South Australian Numbered Acts South Australian Numbered ActsAfter 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 direction or 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) a
substantially similar offence against a previous enactment or 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) a
substantially similar offence against a previous enactment or 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; 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 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 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 Full Court
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 Full Court 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).
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 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 Full Court
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 Full Court 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).
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; 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 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 information 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 information 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
information should be allowed.
(6) If, more than 2
months after an order for the trial of a person for an
administration of justice offence was made under this section, an information
for the trial of the person for the offence has not been presented or has been
withdrawn or quashed, the person may apply to the Full Court to set aside the
order for the trial and to restore the acquittal as a bar to the person being
tried for the offence.
(7) 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).
Part 10A—Appeal against sentence
340—Appeal against sentence
Despite any other rule of law, if on an appeal against sentence the court is
satisfied that the sentence should be quashed and another sentence (whether
more severe or otherwise) imposed, the court must—
(a)
impose the sentence that should have been imposed in the first instance; and
(b)
order that the sentence—
(i)
will be taken to have come into effect on a date before
the date of the order; or
(ii)
will take effect on a date on or after the date of the
order.