South Australian Current Acts South Australian Current Acts146—Retrial of relevant offence of which person previously acquitted
where acquittal tainted
(1) The Court of
Appeal 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; and
(iii)
any other matter that the Court considers relevant.
(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 Court of
Appeal 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 Court of Appeal,
present an information 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 Court of
Appeal should not give permission for the late presentation of an information
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
information should be allowed.
(6) If, more than 2
months after an order for the retrial of a person for a relevant offence was
made under this section, an information for the retrial of the person for the
offence has not been presented or has been withdrawn or quashed, the person
may apply to the Court of Appeal to set aside the order for the retrial
and—
(a) to
restore the acquittal that was quashed; or
(b) to
restore the acquittal as a bar to the person being retried for the offence,
(as the case requires).
(7) In this
section—
"acquitted person" means a person who has been acquitted of a relevant offence
(whether in this State or in another jurisdiction).