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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Serious and Organised Crime)
Bill 2012
A BILL FOR
An Act to amend the Australian
Crime Commission (South Australia) Act 2004; the Bail
Act 1985; the Controlled
Substances Act 1984; the Criminal
Law (Sentencing) Act 1988; the Criminal
Law Consolidation Act 1935; the Director
of Public Prosecutions Act 1991; the Evidence
Act 1929; the Intervention
Orders (Prevention of Abuse) Act 2009; the Juries
Act 1927; the Summary
Offences Act 1953; the Summary
Procedure Act 1921; and the Youth
Court Act 1993.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment provisions
Part 2—Amendment of Australian Crime
Commission (South Australia) Act 2004
4Amendment of
section 3—Interpretation
5Amendment of section 8—Functions
of the Board
6Insertion of sections 26A
to 26F
26AContempt of
the ACC
26BSupreme Court to deal with
contempt
26CConduct
of contempt proceedings
26DPerson in contempt may be
detained
26EExaminer
may withdraw contempt application
26FRelationship with section 34
7Amendment
of section 39—Double jeopardy
Part 3—Amendment of Bail
Act 1985
8Amendment of
section 3—Interpretation
9Insertion of
section 3A
3ASerious
and organised crime suspects
10Amendment of
section 4—Eligibility for bail
11Amendment of
section 10A—Presumption against bail in certain cases
12Amendment
of section 11—Conditions of bail
13Insertion of
section 19A
19AArrest
of person who is serious and organised crime suspect
14Insertion
of section 23A
23ABail
authority to consider intervention orders
15Amendment of
section 24—Act not to affect provisions relating to intervention and
restraining orders
16Transitional provision
Part 4—Amendment of Controlled
Substances Act 1984
17Amendment of
section 4—Interpretation
18Amendment of
section 32—Trafficking
19Amendment of section 33—Manufacture
of controlled drugs for sale
20Amendment of section 33A—Sale,
manufacture etc of controlled precursor
21Amendment of
section 33B—Cultivation of controlled plants for sale
22Amendment
of section 33C—Sale of controlled plants
23Amendment of
section 33DA—Sale of instructions
24Amendment of
section 33GB—Sale of instructions to a child
25Insertion
of section 43
43Aggravated offences
Part 5—Amendment of Criminal Law
(Sentencing) Act 1988
26Insertion of
section 19AA
19AANon-association or place restriction orders may be
issued on sentence
27Insertion of Part 2 Division 6
Division 6—Applications for
re-sentencing
29ERe-sentencing for subsequent cooperation with law
enforcement agency
Part 6—Amendment of Criminal Law
Consolidation Act 1935
28Amendment of
section 5—Interpretation
29Amendment of
section 5AA—Aggravated offences
30Insertion of
Part 3B
Part 3B—Offences relating to
criminal organisations
83DInterpretation
83EParticipation in criminal
organisation
83FAlternative
verdicts
83GEvidentiary
31Amendment of
section 172—Blackmail
32Amendment of section 244—Offences
relating to witnesses
33Amendment of section 245—Offences
relating to jurors
34Amendment of section 248—Threats or
reprisals relating to persons involved in criminal investigations or judicial
proceedings
35Amendment of section 249—Bribery or
corruption of public officers
36Amendment of section 250—Threats or
reprisals against public officers
37Amendment of section 251—Abuse of
public office
38Amendment of
section 275—Information may be presented in name of Director of
Public Prosecutions
Part 7—Amendment of Director of
Public Prosecutions Act 1991
39Amendment of section 7—Powers
of Director
Part 8—Amendment of Evidence
Act 1929
40Amendment of
section 4—Interpretation
41Insertion of
sections 34KA to 34KD
34KAAdmissibility of evidence of out of court
statements by unavailable witnesses
34KBCredibility
34KCStopping the case where evidence is
unconvincing
34KDCourt’s general discretion to exclude
evidence
42Transitional provision
Part 9—Amendment of Intervention
Orders (Prevention of Abuse) Act 2009
43Amendment of
section 9—Priority for certain interventions
Part 10—Amendment of Juries
Act 1927
44Amendment of section 7—Trial
without jury
Part 11—Amendment of Summary Offences
Act 1953
45Amendment of section
4—Interpretation
46Insertion of
section 13
13Consorting
47Amendment of section
18—Loitering
48Insertion of Part 14A
Part 14A—Consorting prohibition
notices
66Interpretation
66ASenior police officer may
issue consorting prohibition notice
66BForm of notice
66CService of
notice
66DApplication for
review
66EVariation or revocation of
consorting prohibition notice
66FAppeal
66GRevocation of notice by
Commissioner
66HApplications by or on behalf of
child
66IEvidence
etc
66JCriminal
intelligence
66KOffence to contravene or fail to comply with
notice
Part 12—Amendment of Summary
Procedure Act 1921
49Insertion of Part 4
Division 5
Division 5—Non-association and place
restriction orders
77Interpretation
78Non-association and
place-restriction orders
79Non-association and place restriction orders not to
restrict certain associations or activities
80Issue of non-association or
place restriction order in absence of defendant
81Service
82Variation or revocation of
non-association or place restriction order
83Contravention of non-association and place
restriction orders
50Amendment of section 103—Procedure in
the Magistrates Court
Part 13—Amendment of Youth Court
Act 1993
51Amendment of section
7—Jurisdiction
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Serious and Organised
Crime) Act 2012.
