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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 139
As laid on the table and read a first time, 20 September
2005
South Australia
Statutes
Amendment (Criminal Procedure) Bill 2005
A Bill For
An
Act to amend the Criminal Law Consolidation Act 1935; the Criminal
Law (Forensic Procedures) Act 1998; the Director of Public Prosecutions
Act 1991; the Magistrates Court Act 1991; and the Summary
Procedure Act 1921.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Criminal
Law Consolidation Act 1935
4 Insertion of sections 285BA, 285BB
and 285BC
285BA Power to serve notice to admit facts
285BB Power to require notice of intention to
adduce certain kinds of evidence
285BC Expert evidence
5 Substitution of section 288A
288A Defence to be invited to outline issues
in dispute at conclusion of opening address for the prosecution
288AB Right to call or give evidence
Part 3—Amendment of Criminal
Law (Forensic Procedures) Act 1998
6 Amendment of section 3—Interpretation
7 Substitution of section 5
5 Application of this Act to
alcohol or drug testing procedures
5A Body searches
8 Repeal of heading to Part 2 Division
1
9 Substitution of section 6
6 Part to apply to all forensic
procedures other than alcohol or drug testing procedures conducted under other
laws
10 Repeal of heading to Part 2 Division 3
Part 4—Amendment of Director
of Public Prosecutions Act 1991
11 Insertion of section 10A
10A Disclosure of information to Director
Part 5—Amendment of
Magistrates Court Act 1991
12 Amendment of section 42—Appeals
Part 6—Amendment of Summary
Procedure Act 1921
13 Amendment of section 104—Preliminary
examination of charges of indictable offences
14 Amendment of
section 107—Evaluation of evidence at preliminary examination
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Statutes Amendment (Criminal
Procedure) Act 2005.
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—Insertion of sections 285BA, 285BB and 285BC
After section 285B insert:
285BA—Power
to serve notice to admit facts
(1) A
court before which a defendant is to be tried on information may, on
application by the Director of Public Prosecutions, authorise the Director of
Public Prosecutions to serve on the defence a notice to admit specified facts.
(2) The
court may, in granting such an authorisation, fix a time within which the
notice is to be complied with.
(3) The
notice must contain a warning, in the prescribed form, to the effect that an
unreasonable failure to make an admission in response to the notice is likely,
if the defendant is convicted, to result in an increase in the severity of the
sentence.
(4) This
section does not abrogate the privilege against self-incrimination and a
refusal to make an admission on the ground that the admission would tend to
incriminate the defendant of an offence is not to be made the subject of
comment to a jury.
(5) An order under this section may only be
made at a directions hearing at which the defendant is represented by a legal
practitioner unless the court is satisfied that—
(a) the
defendant has voluntarily chosen to be unrepresented; or
(b) the
defendant is unrepresented for reasons attributable to the defendant's own
fault.
(6) If
a defendant unreasonably fails to make an admission in response to a notice
under this section, and the defendant is convicted, the court should take the
failure into account in fixing sentence.
(7) Without limiting subsection (6), a
defendant unreasonably fails to make an admission if the defendant—
(a) claims
privilege against self-incrimination as a reason for not making the admission;
and
(b) thus
puts the prosecution to proof of facts that are not seriously contested at the
trial.
285BB—Power
to require notice of intention to adduce certain kinds of evidence
(1) A court before which a defendant is to be
tried on information may require the defence to give the Director of Public
Prosecutions written notice of an intention to introduce evidence of any of the
following kinds:
(a) evidence
tending to establish that the defendant was mentally incompetent to commit the
alleged offence or is mentally unfit to stand trial;
(b) evidence
tending to establish that the defendant acted for a defensive purpose;
(c) evidence
of provocation;
(d) evidence
of automatism;
(e) evidence
tending to establish that the circumstances of the alleged offence occurred by
accident;
(f) evidence
of necessity or duress;
(g) evidence
tending to establish a claim of right;
(h) evidence
of intoxication.
(2) Before making an order under this section,
the court must satisfy itself that—
(a) the
prosecution has, in accordance with its statutory obligation, provided the
defence with an outline of the prosecution case; and
(b) the
prosecution has no existing, but unfulfilled, obligations of disclosure to the
defence.
Note—
The statutory obligation is contained in section 104 of the Summary
Procedure Act 1921
(3) Non-compliance
with a requirement under subsection (1) does not render evidence
inadmissible but the prosecutor or the judge (or both) may comment on the
non-compliance to the jury.
