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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Cases Review Commission
Bill 2010
A BILL FOR
An Act to provide for the establishment of a Criminal Cases Review
Commission and for the reference of matters by that Commission to appellate
courts; to make related amendments to the Bail
Act 1985 and the Criminal
Law Consolidation Act 1935; and for other purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
Part 2—The
Commission
4The Commission
5Terms and conditions of
membership
6Presiding member
7Vacancies or defects in
appointment of members
8Remuneration
9Commission's
procedures
10Staff
Part 3—References to
court
11References of indictable offences
12References of summary cases
13Conditions for making of references
14Further
provisions about references
Part 4—Investigations and
assistance
15Investigations pursuant to direction of
Court
16Assistance in connection with prerogative of
mercy
Part 5—Supplementary
powers
17Power to obtain documents
etc
18Power to require
appointment of investigating officers
19Inquiries
by investigating officers
20Other powers
Part 6—Disclosure of
information
21Offence of
disclosure
22Exceptions from
obligations of non-disclosure
23Consent to disclosure
Part 7—Miscellaneous
24Reports
to Attorney-General
25State Records Act 1997 and Freedom
of Information Act 1991 not to apply
26Regulations
Part 1—Amendment of
Bail Act 1985
1Amendment of section 4—Eligibility for
bail
Part 2—Amendment of
Criminal Law Consolidation Act 1935
2Insertion of section
368
368Power to order
investigations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Cases Review Commission
Act 2010.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
appropriate person, in relation to a public body,
means—
(a) the principal officer of the public body; or
(b) an officer of the public body who has been designated by the principal
officer of the body as an appropriate person for the purposes of this
Act;
Commission means the Criminal Cases Review Commission
established under
Part 2;
Court means the Supreme Court;
principal officer, in relation to a public body,
means—
(a) if the body consists of a single person (including a corporation sole
but not any other body corporate)—that person;
(b) if the body consists of an unincorporated board or committee—the
presiding officer;
(c) in any other case—the chief executive officer of the agency or a
person designated by the regulations as principal officer of the body;
public body means—
(a) a Minister of the Crown; or
(b) a person who holds an office established by an Act; or
(c) an administrative unit under the Public
Sector Management Act 1995; or
(d) South Australia Police; or
(e) any incorporated or unincorporated body—
(i) established for a public purpose by an Act; or
(ii) established for a public purpose under an Act (other than an Act
providing for the incorporation of companies or associations, co-operatives,
societies or other voluntary organisations); or
(iii) established or subject to control or direction by the Governor, a
Minister of the Crown or any instrumentality or agency of the Crown or a council
(whether or not established by or under an Act or an enactment); or
(f) a person or body declared by the regulations to be a public
body.
(2) For the purposes of this Act, convictions are related if
they are convictions of the same person by the same court on the same
day.
(1) The Criminal Cases Review Commission is established.
(2) The Commission—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) is capable of suing and being sued in its corporate name;
and
(d) has all the powers of a natural person that are capable of being
exercised by a body corporate; and
(e) has the functions and powers assigned or conferred by or under this
Act or any other Act.
(3) If a document appears to bear the common seal of the Commission, it
will be presumed, in the absence of proof to the contrary, that the common seal
of the Commission was duly affixed to the document.
(4) The Commission is not an agent or instrumentality of the Crown and the
Commission’s property is not to be regarded as property of, or held on
behalf of, the Crown.
(5) The Commission will consist of 5 members appointed by the
Governor.
(6) At least 2 of the members of the Commission must be persons who
are legal practitioners of not less than 10 years standing.
(7) At least 3 of the members of the Commission must be persons who
have knowledge or experience of any aspect of the criminal justice system
(including, in particular, the investigation of offences and the treatment of
offenders).
5—Terms
and conditions of membership
(1) A member of the Commission will be appointed on conditions determined
by the Governor and for a term, not exceeding 5 years, specified in the
instrument of appointment and subject to
subsection (2), at
the expiration of a term of appointment, is eligible for
reappointment.
(2) No person may
hold office as a member of the Commission for a continuous period which is
longer than 10 years.
