respect to the propensity issue is sometimes contradictory, and various cases are difficult for trial judges to reconcile. On one case rule 'a strong degree of probative force' is required before such evidence can be adduced; on another rule, the evidence must have 'a really material bearing on the issues to be decided.' In another case it was decided that the evidence needed to be of 'such probative force in the instanced case that it would be an affront to common sense not to admit it,' or be so probative that there is no 'rational view of the evidence test that is inconsistent with the guilt of the accused.'

Given the wide array of differently phrased and often contradictory approaches to the issue of propensity, one commentary, the Laws of Australia, remarks that 'it is not possible at present to formulate a clear High Court position.' Family First is of the opinion that confusion regarding the actual law regarding propensity is resulting in a tendency by trial judges today to deny even reasonable attempts to allow propensity evidence in this state so as to avoid points of appeal.

So, what does this bill do? The substantive wording found in clause 4 provides:

Propensity evidence relevant to facts in issue in proceedings relating to a major indictable offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.

There is nothing exceptionally controversial in the wording, and it is restricted to major indictable matters.

Section 398A of the Victorian Crimes Act 1958 uses almost identical wording, which permits a wider range of propensity evidence to be admissible than is otherwise the case under South Australian common-law rules. So, just to be clear, Victoria has very similar law and very similar wording and in fact goes much further than what I am proposing today.

The common law precedent discussed in the case of Pfennig prevents the admission of evidence where there is a reasonable view of the propensity evidence consistent with innocence. The wording used in Victoria and in clause 4(2) of this bill makes that reasonable view irrelevant to admissibility; therefore, disclosure will be made in cases where Pfennig would have prevented it. Subsection (3) allows the reasonable view on innocence to be factored in at the weight stage—that is, the jury gets the evidence and then assesses its weight depending on acceptance of the innocent view or explanation.

Instances where prior criminal records are fully admissible will remain rare. Subsection (1) will give a judge a wide discretion to admit evidence where 'in all the circumstances it is just to admit it.' The test moves towards favouring disclosure of the propensity evidence and leaving its weight to the jury. This will differ on a case by case basis but, in a matter where there are many similar prior convictions for violence of a particular sort against the same demographic with similar facts, then admission of such convictions and the facts will be more probable than under current law.

These provisions are discussed in more detail in R v Best, a 1998 case of the Supreme Court of Appeal of Victoria. This bill has been introduced as a result of a tragedy that has affected the Turner family and anyone who has come into contact with them. I believe it is their intention to see some good come from that tragedy. The Turner family were strong advocates of the double jeopardy bill that the Attorney-General introduced last year, and I thank them for requesting and supporting the introduction of this particular legislative proposal. I also wish them the very best as they continue to live through the tragedy that has no doubt impacted their life so devastatingly. For the sake of the Turner family and other families that face similar devastating situations like them, I ask that members give this bill serious consideration.

Debate adjourned on motion of Hon. J.M. Gazzola.

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