(4) A court before which a defendant is to be
tried on information may require the defence to notify the Director of Public Prosecutions
in writing whether it consents to dispensing with the calling of prosecution
witnesses proposed to be called to establish the admissibility of specified
intended evidence of any of the following kinds:
(a) documentary,
audio, visual, or audiovisual evidence of surveillance or interview;
(b) other
documentary, audio, visual or audiovisual evidence;
(c) exhibits.
(5) If
the defence fails to comply with a notice under subsection (4), the
defendant's consent to the tender of the relevant evidence for purposes
specified in the notice will be conclusively presumed.
285BC—Expert
evidence
(1) If a defendant is to be tried on
information, and expert evidence is to be introduced for the defence, written
notice of intention to introduce the evidence must be given to the Director of
Public Prosecutions—
(a) on
or before the date of the first directions hearing; or
(b) if
the evidence does not become available to the defence until later—as soon as
practicable after it becomes available to the defence.
(2) The notice—
(a) must
set out the name and qualifications of the expert; and
(b) must
describe the general nature of the evidence and what it tends to establish.
(3) The
court may, on application by a defendant, exempt the defendant from the
obligation imposed by this section.
(4) If
the defence proposes to introduce expert psychiatric evidence or other expert
medical evidence relevant to the defendant's mental state or medical condition
at the time of an alleged offence, the court may, on application by the
prosecutor, require the defendant to submit, at the prosecutor's expense, to an
examination by an independent expert approved by the court.
(5) If a defendant fails to comply with a
requirement of or under this section—
(a) the
evidence will not be admitted without the court's permission (but the court
cannot allow the admission of evidence if the defendant fails to submit to an
examination by an independent expert under subsection (4)); and
(b) in
the case of a trial by jury—the prosecutor or the judge (or both) may comment
on the defendant's non-compliance to the jury.
(6) If
the Director of Public Prosecutions receives notice under this section of an
intention to introduce expert evidence less than 28 days before the trial
commences, the court must, on application by the prosecutor, adjourn the case
to allow the prosecution a period determined by the prosecutor to be necessary
to obtain expert advice on the proposed evidence.
(7) If
it appears to the judge that a non-compliance with a requirement of this
section has occurred on the advice or with the agreement of a legal
practitioner, the giving of the advice or agreement constitutes unprofessional
conduct (within the meaning of the Legal Practitioners Act 1981)
and the judge must report the legal practitioner to the appropriate authority
to be dealt with for that conduct.
5—Substitution of section 288A
Section 288A—delete the section and
substitute:
288A—Defence
to be invited to outline issues in dispute at conclusion of opening address for
the prosecution
(1) On
the trial of an offence on information, the judge is to invite the defendant,
at the conclusion of the prosecutor's opening address, to address the court to
outline the issues in contention between the prosecution and the defence.
(2) The
defendant may then address the court accordingly or decline the invitation.
(3) If
the trial is before a jury, a defendant's failure to exercise a right that he
or she has been invited to exercise under this section is not to be made the
subject of comment by the judge or the prosecutor to the jury.
288AB—Right
to call or give evidence
(1) A
person charged with an offence may, at the conclusion of the evidence for the
prosecution, give or call evidence in his or her defence.
(2) If
evidence is to be given for the defence, the defendant may, before giving or
calling the evidence, address the court outlining the case for the defence.
(3) If
there are 2 or more defendants, an address on behalf of any of those defendants
must be given before evidence is given by or on behalf of that defendant and,
if the court so directs, before evidence is given by or on behalf of any of the
defendants.
(4) A
defendant may exercise a right to address the court under this section even
though he or she has already addressed the court to outline issues in
contention between the prosecution and the defence.
Part 3—Amendment of Criminal Law (Forensic Procedures)
Act 1998
6—Amendment of section 3—Interpretation
Section 3(1)—before the definition of assimilation
order insert:
alcohol or drug testing procedure means a forensic procedure to determine
the presence or concentration of alcohol or a drug in a person's blood or other
biological material;
Section 5—delete the section and
substitute:
5—Application
of this Act to alcohol or drug testing procedures
(1) An
alcohol or drug testing procedure may be carried out either under this Act or
under some other law authorising the procedure.
(2) If
an alcohol or drug testing procedure is carried out under the Road Traffic
Act 1961 or some other law, this Act does not apply to it.
5A—Body
searches
A search of the person is not to be regarded as a forensic
procedure.