(3) The Governor may appoint a suitable person to be the deputy of a
member of the Commission and the deputy may act as a member of the Commission
during any period of absence of the member.
(4) The Governor may
remove a member of the Commission from office—
(a) for breach of, or non-compliance with, a condition of appointment;
or
(b) for misconduct; or
(c) for failure or incapacity to carry out official duties
satisfactorily.
(5) The office of a member of the Commission becomes vacant if the
member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is removed from office under
subsection (4).
(6) If a casual vacancy occurs in the office of a member, the Governor may
appoint a suitable person to fill the vacancy, and that person will hold office
for the balance of the term of his or her predecessor.
The Governor must appoint a member of the Commission (the presiding
member) to preside at meetings of the Commission.
7—Vacancies
or defects in appointment of members
An act or proceeding of the Commission is not invalid by reason only of a
vacancy in its membership or a defect in the appointment of a member.
A member of the Commission is entitled to remuneration, allowances and
expenses determined by the Governor.
(1) A quorum of the Commission consists of 3 members.
(2) A meeting of the Commission will be chaired by the presiding member
or, in his or her absence, the members present at a meeting of the Commission
must choose 1 of their number to preside at the meeting.
(3) A decision carried by a majority of the votes cast by members of the
Commission at a meeting is a decision of the Commission.
(4) Each member present at a meeting of the Commission has 1 vote on
any question arising for decision and the member presiding at the meeting may
exercise a casting vote if the votes are equal.
(5) A conference by telephone or other electronic means between the
members of the Commission will, for the purposes of this section, be taken to be
a meeting of the Commission at which the participating members are present
if—
(a) notice of the conference is given to all members in the manner
determined by the Commission for the purpose; and
(b) each participating member is capable of communicating with every other
participating member during the conference.
(6) A proposed resolution of the Commission becomes a valid decision of
the Commission despite the fact that it is not voted on at a meeting of the
Commission if—
(a) notice of the proposed resolution is given to all members of the
Commission in accordance with procedures determined by the Commission;
and
(b) a majority of the members express concurrence in the proposed
resolution by letter, telegram, telex, fax, email or other written communication
setting out the terms of the resolution.
(7) The Commission must have accurate minutes kept of its
meetings.
(8) Subject to this Act, the Commission may determine its own
procedures.
(1) The Commission may, in the performance of its functions under this
Act, be assisted by employees in the Public Service who are assigned to the
staff of the Commission by the Minister.
(2) The Commission may, by agreement with the Minister responsible for an
administrative unit of the Public Service, make use of the services of the
staff, equipment or facilities of that administrative unit.
11—References
of indictable offences
(1) If a person has
been convicted of an indictable offence, the Commission—
(a) may at any time refer the conviction to the Court; and
(b) whether or not the conviction is referred to the Court—may at
any time refer to the Court any sentence (not being a sentence fixed by law)
imposed on, or in subsequent proceedings relating to, the conviction.
(2) A reference under
subsection (1) has
effect as follows:
(a) a reference of a person’s conviction will be treated for all
purposes as an appeal by the person against the conviction;
(b) a reference of a sentence imposed on, or in subsequent proceedings
relating to, a person’s conviction of an indictable offence will be
treated for all purposes as an appeal by the person against—
(i) the sentence; and
(ii) any other sentence (not being a sentence fixed by law) imposed on, or
in subsequent proceedings relating to, the conviction or any related
conviction,
(and the Commission's reasons for making the reference will be taken to be
the grounds of the appeal unless the Court grants special leave to appeal on
other grounds).
(3) On a reference under
subsection (1) of a
person’s conviction, the Commission may give notice to the Court that any
related conviction specified in the notice is to be treated as referred to the
Court under this section.
(4) If a person has
been declared liable to supervision under Part 8A of the Criminal
Law Consolidation Act 1935 in relation to an indictable offence,
the Commission may at any time refer the declaration to the Court.
(5) A reference under
subsection (4) will
be treated for all purposes as an appeal by the person against the declaration
(and the Commission's reasons for making the reference will be taken to be the
grounds of the appeal unless the Court grants special leave to appeal on other
grounds).
