South Australian Current Acts South Australian Current Acts147—Retrial of Category A offence of which person previously acquitted
where there is fresh and compelling evidence
(1) The Court of
Appeal 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 146 if the
acquittal resulting from the retrial is tainted).
(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 Category A
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 Category A
offence (whether in this State or in another jurisdiction).