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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-13 Daily Xml
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EVIDENCE (DISCREDITABLE CONDUCT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 26 July 2011.)

The Hon. S.G. WADE (16:51): I rise on behalf of the opposition to address the Evidence (Discreditable Conduct) Amendment Bill 2011. The bill amends the Evidence Act 1929 to allow a criminal court to hear evidence of the prior acts and convictions of an accused. As the law currently stands, evidence of bad character or criminal conduct not related to the charge cannot be admitted without being subjected to the exclusionary rule and the R v Pfennig admissibility test. The Pfennig test has been heavily criticised as being technical, complex and too restrictive. It raises the bar too high and can, in effect, exclude highly reliable and probative evidence.

In South Australia, there have been some high-profile cases relating to propensity evidence. In particular, members would recall the case of Frank Mercuri. Frank Mercuri was acquitted in 1998 for the 1993 stabbing murder of Shirree Turner at an Oaklands Park reserve. After the acquittal it was revealed that Mercuri had previously been convicted of the stabbing and attempted rape of a woman in Victoria in very similar circumstances to Ms Turner's murder.

Victims' advocates argued that this information should have been put before the jury at Mercuri's trial in South Australia. However, this evidence as well as evidence of Mercuri's 48 prior convictions, which included crimes of similar facts, could not be presented at his murder trial under South Australian propensity laws. Without the evidence of the prior offending, Frank Mercuri 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, in 2007 before committing suicide himself.

As a result of the case, the Hon. Dennis Hood introduced the Evidence (Propensity Evidence) Amendment Bill in October 2009 following approaches by the Turner family. He submitted that the bill used similar wording to the Victorian Crimes Act 1958 and would increase the prospect of propensity evidence being used.

Reform in this area is not without risks as evidence may unfairly prejudice the jury against the defendant. As David Hamer put it in the Criminal Law Journal, the risk is that 'evidence showing a defendant's propensity for reprehensible behaviour may be given too much weight and the jury may convict on an insufficiently strong case'. I share the concerns of legal experts who consider that the introduction of legislation should be done with great caution to avoid jeopardising an accused's right to a fair trial. Mr Ralph Bonig, the President of the Law Society, has highlighted this concern by saying, 'the danger is that if you just introduced this similar fact or propensity evidence just for the sake of it...that may influence a jury or judge (and) that goes against the presumption of innocence.'

Fundamentally, it is important to stand by the time-honoured principle of the law of England and Australia expounded in R v Ball that you cannot convict a man of one crime by proving that he had committed some other crime. Defendants should not be convicted on bad character or on the fact that they have been guilty of a similar crime in the past.

At the 2010 election, the Australian Labor Party promised to amend the Evidence Act to 'codify and improve the law as it deals with similar fact evidence, propensity evidence and evidence of uncharged acts'. This formed part of the Labor Party's serious crime policy 2010. A press release of 7 March 2010 entitled 'Labor crime policy targets serious offenders' read in part:

Premier Mike Rann, in releasing Labor's serious crime policy, says that as part of the raft of reforms the government will overturn the notion that juries are not entitled to hear details of an offender's past prior to conviction.

It went on later in the release to say:

A re-elected Rann Labor government will change the law to allow juries in appropriate cases to hear evidence of relevant prior criminal behaviour and offending by the accused.

However, less than a year later the Attorney-General stated:

The election commitment does not overturn or displace this principle [that you cannot convict on one crime by proving another] as much as it modifies it in order to arrive at a fair and workable model.

Clearly in the Premier's March press release the Labor Party had committed specifically to overturn and change the law in this area, yet less than a year later the Attorney-General specifically disputes that the government is doing that. I believe there is currently confusion and uncertainty in the common law about the admissibility and use of this type of evidence. Legal principles are important; however, I accept the amendments are appropriate to clarify the common law as it applies in South Australia.

A number of jurisdictions have attempted to clarify the admissibility of propensity evidence. In Western Australia the Evidence Act makes propensity and relationship evidence admissible if the court considers the significant probity value outweighs the risk of an unfair trial and 'fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial'.

In Victoria the Crimes Act 1958 makes propensity evidence admissible if it is relevant to the facts in issue of the case under consideration if the court considered it is just to admit the evidence despite its prejudicial effect. The broad drafting of the provision permits evidence of past crimes or discreditable conduct, even if it is unrelated to the current offence, as long as the judge thought it was relevant and just to do so.

In the context of these and other provisions I accept that the South Australian formulation encapsulated in this bill is cautious and appropriate. My consultation with lawyers has highlighted to me their sensitivity to the need to protect legal rights, and I share their concern. I am of the view that this bill strikes an appropriate balance and does not unnecessarily lower the threshold for the receipt of evidence in South Australian courts.

However, that mere fact leaves open the question of whether or not the Labor Party has honoured its election promise in this bill. From the comments of the Attorney-General I believe they have broken their election promise to overturn and change the law in this area. So, as we wait for the enthronement of premier Jay Weatherill, we will watch with interest at what other parts of the Atkinson/Rann law and order heritage will be jettisoned by the incoming premier Weatherill and Attorney-General Rau. Having made those comments, the opposition supports the bill.

The Hon. A. BRESSINGTON (16:58): I rise very briefly to indicate my support for the Evidence (Discreditable Conduct) Amendment Bill, which from my reading and the advice I have received I understand is simply codification of the existing common law concerning propensity evidence. Everyone to whom I have spoken concerning this bill has been keen to tell me about their initial concerns following the Premier's sound bite announcement in March 2010 in the lead-up to the election. Many in the legal profession saw the potential for the bill, based on this announcement, not only to encroach on the rights of defendants but also to expose victims or prosecution witnesses to having their past conduct put to the jury.