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 Australian Crime Commission (South Australia)
Act 2004
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of confer
insert:
constable means a member or special member of the Australian
Federal Police or a member of the police force or police service of this
State;
(2) Section 3(1)—after the definition of function
insert:
in contempt of the ACC has the meaning given by
section 26A;
(3) Section 3(1), definition of intelligence
operation—delete the definition and substitute:
intelligence operation means an operation that is primarily
directed towards the collection, correlation, analysis or dissemination of
criminal information and intelligence relating to relevant criminal activity,
but that may involve the investigation of matters relating to relevant criminal
activity;
5—Amendment
of section 8—Functions of the Board
Section 8(5)—delete "3 days" and substitute:
7 days
6—Insertion
of sections 26A to 26F
After section 26 insert:
26A—Contempt of the ACC
A person is in contempt of the ACC if he or she—
(a) when appearing as a witness at an examination before an
examiner—
(i) refuses or fails to take an oath or affirmation when required to do so
under section 19; or
(ii) refuses or fails to answer a question that he or she is required to
answer by the examiner; or
(iii) refuses or fails to produce a document or thing that he or she was
required to produce by a summons or notice under this Act that was served to him
or her as prescribed; or
(b) is a legal practitioner who is required to answer a question or
produce a document at an examination before an examiner, and both of the
following apply:
(i) the answer to the question would disclose, or the document contains, a
privileged communication made by or to the legal practitioner in his or her
capacity as a legal practitioner;
(ii) he or she refuses to comply with the requirement and does not, when
required by the examiner, give the examiner the name and address of the person
to whom or by whom the communication was made; or
(c) gives evidence at an examination before an examiner that he or she
knows is false or misleading in a material particular; or
(d) obstructs or hinders an examiner in the performance of his or her
functions as an examiner; or
(e) disrupts an examination before an examiner; or
(f) threatens a person present at an examination before an
examiner.
26B—Supreme Court to deal with
contempt
(1) If an examiner is
of the opinion that, during an examination before the examiner, a person is in
contempt of the ACC, the examiner may apply to the Supreme Court for the person
to be dealt with in relation to the contempt.
(2) Before making the application, the examiner must inform the person
that the examiner proposes to make the application.
(3) The application
must be accompanied by a certificate that states—
(a) the grounds for making the application; and
(b) evidence in support of the application.
(4) A copy of the certificate must be given to the person before, or at
the same time as, the application is made.
(5) If, after—
(a) considering the matters specified in the certificate; and
(b) hearing or receiving any evidence or statements by or in support of
the ACC; and
(c) hearing or receiving any evidence or statements by or in support of
the person,
the Supreme Court finds that the person was in contempt of the ACC, the
Court may deal with the person as if the acts or omissions involved constituted
a contempt of that Court.
26C—Conduct of contempt
proceedings
(1) This section applies if an application for a person to be dealt with
in relation to a contempt of the ACC is made to the Supreme Court under
section 26B.
