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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-08-30 Daily Xml
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Surveillance Devices Act 2016

The Hon. T.A. FRANKS (14:38): I seek leave to make a brief explanation before addressing a question to the Attorney-General on the topic of the Surveillance Devices Act 2016, and animal welfare prosecutions.

Leave granted.

The Hon. T.A. FRANKS: The RSPCA South Australia has recently received independent legal advice that video footage that was taken covertly by unknown persons at a greyhound training property in Lewiston would likely be assumed inadmissible for any criminal proceedings due to the footage being obtained in contravention of our state's Surveillance Devices Act 2016.

That footage was purportedly taken on 6 July 2022 and provided to Greyhound Racing SA on 23 August 2022 via an email from an unidentifiable account. Greyhound Racing SA has successfully applied to the Supreme Court to be able to use the footage for its internal disciplinary proceedings; however, of course, the bar for admissibility of evidence for criminal proceedings is much higher.

Any attempts at a successful prosecution for this alleged live baiting offence under South Australia's Animal Welfare Act is entirely dependent on the use of this video footage that does appear to depict live baiting. This is hindered on the likelihood that the footage obtained may be deemed to be taken improperly and unlawfully under the Surveillance Devices Act, as its provenance is unknown. This has provided an additional avenue to have it excluded from it being considered in any trial.

Understandably, the law of provenance imposes that evidence and documents should be carefully documented, tracked and stored from the moment they are collected or generated. This helps prevent tampering, loss or contamination, and ensures that the evidence can be properly authenticated and accepted as reliable in legal proceedings.

The RSPCA of South Australia has made several unsuccessful attempts to obtain the cooperation of the anonymous person who took the footage, but they have not responded to the organisation's requests. It is now unlikely that the RSPCA will be able to proceed with a criminal prosecution against these trainers, despite them being found guilty by Greyhound Racing SA of breaching the association's Rules of Racing and the life bans that have been imposed. My questions to the Attorney-General are:

1. Has the Attorney-General considered the implications of the Surveillance Devices Act in terms of exposing animal cruelty and protecting animal welfare?

2. Is it acceptable that filming a crime itself has now been criminalised when it comes to animal welfare?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (14:41): I thank the honourable member for her question and completely understand the strong community reaction we have seen to footage depicting live baiting. I know the honourable member—not just in relation to the latest incident—has had a very long history in terms of advocating for the humane treatment of animals, not just in the racing industry but more broadly.

I understand that the RSPCA sought advice in relation to the admissibility and probated value of two video files taken by unknown persons purportedly depicting the use of live rabbits as bait for greyhounds. I understand advice was sought to inform the RSPCA whether there would be a reasonable prospect of conviction for offences against the Animal Welfare Act. I won't go into details of the advice, as we usually don't, but I think it is fair to say that footage can be deemed inadmissible when it is obtained improperly, unlawfully or the evidentiary issues arising from the provenance of the footage wanting to be used are unknown. Accordingly, it can be that advice can be given that there is no reasonable prospect of conviction.

The law of provenance ensures that a chain of evidence is preserved if it prevents tampering, doctoring or loss of evidence. Such rules, importantly, afford parties the ability to properly scrutinise contentious evidence. These rules have developed over centuries and underpin and are a foundation of our criminal justice system. That being said, I don't have any immediate proposals to vary many decades and centuries of development of the rules of evidence that are exceptionally important so someone can actually test the evidence against them, where it has come from, etc., but if there are specific suggestions I am, of course, always open and happy to look at them.

I understand also that the RSPCA have indicated that, should other admissible evidence about this particular case come to light, they won't hesitate to prosecute, and I think that is a good and reasonable thing for them to say and do.

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