12—References
of summary cases
(1) Where a person has
been convicted of a summary offence by the Magistrates Court, the
Commission—
(a) may at any time refer the conviction to the District Court;
and
(b) (whether or not they refer the conviction) may at any time refer to
the District Court any sentence imposed on, or in subsequent proceedings
relating to, the conviction.
(2) A reference under
subsection (1) has
effect as follows:
(a) a reference of a person’s conviction will be treated for all
purposes as an appeal by the person against the conviction;
(b) a reference of a sentence imposed on, or in subsequent proceedings
relating to, a person’s conviction will be treated for all purposes as an
appeal by the person against—
(i) the sentence; and
(ii) any other sentence imposed on, or in subsequent proceedings relating
to, the conviction or any related conviction,
(and the Commission's reasons for making the reference will be taken to be
the grounds of the appeal unless the Court grants special leave to appeal on
other grounds).
(3) On a reference under
subsection (1) of a
person’s conviction the Commission may give notice to the District Court
that any related conviction specified in the notice is to be treated as referred
to the District Court under this section.
(4) On a reference under
subsection (1), the
District Court may not award any punishment more severe than that awarded by the
court whose decision is referred.
13—Conditions
for making of references
(1) A reference of a
conviction, sentence or declaration must not be made under this Part
unless—
(a) the Commission considers that there is a real possibility that the
conviction, sentence or declaration would not be upheld were the reference to be
made; and
(b) the Commission so
considers because of an argument, evidence or information not raised in the
proceedings which led to the conviction, sentence or declaration or on any
appeal or application for leave to appeal against the conviction, sentence or
declaration; and
(c) an appeal against
the conviction, sentence or declaration has been determined or leave to appeal
against it has been refused.
(2) Nothing in
subsection (1)(b)
or
(c) prevents the making
of a reference if it appears to the Commission that there are exceptional
circumstances which justify making it.
14—Further
provisions about references
(1) A reference of a conviction, sentence or declaration may be made under
this Part either after an application has been made by or on behalf of the
person to whom it relates or without an application having been so
made.
(2) In considering whether to make a reference of a conviction, sentence
or declaration under this Part, the Commission must have regard
to—
(a) any application or representations made to the Commission by or on
behalf of the person to whom it relates; and
(b) any other representations made to the Commission in relation to it;
and
(c) any other matters which appear to the Commission to be
relevant.
(3) In considering
whether to make a reference to a court under this Part, the Commission may at
any time refer any point on which they desire the assistance of the court to the
court for the court’s opinion on it, and on a reference under this
subsection the court must consider the point referred and furnish the Commission
with the court’s opinion on the point.
(4) A reference under
subsection (3) may
be dealt with by the court in chambers and without notice to any other
person.
(5) If the Commission makes a reference under this Part, the Commission
must—
(a) give to the court to which the reference is made a statement of the
Commission’s reasons for making the reference; and
(b) send a copy of the statement to every person who appears to the
Commission to be likely to be a party to any proceedings on the appeal arising
from the reference.
(6) In every case in which—
(a) an application has been made to the Commission by or on behalf of any
person for the reference under this Part of any conviction, sentence or
declaration; but
(b) the Commission decide not to make a reference of the conviction,
sentence or declaration,
the Commission must give a statement of the reasons for their decision to
the person who made the application (and may give such a statement to such other
persons as the Commission thinks fit).
Part 4—Investigations
and assistance
15—Investigations
pursuant to direction of Court
(1) Where a direction is given by the Court, the Commission must
investigate the matter specified in the direction in such manner as the
Commission think fit.
(2) Where, in investigating a matter specified in such a direction, it
appears to the Commission that—
(a) another matter (a related matter) which is relevant to
the determination of the case by the Court ought, if possible, to be resolved
before the case is determined by that Court; and
(b) an investigation of the related matter is likely to result in the
Court’s being able to resolve it,
the Commission may also investigate the related matter.