8—Repeal of heading to Part 2 Division 1
Heading to Part 2 Division 1—delete the heading
Section 6—delete the section and
substitute:
6—Part to
apply to all forensic procedures other than alcohol or drug testing procedures
conducted under other laws
This Part—
(a) applies
to forensic procedures under this Act (including alcohol or drug testing
procedures); and
(b) extends
to forensic procedures (except alcohol or drug testing procedures) under other
laws.
10—Repeal of heading to Part 2 Division 3
Heading to Part 2 Division 3—delete the heading
Part 4—Amendment of Director of Public Prosecutions
Act 1991
After section 10 insert:
10A—Disclosure
of information to Director
(1) A
police officer in charge of the investigation of an indictable offence (the chief
investigator) has a duty to disclose to the Director all documentary
material collected or created in the course of the investigation that might
reasonably be expected to assist the case for the prosecution or the case for
the defence.
(2) The chief investigator must, when so
required by the Director, provide the Director with—
(a) a
list, certified by the chief investigator, of all documentary material so far
collected or created in the course of the investigation that might reasonably
be expected to assist the case for the prosecution or the case for the defence;
and
(b) copies
of documentary material referred to in the list.
(3) The duty of disclosure under
subsection (1)—
(a) extends
to material that would be exempt from production in court because it is
protected by privilege or for any other reason; and
(b) continues
until the termination date.
(4) The
chief investigator must ensure that all material disclosed, or liable to
disclosure, under subsection (1), is retained until the termination date.
(5) The
chief investigator must, at the request of the Director, provide the Director
with copies of specified documentary material collected or created in the
course of the investigation that is not liable to disclosure under subsection (1).
(6) Copies
of documentary material to be provided under this section may be provided in
electronic form.
(7) In this section—
termination date means the date when—
(a) the
Director decides that the person suspected of having committed the alleged
offence not be prosecuted for the offence; or
(b) the
prosecution is terminated; or
(c) the
accused person is convicted or acquitted, and all rights of appeal have expired
or been exhausted.
Part 5—Amendment of Magistrates Court Act 1991
12—Amendment of section 42—Appeals
Section 42(1a)—delete subsection (1a) and
substitute:
(1a) An appeal does not, however, lie against an
interlocutory judgment unless—
(a) the
judgment stays the proceedings; or
(b) the
judgment destroys or substantially weakens the basis of the prosecution case
and, if correct, is likely to lead to abandonment of the prosecution; or
(c) the
Court or the appellate court is satisfied that there are special reasons why it
would be in the interests of the administration of justice to have the appeal
determined before commencement or completion of the trial and grants its
permission for an appeal.
Part 6—Amendment of Summary Procedure Act 1921
13—Amendment of section 104—Preliminary examination of charges of indictable offences
(1) Section 104(1)(a)(iv)—delete subparagraph
(iv) and substitute:
(iv) all
other material relevant to the charge (whether relevant to the case for the
prosecution or the case for the defence) that is available to the prosecution
except material exempt from production because of privilege or for some other
reason; and
(2) Section 104(1)(b)—delete paragraph (b) and
substitute:
(b) give
personally or by post to the defendant or a legal practitioner representing the
defendant—
(i) copies
of all documentary material filed under paragraph (a); and
(ii) the
following documents:
(A) an
outline of the prosecution case;
(B) a
certificate, signed by or on behalf of the prosecutor, listing all material
relevant to the charge (whether relevant to the case for the prosecution or the
case for the defence) that is available to the prosecution (including material
that is exempt from production because of privilege or for some other reason
but distinguishing it from material that is not so exempt);
(C) a
copy of the defendant's criminal history;
(D) any
other document prescribed by the rules.
(3) Section 104(2)—delete "above" and
substitute:
in subsection (1)(a)(i)
(4) Section 104—after subsection (6) insert:
(7) Documentary
material that is to be given to the defendant or a legal practitioner
representing the defendant may be given by transmitting the material, in
electronic form, to an internet address provided for the purpose by the
intended recipient.
14—Amendment of section 107—Evaluation of evidence at preliminary examination
Section 107(5)—delete subsection (5) and
substitute:
(5) Where the Court commits a defendant for
trial, the Court must—
(a) provide
the defendant with a written statement in the prescribed form—
(i) setting
out the defendant's procedural obligations in regard to the trial; and
(ii) explaining
that non-compliance with those procedural obligations may have serious
consequences; and
(b) give
the defendant such further explanations of the trial procedure and the
defendant's obligations in regard to the trial as the Court considers
appropriate.
(6) If, in any legal proceedings, the question arises whether a defendant has been provided with the statement and explanations required by subsection (5), it will be presumed, in the absence of proof to the contrary, that the defendant has been provided with the statement and explanations.