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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law Consolidation (Double Jeopardy) Amendment
Bill 2008
A BILL FOR
An Act to amend the Criminal Law Consolidation
Act 1935.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Criminal Law Consolidation
Act 1935
4 Amendment of section
5—Interpretation
5 Insertion of Part 10
Part 10—Limitations on rules relating to double jeopardy
Division
1—Preliminary
331 Interpretation
332 Meaning
of fresh and compelling evidence
333 Meaning of tainted
acquittal
334 Application of Part
Division 2—Circumstances in which police may investigate conduct
relating to offence of which person previously
acquitted
335 Circumstances in which police may investigate
conduct relating to offence of which person previously
acquitted
Division 3—Circumstances in which trial or retrial of offence will
not offend against rules of double jeopardy
336 Retrial of
relevant offence of which person previously acquitted where acquittal
tainted
337 Retrial of Category A offence of which
person previously acquitted where there is fresh and compelling
evidence
338 Circumstances in which person may be
charged with administration of justice offence relating to previous
acquittal
Division 4—Prohibition on making certain references in
retrial
339 Prohibition on making certain references in
retrial
Division 5—Court may impose more severe sentence on appeal by
prosecution
340 Court may impose more severe sentence on
appeal by prosecution
6 Amendment of section
348—Interpretation
7 Amendment of section 352—Right of appeal in
criminal cases
8 Amendment of section 353—Determination of appeals in
ordinary cases
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law Consolidation (Double
Jeopardy) Amendment Act 2008.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Law Consolidation
Act 1935
4—Amendment of
section 5—Interpretation
Section 5(1)—after the definition of firearm
insert:
Full Court means the Supreme Court constituted of an uneven
number of judges, not being less than 3;
After section 330 insert:
Part 10—Limitations on rules relating to double
jeopardy
Division 1—Preliminary
331—Interpretation
(1) In this Part—
acquittal of an offence includes—
(a) acquittal in appellate proceedings relating to the offence;
and
(b) acquittal at the discretion of the court,
(whether in this State or in another jurisdiction);
administration of justice offence means any of the following
offences:
(a) an offence of perjury or subornation of perjury;
(b) an offence against section 243, 244, 245 or 248;
(c) an offence against section 249 or 250 where the public officer is a
judicial officer;
(d) an offence against section 256;
(e) an offence against the law of another jurisdiction corresponding to an
offence referred to in a preceding paragraph;
Category A offence means any of the following
offences:
(a) an offence of murder;
(b) manslaughter or attempted manslaughter;
(c) an aggravated offence of rape;
(d) an aggravated offence of robbery;
(e) an offence of trafficking in a commercial quantity, or large
commercial quantity, of a controlled drug contrary to section 32(1) or (2)
of the Controlled Substances Act 1984;
(f) an offence of manufacturing a commercial quantity, or large commercial
quantity, of a controlled drug contrary to section 33(1) or (2) of the
Controlled Substances Act 1984;
(g) an offence of selling a commercial quantity, or large commercial
quantity, of a controlled precursor contrary to section 33A(1) or (2) of
the Controlled Substances Act 1984;
(h) an offence against the law of another jurisdiction corresponding to an
offence referred to in a preceding paragraph;
judicial body means a court or tribunal, body or person
invested by law with judicial or quasi-judicial powers, or with authority to
make an inquiry or to receive evidence;
judicial officer means a person who alone or with others
constitutes a judicial body;
relevant offence means—
(a) a Category A offence; and
(b) any other offence for which the offender is liable to be imprisoned
for life or for at least 15 years.
(2) For the purposes of this Part, a reference to an offence of
murder includes—
(a) an offence of conspiracy to murder; and
(b) an offence of aiding, abetting, counselling or procuring the
commission of murder.
332—Meaning of fresh and compelling
evidence
(1) For the purposes of this Part, evidence relating to an offence of
which a person is acquitted is—
(a) fresh if—
(i) it was not adduced at the trial of the offence; and
(ii) it could not, even with the exercise of reasonable diligence, have
been adduced at the trial; and
(b) compelling if—
(i) it is reliable; and
(ii) it is substantial; and
(iii) it is highly probative in the context of the issues in dispute at
the trial of the offence.
(2) Evidence that would be admissible on a retrial under this Part is not
precluded from being fresh or compelling just because it would not have been
admissible in the earlier trial of the offence resulting in the relevant
acquittal.
333—Meaning of tainted
acquittal
For the purposes of this Part, if at the trial of an offence a person is
acquitted of the offence, the acquittal will be tainted
if—
(a) the person or another person has been convicted (whether in this State
or in another jurisdiction) of an administration of justice offence in
connection with the trial resulting in the acquittal; and
(b) it is more likely than not that, had it not been for the commission of
the administration of justice offence, the person would have been convicted of
the offence at the trial.
334—Application of Part
(1) This Part applies whether the offence of which a person is acquitted
is alleged to have occurred before or after the commencement of this
Part.
(2) This Part does not apply if a person is acquitted of the offence with
which the person is charged but is convicted of a lesser offence arising out of
the same set of circumstances that gave rise to the charge.