(3) The Commission must—
(a) keep the Court informed as to the progress of the investigation of any
matter specified in a direction; and
(b) if the Commission decides to investigate any related matter, notify
the Court of the decision and keep the Court informed as to the progress of the
investigation.
(4) The Commission
must report to the Court on the investigation of any matter specified in a
direction when—
(a) they complete the investigation of that matter and of any related
matter investigated by them; or
(b) they are directed to do so by the Court,
whichever happens first.
(5) A report under
subsection (4)
must include details of any inquiries made by or for the Commission in the
investigation of the matter specified in the direction or any related matter
investigated by them.
(6) Such a report must be accompanied—
(a) by any statements and opinions received by the Commission in the
investigation of the matter specified in the direction or any related matter
investigated by them; and
(b) subject to
subsection (7), by
any reports so received.
(7) Such a report
need not be accompanied by any reports submitted to the Commission under
section 19(5) by
an investigating officer.
16—Assistance
in connection with prerogative of mercy
(1) If the Attorney-General refers to the Commission any matter which
arises in the consideration of whether the Governor should exercise the
prerogative of mercy in relation to a conviction and on which the
Attorney-General desires their assistance, the Commission must—
(a) consider the matter referred; and
(b) give to the Attorney-General a statement of their conclusions on
it,
and the Attorney-General must, in considering whether so to recommend,
treat the Commission’s statement as conclusive of the matter
referred.
(2) Where in any case the Commission are of the opinion that the Governor
should consider whether to exercise the prerogative of mercy in relation to the
case they must give the Attorney-General the reasons for that opinion.
17—Power
to obtain documents etc
(1) This section
applies if the Commission believes that—
(a) a public body, or an officer of a public body, has possession or
control of a document or other material which may assist the Commission in the
exercise of any of their functions; and
(b) it is reasonable, in the circumstances, to exercise powers under this
section.
(2) Without limiting
subsection (1), the
documents and other material covered by this section include, in particular, any
document or other material obtained or created during any investigation or
proceedings relating to—
(a) the case in relation to which the Commission’s function is being
or may be exercised; or
(b) any other case which may be in any way connected with that case
(whether or not any function of the Commission could be exercised in relation to
that other case).
(3) If this section applies, the Commission may issue to the appropriate
person for the public body 1 or more of the following notices:
(a) a notice specifying that the document or other material must not be
destroyed, damaged or altered before the notice is withdrawn by the
Commission;
(b) a notice directing the appropriate person to produce the document or
other material to the Commission, or to give the Commission access to the
document or other material, in a manner and at a time specified in the
notice;
(c) a notice directing the appropriate person to allow the Commission to
take away the document or other material or to make and take away a copy of it
in such form as they think appropriate.
(4) An appropriate person who refuses or fails, without reasonable excuse,
to comply with a notice issued to the person under this section is guilty of an
offence.
Maximum penalty: $10 000.
(5) The duty to comply with a requirement under this section is not
affected by any obligation of secrecy or other limitation on disclosure
(including any such obligation or limitation imposed by or by virtue of an
enactment) which would otherwise prevent the production of the document or other
material to the Commission or the giving of access to it to the
Commission.
18—Power
to require appointment of investigating officers
(1) The Commission may, if it believes that inquiries should be made to
assist the Commission in the exercise of functions in relation to any case,
require the appointment of an investigating officer to carry out the
inquiries.
(2) Where any offence to which the case relates was investigated by
persons serving in a public body, a requirement under this section may be
imposed—
(a) on the person who is the appropriate person in relation to the public
body; or
(b) where the public body has ceased to exist, on the Commissioner of
Police or on the person who is the appropriate person in relation to any public
body which appears to the Commission to have functions which consist of or
include functions similar to any of those of the public body which has ceased to
exist.
(3) Where no offence to which the case relates was investigated by persons
serving in a public body, a requirement under this section may be imposed on the
Commissioner of Police.
(4) A requirement
under this section imposed on the Commissioner of Police may be a requirement to
appoint a police officer as investigating officer.