(2) Proceedings in relation to the application are, subject to this Act,
to be instituted, carried on, heard and determined in accordance with the laws
(including any Rules of Court) that apply in relation to the punishment of a
contempt of the Supreme Court.
(3) In proceedings in relation to the application, a certificate under
section 26B(3) is
prima facie evidence of the matters specified in the certificate.
26D—Person in contempt may be
detained
(1) If an examiner
proposes to make an application under
section 26B(1) in
respect of a person, he or she may, during the hearing concerned, direct a
constable to detain the person for the purpose of bringing the person before the
Supreme Court for the hearing of the application.
(2) If the person is detained under
subsection (1)—
(a) the examiner must apply to the Court as soon as practicable under
section 26B(1) in
respect of the person; and
(b) the person must, subject to
subsection (3) of
this section, be brought before the Court as soon as practicable.
(a) direct that the person be released from detention on condition that he
or she will appear before the Court in relation to the application; or
(b) order that the person continue to be detained until the application is
determined.
(4) The Court may also
impose any other condition on the release, for example—
(a) that the person surrenders his or her passport; or
(b) that the person gives an undertaking as to his or her living
arrangements; or
(c) that the person reports as required to a law enforcement
agency.
(5) The Court may at any time vary or revoke a condition imposed under
subsection (4).
26E—Examiner may withdraw contempt
application
(1) An examiner may at any time withdraw an application in relation to a
person under
section 26B(1).
(2) If—
(a) the examiner does so; and
(b) the person is in detention under
section 26D,
the person must be released from detention immediately.
26F—Relationship with
section 34
To avoid doubt, evidence relating to an application under
section 26B(1) is
not required to be given to a person or authority under
section 34(1).
7—Amendment
of section 39—Double jeopardy
Section 39—after its present contents (now to be designated as
subsection (1)) insert:
(2) If—
(a) an application is made to the Supreme Court under
section 26B(1) in respect of an act or omission by a person; and
(b) the person is dealt with by the Court under that section in respect of
the act or omission,
the person is not liable to be prosecuted for an offence in respect of that
act or omission.
(3) If a person is prosecuted for an offence in respect of an act or
omission referred to in section 26B(1), an application must not be made
under section 26B(1) in respect of that act or omission.
Part 3—Amendment
of Bail Act 1985
8—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of case
manager insert:
Chief Executive Officer has the same meaning as in the Correctional
Services Act 1982;
(2) Section 3(1)—after the definition of intervention
program manager insert:
serious and organised crime offence has the same meaning as
in the
Criminal
Law Consolidation Act 1935;
serious and organised crime suspect—see
section 3A;
After section 3 insert:
3A—Serious and organised crime
suspects
(1) A bail authority may determine that a person is a serious and
organised crime suspect for the purposes of this Act if the bail
authority is satisfied, on application by the Crown, that—
(a) the person has been charged with a serious and organised crime
offence; and
(b) the person was not, at the time of the alleged offence, a child;
and
(c) the grant of bail to the person is likely to cause a potential
witness, or other person connected with proceedings for the alleged offence, to
reasonably fear for his or her safety.
(2) A determination by
a bail authority that a person taken into custody on a charge of an offence is a
serious and organised crime suspect ceases to apply after 6 months if, at
that time—
(a) the person has not been tried, or is not on trial, for the offence;
and
(b) the trial of the offence is not subject to a determination of the
Supreme Court under section 275(3) of the Criminal
Law Consolidation Act 1935.
(3)
Subsection (2) does
not affect the operation of a bail agreement to which the person is subject at
the time at which the determination ceases to apply.
Note—
The person is, however, eligible to reapply for bail—see
section 4(1)(h).
10—Amendment
of section 4—Eligibility for bail
(1) Section 4(1)—after paragraph (f) insert:
(g) a person arrested on a warrant issued under
section 19A;
(h) a person who is no longer a serious and organised crime suspect
because of the operation of section 3A(2).
(2) Section 4—after subsection (1) insert:
(1a) A person who is eligible to apply for bail in accordance with
subsection (1)(h) may so apply despite the fact that he or she is already
subject to a bail agreement (the previous bail agreement) if, at
the time of the previous bail agreement, the person was a serious and organised
crime suspect (and if a new bail agreement is entered into following such an
application, the previous bail agreement ceases to be in force).