(3) However, this Part does apply in the circumstances set out in
subsection (2) if the acquittal was tainted.
Division 2—Circumstances in which police may
investigate conduct relating to offence of which person previously
acquitted
335—Circumstances in which police may investigate
conduct relating to offence of which person previously
acquitted
(1) A police officer may not carry out an investigation to which this
section applies, or authorise the carrying out of an investigation to which this
section applies, without the written authorisation of the Director of Public
Prosecutions.
(2) However, a police officer may carry out, or authorise the carrying out
of, such an investigation without the written authority of the Director of
Public Prosecutions if the police officer reasonably believes
that—
(a) urgent action is required in order to prevent the investigation being
substantially and irrevocably prejudiced; and
(b) it is not reasonably practicable in the circumstances to obtain the
consent of the Director of Public Prosecutions before taking the
action.
(3) The Director of Public Prosecutions must be informed, as soon as
practicable, of any action taken under subsection (2) and the investigation
must not proceed further without the written authorisation of the Director of
Public Prosecutions.
(4) The Director of Public Prosecutions must not authorise an
investigation to which this section applies unless—
(a) the Director of Public Prosecutions is satisfied that—
(i) as a result of the investigation, the person under investigation is,
or is likely to be, charged with—
(A) an offence of which the person has previously been acquitted;
or
(B) an administration of justice offence that is related to the offence of
which the person has previously been acquitted; and
(ii) it is in the public interest for the investigation to proceed;
and
(b) in the opinion of the Director of Public Prosecutions, the previous
acquittal would not be a bar to the trial of the person for an offence that may
be charged as a result of the investigation.
(5) This section applies to an investigation in respect of a person's
conduct in relation to an offence of which the person has previously been
acquitted and includes—
(a) the questioning, search or arrest of the person;
(b) the issue of a warrant for the arrest of the person;
(c) a forensic procedure (within the meaning of the Criminal Law
(Forensic Procedures) Act 2007) carried out on the person;
(d) the search or seizure of property or premises owned or occupied by the
person.
(6) In subsection (5), a reference to an offence of which the
person has previously been acquitted includes a
reference—
(a) to any other offence with which the person was charged that was joined
in the same information as that in which the offence of which the person was
acquitted was charged; and
(b) to any other offence of which the person could have been convicted at
the trial of the offence of which the person was acquitted.
Division 3—Circumstances in which trial or retrial
of offence will not offend against rules of double jeopardy
336—Retrial of relevant offence of which person
previously acquitted where acquittal tainted
(1) The Full Court may, on application by the Director of Public
Prosecutions, order a person who has been acquitted of a relevant offence to be
retried for the offence if the Court is satisfied that—
(a) the acquittal was tainted; and
(b) in the circumstances, it is likely that the new trial would be fair
having regard to—
(i) the length of time since the relevant offence is alleged to have
occurred; and
(ii) whether there has been any failure on the part of the police or
prosecution to act with reasonable diligence or expedition with respect to the
making of the application.
(2) An application under subsection (1) must be made within 28 days
after—
(a) the person is charged with the relevant offence following the
acquittal; or
(b) a warrant is issued for the person's arrest for the relevant offence
following the acquittal.
(3) If the Full Court orders a person to be retried for an offence of
which the person has been acquitted, the Court—
(a) must—
(i) quash the acquittal; or
(ii) remove the acquittal as a bar to the person being retried for the
offence,
(as the case requires); and
(b) must make a suppression order under Part 8 of the Evidence
Act 1929 forbidding the publication of specified material or material
of a specified class if satisfied that the order is necessary to prevent
prejudice to the administration of justice; and
(c) may make any other order that the Court thinks fit in the
circumstances.
(4) The Director of Public Prosecutions may not, without the permission of
the Full Court, present an indictment for the retrial of a person in respect of
whom the Court has made an order under this section more than 2 months
after the Court made the order.
(5) The Full Court should not give permission for the late presentation of
an indictment for a retrial unless the Court is satisfied that, despite the
period of time that has passed since the Court made the order for the
retrial—
(a) the Director of Public Prosecutions has acted with reasonable
expedition; and
(b) there is good and sufficient reason why the late presentation of the
indictment should be allowed.
(6) In this section—
acquitted person means a person who has been acquitted of a
relevant offence (whether in this State or in another jurisdiction).
337—Retrial of Category A offence of which person
previously acquitted where there is fresh and compelling
evidence
(1) The Full Court may, on application by the Director of Public
Prosecutions, order a person who has been acquitted of a Category A offence to
be retried for the offence if the Court is satisfied that—
(a) there is fresh and compelling evidence against the acquitted person in
relation to the offence; and
(b) in the circumstances, it is likely that the new trial would be fair
having regard to—
(i) the length of time since the offence is alleged to have occurred;
and
(ii) whether there has been any failure on the part of the police or
prosecution to act with reasonable diligence or expedition with respect to the
making of the application.
(2) An application under subsection (1)—
(a) must be made within 28 days after—
(i) the person is charged with the Category A offence following the
acquittal; or
(ii) a warrant is issued for the person's arrest for the Category A
offence following the acquittal; and
(b) may only be made once in respect of the person's acquittal of the
Category A offence.