(5) A requirement
under this section imposed on a person who is the appropriate person in relation
to a public body (other than the Commissioner of Police) may be—
(a) a requirement to appoint a person serving in the public body;
or
(b) a requirement to appoint a police officer, or an officer of another
public body having functions which consist of or include the investigation of
offences, selected by the appropriate person.
(6) The Commission may direct—
(a) that a person may not be appointed; or
(b) that a public body may not be selected,
under
subsection (4)
or
(5) without the
approval of the Commission.
(7) Where an appointment is made under this section by the person who is
the appropriate person in relation to any public body, that person must inform
the Commission of the appointment and if the Commission are not satisfied with
the person appointed they may direct that—
(a) the person who is the appropriate person in relation to the public
body must, as soon as is reasonably practicable, select another person and
notify the Commission of the proposal to appoint the other person; and
(b) the other person must not be appointed without the approval of the
Commission.
19—Inquiries
by investigating officers
(1) A person appointed as the investigating officer in relation to a case
must undertake such inquiries as the Commission may from time to time reasonably
direct the person to undertake in relation to the case.
(2) A person appointed as an investigating officer may be permitted to act
as such by the person who is the appropriate person in relation to the public
body in which the person is serving.
(3) The Commission may take any steps which they consider appropriate for
supervising the undertaking of inquiries by an investigating officer.
(4) The Commission may at any time direct that a person appointed as the
investigating officer in relation to a case ceases to act as such, but the
making of such a direction does not prevent the Commission from imposing a
requirement under
section 18 to
appoint another investigating officer in relation to the case.
(5) When a person
appointed as the investigating officer in relation to a case has completed the
inquiries which the person has been directed by the Commission to undertake in
relation to the case, the person must—
(a) prepare a report of his or her findings; and
(b) submit it to the Commission; and
(c) send a copy of it to the person by whom he or she was
appointed.
(6) When a person appointed as the investigating officer in relation to a
case submits to the Commission a report of his or her findings, the person must
also submit to them any statements, opinions and reports received by the person
in connection with the inquiries which he or she was directed to undertake in
relation to the case.
Nothing in this Part derogates from the power of the Commission to take any
other steps which they consider appropriate for assisting them in the exercise
of any of their functions including, in particular—
(a) undertaking, or arranging for others to undertake, inquiries;
and
(b) obtaining, or arranging for others to obtain, statements, opinions and
reports.
Part 6—Disclosure
of information
(1) A person who is or has been a member or employee of the Commission
must not disclose any information obtained by the Commission in the exercise of
any of their functions unless the disclosure of the information is excepted from
this section by
section 22.
(2) A person who is or has been an investigating officer must not disclose
any information obtained by the person in his or her inquiries unless the
disclosure of the information is excepted from this section by
section 22.
(3) A member of the Commission must not authorise—
(a) the disclosure by an employee of the Commission of any information
obtained by the Commission in the exercise of any of their functions;
or
(b) the disclosure by an investigating officer of any information obtained
by the officer in his or her inquiries.
(4) A person who contravenes this section is guilty of an
offence.
Maximum penalty: $10 000 or imprisonment for 1 year.
22—Exceptions
from obligations of non-disclosure
(1) The disclosure of
information, or the authorisation of the disclosure of information, is excepted
from
section 21 by this
section if the information is disclosed, or is authorised to be
disclosed—
(a) for the purposes of any criminal, disciplinary or civil proceedings;
or
(b) in order to assist in dealing with an application made to the
Attorney-General for compensation for a miscarriage of justice; or
(c) by a person who is a member or an employee of the Commission either to
another person who is a member or an employee of the Commission or to an
investigating officer; or
(d) by an investigating officer to a member or an employee of the
Commission; or
(e) in any statement or report authorised or required by this Act;
or
(f) in or in connection with the exercise of any function under this Act;
or
(g) in any
circumstances in which the disclosure of information is authorised, in writing,
by the Attorney-General.
(2) The disclosure of
information is also excepted from
section 21 by this
section if the information is disclosed by an employee of the Commission, or an
investigating officer, who is authorised to disclose the information by a member
of the Commission.
