South Australian Current Acts South Australian Current Acts31A—Special provisions applying to review or appeal in relation to
certain offences against section 31
(1) Despite any other
Act or law but subject to this section, if applicable review proceedings are
instituted in a court (whether before or after the commencement of this
section) in relation to a person's conviction or sentence for an offence
charged against section 31(1)—
(a) the
applicable review proceedings are (to the extent necessary) transferred to the
Supreme
Court constituted of a single Judge (the "review court") and jurisdiction is
vested by force of this paragraph in the review court to hear and determine
the applicable review proceedings; and
(b) the
person may be prosecuted for an offence against section 31(2) (the "
section 31(2) proceedings") in respect of the conduct to which the
conviction for the offence charged against section 31(1) relates and
jurisdiction is vested by force of this paragraph in the review court—
(i)
to hear and determine the section 31(2) proceedings;
and
(ii)
if relevant, to sentence the person for the offence
against section 31(2); and
(c) the
time within which the section 31(2) proceedings may be commenced is
extended by force of this paragraph to—
(i)
if the applicable review proceedings are instituted
before the commencement of this section—the day that is 2 years
after the commencement of this section; or
(ii)
if the applicable review proceedings are instituted after
the commencement of this section—the day that is 2 years after the
date on which the applicable review proceedings are instituted,
but the information charging the person with the offence against
section 31(2) must be laid (in accordance with the rules and procedures
applicable to the laying of the information in a court of summary
jurisdiction) as soon as reasonably practicable after the
applicable review proceedings are instituted; and
(d) a
party to the applicable review proceedings may request that the proceedings be
adjourned for a period considered reasonable by the court for the purposes of
preparing for the section 31(2) proceedings; and
(e) if,
in review proceedings, the review court sets aside a conviction for an offence
charged against section 31(1), the review court must refrain from making,
or stay, any order setting aside the sentence imposed on the person in respect
of the offence charged against section 31(1) (the "former sentence )
pending determination of any section 31(2) proceedings that have been
instituted; and
(f) any
agreed or undisputed facts received in the sentencing court in sentencing
proceedings for the offence charged against section 31(1) are, unless
excluded in the court’s discretion, admissible as evidence of the
conduct in fact engaged in on the occasion alleged, for the purposes of the
section 31(2) proceedings; and
(g) the
court must, in sentencing the person for an offence against
section 31(2), take into account the former sentence and, if it is in the
interests of justice to do so, may determine that the former sentence (whether
already served or being served) is taken to be the sentence in satisfaction of
the offence against section 31(2) (together with any other offences if
the former sentence consisted of 1 penalty that was imposed in respect of
multiple offences) or, if the court does not propose to make such a
determination, sentence the person in accordance with the following
requirements, subject to any modifications or additional requirements
prescribed by the regulations:
(i)
if the former sentence required the person to pay 1
or more pecuniary sums and the sentence for the offence against
section 31(2) also requires the person to pay 1 or more
pecuniary sums, the following provisions apply:
• was wholly
imposed in respect of the offence charged against section 31(1)—the
amount of the pecuniary sums paid by the person in accordance with the former
sentence must be deducted from the pecuniary sums imposed in respect of the
section 31(2) proceedings; or
• consisted of 1
penalty that was imposed in respect of multiple offences, 1 of which was
the offence charged against section 31(1)—the review court may
declare the amount attributable to the offence charged against
section 31(1) and such of that amount as has been paid by the person must
be deducted from the pecuniary sums imposed in respect of the
section 31(2) proceedings;
(B) the amount resulting after a deduction
has occurred under subsubparagraph (A) will be taken to be the
pecuniary sum owed by the person for the purposes of the
Fines Enforcement and Debt Recovery Act 2017 ;
(C) any liability of the Crown, or any
other person paid a pecuniary sum in accordance with the former sentence, to
repay the pecuniary sum is extinguished;
(ii)
if the former sentence subjected the person to a type of
non-pecuniary penalty and the sentence for the offence against
section 31(2) subjects the person to the same type of non-pecuniary
penalty—
(A) if the former sentence was wholly
imposed in respect of the offence charged against section 31(1)—the
period of the non-pecuniary penalty under the former sentence must be deducted
from the period imposed in respect of the section 31(2) proceedings; or
(B) if the former sentence consisted of 1
penalty that was imposed in respect of multiple offences, 1 of which was
the offence charged against section 31(1)—the review court may
declare the period of the non-pecuniary penalty attributable to the offence
charged against section 31(1) and that period must be deducted from the
period imposed in respect of the section 31(2) proceedings.
(2) The review court
may remit section 31(2) proceedings to a court of summary jurisdiction
for trial if satisfied that it is appropriate in the circumstances of the case
and in such a case—
(a)
subject to paragraph (b), the trial must be conducted in accordance with
the rules and procedures applicable to the trial of such a matter in the court
of summary jurisdiction; and
(b)
subsection (1)(c), (d), (f) and (g) apply to the proceedings in the court
of summary jurisdiction as if they were proceedings in the review court.
(3) For the avoidance
of doubt, a person who institutes applicable review proceedings must seek any
extension of time required in accordance with the rules and procedures
applicable to the review proceedings.
(4) If
applicable review proceedings instituted by a person convicted of an offence
charged against section 31(1) are dismissed, any section 31(2)
proceedings relating to the offence charged against section 31(1) before
the review court will be taken to be dismissed without costs.
(5) No liability
attaches to the Crown in respect of an act or omission relating to—
(a) any
proceedings against a person for an offence charged against section 31(1)
where the person did not contravene a term of an intervention order imposed
under section 13; or
(b) the
imposition and enforcement of any sentence for such an offence.
(6) In this
section—
"applicable review proceedings" means—
(a) an
appeal against a judgement given or order made in proceedings for an offence
charged against section 31(1) if a ground of the appeal is that the
person did not contravene a term of an intervention order imposed under
section 13; or
Note—
Such an appeal may be brought by any party to the proceedings for the offence
charged against section 31(1)
(b)
proceedings for judicial review relating to an offence charged against
section 31(1) if an order sought in the proceedings is on the basis that
the person did not contravene a term of an intervention order imposed under
section 13;
"conviction" for an offence charged against section 31(1) includes the
following:
(a) a
formal finding of guilt by a court;
(b) a
finding by a court that the offence has been proved;
"non-pecuniary penalty" means—
(a) a
period of—
(i)
imprisonment or detention or suspended imprisonment or
detention; or
(ii)
being subject to a bond or obligation; or
(iii)
home detention; or
(iv)
being subject to an intensive correction order; or
(v)
community service; or
(b) a
caution under the Young Offenders Act 1993 , other than an informal
caution; or
(c) an
undertaking made in connection with a family conference under the
Young Offenders Act 1993 ;
"pecuniary sum" means an amount payable pursuant to an order or direction of a
court in proceedings relating to an offence, and includes—
(a) a
fine; and
(b)
compensation; and
(c)
costs; and
(d) a
sum payable pursuant to a bond or to a guarantee ancillary to a bond; and
(e) a
levy imposed under the Victims of Crime Act 2001 .