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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-14 Daily Xml
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EVIDENCE (DISCREDITABLE CONDUCT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 September 2011.)

The Hon. M. PARNELL (21:44): When this bill was first announced, I was appalled that the government appeared to be going down the path of trashing one of the pillars of our criminal justice system, namely that persons charged with offences have the right to be tried on the basis of relevant and admissible evidence that relates to the charges and not to extraneous matters. That is how it was first reported. Juries would be told about a defendant's past behaviour before they retired to consider the guilt or innocence of the accused.

That would have been a major travesty of justice. Human nature being what it is, the burden of proof and the standard of proof would both have fallen victim to the natural human tendency to presume that, if a person has been bad in the past, then they are probably still bad. A defendant faced with weak evidence, but having their poor criminal record disclosed to the jury, is far more likely to be convicted. You can almost hear the jury saying, 'Sure, there is not much evidence, but this is such a bad person that they probably did it, and they have probably done much worse but they have not been caught, so let us convict them of this one.'

I do not think that I was overly paranoid in thinking that the government might trash a pillar of the criminal justice system because they have form in this area. The now discredited and, in part, unconstitutional serious and organised crime act is a case in point. Guilt by association, secret evidence that cannot be challenged, removing judicial independence—you name it, the government has form when it comes to trashing longstanding legal principles.

However, I am pleased to see that this bill has not lived up to its draconian expectations. What we have before us is pretty much a codification of the existing common law rules of evidence relating to a narrow range of circumstances where a person's prior conduct can be introduced as relevant evidence of a criminal offence. These include propensity and similar fact evidence.

In these circumstances, the codification makes some sense. The bill makes it clear that the probative value of the evidence must outweigh the prejudicial effect of allowing that evidence in. The bill outlines the circumstances in which such evidence cannot be used and then provides for judicial discretion before the evidence can be admitted. Whilst there may be arguments about whether this codification is strictly necessary, it seems to us that the government's approach in this case is not unreasonable and, therefore, the Greens will not be opposing the bill.

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (21:47): I would like to, at this point, thank all honourable members for their second reading contributions and their support for this important bill. In stark contrast to the vast amount of judicial and academic ink that has been spilt over the last century or so on the vexed subject of similar fact and bad character evidence, I can thankfully keep my concluding comments today mercifully brief.

I would like to thank, as I said, members for their considered support and I should note that a considerable amount of work has gone into the formulation and drafting of this bill. I would also like to express, as noted in the second reading speech, my appreciation and gratitude for the valuable and wonderful work that has been kindly provided as part of this process by the Solicitor-General, Mr Wells QC, Mr Blue QC (now Justice Blue of the Supreme Court), and also the Hon. Kevin Duggan QC, former justice of the Supreme Court, and his former colleagues on the joint Courts Criminal Legislation Committee. I would also like to take this opportunity to express my sympathy to the family of the late Shirree Turner and to thank them for their efforts to also help reform this very important area of criminal law.

This bill, as the second reading speech makes clear, is a careful and deliberate effort by the government to clarify and simplify this incredibly difficult, and presently virtually unworkable, area of criminal law. The present law, resulting from various decisions of the High Court, as honourable members have rightly noted, is unduly restrictive and has the practical effect of excluding cogent and highly reliable evidence. The bill strikes an appropriate balance in this important area of the criminal law.

The bill provides that, in an appropriate case, the prosecution will be able to adduce in a criminal trial the past criminal or discreditable acts of the accused, but, at the same time, the crucial right of the accused to a fair trial is maintained and the central principle of our law that you cannot convict an accused by simple reference to his or her past misconduct is preserved. I commend the bill to the house.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (21:52): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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