Based on the announcement many saw an already convoluted area of law becoming more confusing. However, having since seen the bill, all have concluded that the bill before us is a retreat from the Premier's suggested reform and now simply codifies (or as one member of the legal profession put it, eloquently codifies) the common law and hence has their support. The bill also has the support of the Joint Courts Criminal Legislation Committee which, as the Attorney-General proudly quoted, states:

The simplicity of the bill stands in stark contrast to the present mess. We think it has merit. There is nothing in the wording which requires further comment.

Having had no concerns raised with me by any of the usual interested parties, the bill has my support.

The Hon. D.G.E. HOOD (17:00): I rise to indicate Family First's support for this bill. As the Hon. Mr Wade pointed out, two years ago I introduced a private member's bill into this place entitled the Evidence (Propensity Evidence) Amendment Bill 2009, which sought to do similar things to the bill before us today.

I had been approached by the family of Shirree Turner asking me to introduce a bill in parliament regarding the use of propensity evidence in criminal trials. As I recounted at the time, Shirree Turner was, unfortunately, murdered in an Oaklands Park reserve in 1993. A repeat offender by the name of Frank Mercuri was charged with the offence. At the time he was charged, Mercuri was serving a prison sentence in Victoria for the stabbing of another person in similar circumstances.

However, as I noted at the time, under current South Australian propensity laws, this evidence and the fact that the defendant 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. Without the evidence of the prior offending, Frank Mercuri 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 Deegan, before committing suicide.

As I noted then, it was a tremendously sad and frustrating case. Following the trial, one witness actually sent a letter to the Attorney-General. This is a witness from the trial who sent a letter to the Attorney-General, which I have mentioned previously. I would like to read the letter in full. It is not particularly long, but I think it is significant. It states:

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

[In fact] I am writing about the Shirree Turner case. I was a witness in the case against Frank Mercuri 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 kind of crimes he committed previously, I would be in contempt if court and possibly jailed 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 jail 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 it. WHY? I would understand this if the only previous crimes he committed were robbing banks, stealing cars, etc., but a lot of his crimes involved brutalising, attempted rape and attempted murder...of young women like Shirree Turner.

I realise that there was not a lot of forensic evidence in the case, but there was obviously enough evidence for the Magistrate system to go forward and trial the case. I also realise that a lot of the witnesses in the case were hostile and changed their stories. 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 am 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 court to try to get some 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 wonderful traits and attributes to women would at least have been mentioned in passing. 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?

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 those facts about him, Rosemary Deegan and perhaps others we don't know about could be alive today.

That is the end of the letter, Mr President, but I think you would agree it is a very pertinent letter and very emotional and absolute common sense.

I was happy to put this particular issue on the agenda for the Turner family a couple of years ago, having brought it to the parliament's attention by the way of a Family First bill and also in correspondence to the attorney-general. I would like to take this opportunity to thank the former and present attorneys-general for listening to these concerns on this issue and for moving to improve the law in this regard.

The Attorney-General has now stated his acknowledgement that the present law is overly restrictive, complex and unsatisfactory. In my view, it is also contradictory in some parts. Perhaps our most comprehensive legal commentary, the Laws of Australia, makes the comment that 'it is not possible at present to formulate a clear High Court position' on the issue of propensity. Indeed, as I have noted on a number of occasions, the case law with respect to propensity evidence is difficult to reconcile.

One case has ruled that 'a strong degree of probative force' is required before propensity 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 instant 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'. This bill gives our judiciary a clear framework to resolve issues relating to propensity. The current system, I believe, is failing the people it seeks to protect.

Looking at this bill in more detail, a number of specific reforms have been flagged. On the one hand, offenders are protected from the inference that prior offending implies guilt by requiring a judge to issue specific jury directions on the limitations of propensity evidence: this is appropriate. Victims and the jury, on the other hand, will nevertheless hear that evidence, with the so-called no rational inference test being revoked. Evidence that would currently be inadmissible under the rule in R v Hoch, a current proceeding relating to collusion between alleged victims, will now be admissible. Yet the bill will not go so far as to repeal the so-called time-honoured law of England and Australia that you cannot convict a man of one crime by proving that he has committed some other crime.

Offenders, clearly, should not be deemed guilty of one offence due solely to their conviction of a prior offence. Under current common law provisions, however, as laid out primarily in the case of R v Pfennig, if a reasonable view of the propensity evidence can be taken as consistent with innocence, the evidence must be excluded. Certainly, this particular precedent requires amendment. Accordingly, and as the minister has noted, the bill endorses the position outlined instead in the Nieterink case; that is, that the evidence of discreditable conduct can be admitted for a specific and limited purpose, such as to establish the background or context of the alleged offences or to shed light on the relationship between the parties.

Section 34P, in particular, is inserted to allow propensity evidence if the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant and to act as circumstantial evidence of a fact in issue. Section 34R, in balancing this provision, requires a judge to explain to the jury the limitations on the purpose to which the evidence can be relied upon. This is entirely appropriate.

We therefore believe that this bill appropriately deals with the need to fairly deal with offenders and at the same time allow juries access to certain propensity evidence in order to make their decision. The Attorney-General has noted that the current law is excluding cogent and reliable evidence of past misconduct. There has been an acknowledgment that the present law in this area is in need of major reform. We agree with those concerns, and we welcome this bill and again thank both the former and present attorneys-general for listening to not only Family First concerns but also those of the victims of crime, with particular relevance to the matters before us today.

I indicate Family First's support for this legislation. We are not aware of any amendments at this stage. This is overdue and we are pleased to see it before this place.

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

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