(3) The disclosure of information, or the authorisation of the disclosure
of information, is also excepted from
section 21 by this
section if the information is disclosed, or is authorised to be disclosed, for
the purposes of—
(a) the investigation of an offence; or
(b) deciding whether to prosecute a person for an offence,
unless the disclosure is or would be prevented by an obligation of secrecy
or other limitation on disclosure (including any such obligation or limitation
imposed by or by virtue of an enactment) arising otherwise than under that
section.
(4) If the disclosure of information is excepted from
section 21 by
subsection (1)
or
(2), the disclosure of
the information is not prevented by any obligation of secrecy or other
limitation on disclosure (including any such obligation or limitation imposed by
or by virtue of an enactment) arising otherwise than under that
section.
(5) An authorisation of the Attorney-General under
subsection (1)(g)
is of no effect unless—
(a) a copy of the authorisation has been laid before each House of
Parliament; and
(b) neither House has resolved, in pursuance of a notice of motion given
within 14 sitting days (which need not fall within the same session of
Parliament) after the authorisation was laid before the House, to disallow the
authorisation.
(1) Where a person on whom a requirement is imposed under
section 17
notifies the Commission that any information contained in any document or other
material to which the requirement relates is not to be disclosed by the
Commission without the person's prior consent, the Commission must not disclose
the information without such consent.
(2) Such consent may
not be withheld unless—
(a) apart from
section 17—the
person would have been prevented by any obligation of secrecy or other
limitation on disclosure from disclosing the information to the Commission;
and
(b) it is reasonable for the person to withhold his consent to disclosure
of the information by the Commission.
(3) An obligation of secrecy or other limitation on disclosure which
applies to a person only where disclosure is not authorised by another person
will not be taken for the purposes of
subsection (2)(a)
to prevent the disclosure by the person of information to the Commission
unless—
(a) reasonable steps have been taken to obtain the authorisation of the
other person; or
(b) such authorisation could not reasonably be expected to be obtained.
24—Reports
to Attorney-General
(1) The Commission may report to the Attorney-General on any matter
related to the administration of this Act or the criminal justice system in this
State.
(2) A report may be made by the Commission under this section of its own
motion or at the request of the Attorney-General or a House or Committee of the
Parliament.
(3) The Attorney-General must, within 12 sitting days after receiving
a report prepared under this section, cause a copy of the report to be tabled in
each House of Parliament.
25—State
Records Act 1997 and Freedom of Information Act 1991 not to
apply
(1) The State
Records Act 1997 does not apply to information obtained by the
Commission under this Act.
(2) Information obtained by the Commission under this Act is not liable to
disclosure under the Freedom
of Information Act 1991.
(1) The Governor may
make such regulations as are contemplated by, or necessary or expedient for the
purposes of, this Act.
(2) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors;
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister or the
Commission.
Part 1—Amendment of Bail
Act 1985
1—Amendment
of section 4—Eligibility for bail
(1) Section 4(1)(c)—after "reviewed" insert:
(other than by the Criminal Cases Review Commission established under the
Criminal
Cases Review Commission Act 2010)
(2) Section 4(1)—after paragraph (c) insert:
(ca) a person who is the subject of a referral to a court under the Criminal
Cases Review Commission Act 2010;
Part 2—Amendment of Criminal Law
Consolidation Act 1935
After section 367 insert:
368—Power to order
investigations
(1) On an appeal against conviction, the Full Court may, by notice in
writing, direct the Criminal Cases Review Commission to investigate and report
to the Court on any matter specified in the notice if it appears to the Court
that—
(a) the matter is relevant to the determination of the case and ought, if
possible, to be resolved before the case is determined; and
(b) an investigation of the matter by the Commission is likely to result
in the Court being able to resolve it; and
(c) the matter cannot be resolved by the Court without an investigation by
the Commission.
(2) Copies of a direction under this section must be made available to the
appellant and the respondent.
(3) Where the Commission have reported to the Court on any matter which
they have been directed under this section to investigate, the
Court—
(a) must notify the appellant and the respondent that the Commission have
reported; and
(b) may make available to the appellant and the respondent the report of
the Commission and any statements, opinions and reports which accompanied
it.