Note—
An application cannot be made under this section for a further retrial if
the person is acquitted of the Category A offence on being retried for the
offence (but an application may be made under section 336 if the acquittal
resulting from the retrial is tainted).
(3) If the Full Court orders a person to be retried for an offence of
which the person has been acquitted, the Court—
(a) must—
(i) quash the acquittal; or
(ii) remove the acquittal as a bar to the person being retried for the
offence,
(as the case requires); and
(b) must make a suppression order under Part 8 of the Evidence
Act 1929 forbidding the publication of specified material or material
of a specified class if satisfied that the order is necessary to prevent
prejudice to the administration of justice; and
(c) may make any other order that the Court thinks fit in the
circumstances.
(4) The Director of Public Prosecutions may not, without the permission of
the Full Court, present an indictment for the retrial of a person in respect of
whom the Court has made an order under this section more than 2 months
after the Court made the order.
(5) The Full Court should not give permission for the late presentation of
an indictment for a retrial unless the Court is satisfied that, despite the
period of time that has passed since the Court made the order for the
retrial—
(a) the Director of Public Prosecutions has acted with reasonable
expedition; and
(b) there is good and sufficient reason why the late presentation of the
indictment should be allowed.
(6) In this section—
acquitted person means a person who has been acquitted of a
Category A offence (whether in this State or in another
jurisdiction).
338—Circumstances in which person may be charged
with administration of justice offence relating to previous
acquittal
(1) The Full Court may, on application by the Director of Public
Prosecutions, order a person who has been acquitted of an indictable offence to
be tried for an administration of justice offence that is related to the offence
of which the person has been acquitted if the Court is satisfied
that—
(a) there is fresh evidence against the acquitted person in relation to
the administration of justice offence; and
(b) in the circumstances, it is likely that a trial would be fair having
regard to—
(i) the length of time since the administration of justice offence is
alleged to have occurred; and
(ii) whether there has been any failure on the part of the police or
prosecution to act with reasonable diligence or expedition with respect to the
making of the application.
(2) An application under subsection (1) must be made within 28 days
after—
(a) the person is charged with the administration of justice offence;
or
(b) a warrant is issued for the person's arrest for the administration of
justice offence.
(3) If the Full Court orders a person to be tried for an administration of
justice offence that is related to an indictable offence of which the person has
been acquitted, the Court—
(a) must remove the acquittal as a bar to the person being tried for the
administration of justice offence; and
(b) may make any other order that the Court thinks fit in the
circumstances.
(4) The Director of Public Prosecutions may not, without the permission of
the Full Court, present an indictment for the trial of a person in respect of
whom the Court has made an order under this section more than 2 months
after the Court made the order.
(5) The Full Court should not give permission for the late presentation of
an indictment for any such trial unless the Court is satisfied that, despite the
period of time that has passed since the Court made the order for the
trial—
(a) the Director of Public Prosecutions has acted with reasonable
expedition; and
(b) there is good and sufficient reason why the late presentation of the
indictment should be allowed.
(6) In this section—
acquitted person means a person who has been acquitted of an
indictable offence (whether in this State or in another jurisdiction).
Division 4—Prohibition on making certain references
in retrial
339—Prohibition on making certain references in
retrial
At the retrial of a person for an offence of which the person had
previously been acquitted by order of the Full Court under Division 3, the
prosecution must not refer to the fact that, before making the order for the
retrial of the offence, the Court had to be satisfied that—
(a) the acquittal was tainted; or
(b) there is fresh and compelling evidence against the acquitted person in
relation to the offence,
(as the case requires).
Division 5—Court may impose more severe sentence on
appeal by prosecution
340—Court may impose more severe sentence on appeal
by prosecution
Despite any other rule of law, if, on an appeal against sentence brought by
the prosecution, the court is satisfied that the sentence should be quashed and
a more severe sentence substituted, the court may substitute a more severe
sentence even if, in so doing, the court may be exposing the convicted person to
a form of double jeopardy.
6—Amendment of
section 348—Interpretation
Section 348, definition of Full Court—delete the
definition
7—Amendment of
section 352—Right of appeal in criminal cases
Section 352(1)(ab)—delete paragraph (ab) and substitute:
(ab) if a person is tried on information and acquitted, the Director of
Public Prosecutions may, with the permission of the Full Court, appeal against
the acquittal on any ground—
(i) if the trial was by judge alone; or
(ii) if the trial was by jury and the judge directed the jury to acquit
the person;
8—Amendment of
section 353—Determination of appeals in ordinary
cases
(1) Section 353(2a)(b)—delete "and direct" and substitute:
, quash the acquittal and order
(2) Section 353(3)—delete subsection (3) and substitute:
(3) If the Full Court orders a new trial under subsection (2a)(b), the
Court—
(a) may make such other orders as the Court thinks fit for the safe
custody of the person who is to be retried or for admitting the person to bail;
but
(b) may not make any order directing the court that is to retry the person
on the charge to convict or sentence the person.