11—Amendment
of section 10A—Presumption against bail in certain
cases
(1) Section 10A—after subsection (1) insert:
(1a) An applicant who is a serious and organised crime suspect will not be
taken to have established that special circumstances exist for the purposes of
subsection (1) unless the applicant also establishes, by evidence verified
on oath or by affidavit, that he or she has not previously been convicted
of—
(a) a serious and organised crime offence; or
(b) an offence committed in another jurisdiction that would, if committed
in this jurisdiction, have been a serious and organised crime offence.
(2) Section 10A(2), definition of prescribed
applicant—after paragraph (ba) insert:
(bb) an applicant who is a serious and organised crime suspect;
12—Amendment
of section 11—Conditions of bail
(1) Section 11—after subsection (2) insert:
(2aa) If the applicant is a serious and organised crime suspect, any grant
of bail to the applicant—
(a) must be made subject to the following conditions:
(i) a condition that
the applicant agree to reside at a specified address and to remain at that place
of residence while on bail, not leaving it except for 1 of the following
purposes:
(A) necessary medical or dental treatment for the applicant;
(B) averting or minimising a serious risk of death or injury (whether to
the applicant or some other person);
(C) any other purpose approved by the Chief Executive Officer;
(ii) a condition that the applicant agree to be fitted with a device of a
kind approved by the Chief Executive Officer for the purpose of monitoring
compliance with the condition referred to in
subparagraph (i) and
to comply with all reasonable directions of the Chief Executive Officer in
relation to the device;
(iii) a condition that the applicant agree to not communicate with any
person other than specified persons, or persons of a specified class or of a
class prescribed by regulation;
(iv) a condition that the applicant agree to only use for communication
purposes, or be in possession of, such telephones, mobile phones, computers or
other communication devices as may be specified; and
(b) may not be made subject to the condition referred to in
subsection (2)(a)(ia) (but the bail authority may, subject to this section,
impose any other condition referred to in subsection (2)).
(2) Section 11(3a)—delete subsection (3a) and
substitute:
(3a) Before a bail authority imposes a condition under
subsection (2)(a)(ia) or (2aa)(a)(i), the bail authority should obtain
a report (whether oral or in writing) from the Crown on—
(a) in the case of a condition under subsection (2)(a)(ia)—the
appropriateness of such a condition being imposed in the applicant's case;
or
(b) in the case of a condition under
subsection (2aa)(a)(i)—whether the place of residence proposed to be
specified in the condition is appropriate in the applicant's case.
After section 19 insert:
19A—Arrest of person who is serious and organised
crime suspect
Where it appears to a court that—
(a) the matters referred to in section 3A(1)(a), (b) and (c)
apply in relation to a person who has been released on bail; but
(b) no application was made by a police officer to the bail authority for
a determination to that effect,
the court may—
(c) cancel the right of the person to be at liberty in pursuance of the
agreement; and
(d) if it appears necessary or desirable to do so—issue a warrant
for the person's arrest.
After section 23 insert:
23A—Bail authority to consider intervention
orders
(1) If a police officer or a person representing the Crown in bail
proceedings is made aware that the victim of the alleged offence, or a person
otherwise connected with proceedings for the alleged offence, feels a need for
protection from the alleged offender or any other person associated with the
alleged offender—
(a) the police officer or other person must ensure that the perceived need
for protection is brought to the attention of the bail authority; and
(b) the bail authority must consider—
(i) if the bail authority is a court—whether to issue an
intervention order in accordance with this section; or
(ii) in any other case—whether to apply to the Magistrates Court for
an intervention order under the Intervention
Orders (Prevention of Abuse) Act 2009.
(2) If an applicant for bail is a serious and organised crime suspect, the
bail authority must, on its own initiative, consider—
(a) if the bail authority is a court—whether to issue an
intervention order in accordance with this section; or
(b) in any other case—whether to apply to the Magistrates Court for
an intervention order under the Intervention
Orders (Prevention of Abuse) Act 2009.
(3) A court may, when determining a bail application, exercise the powers
of the Magistrates Court to issue against the applicant or any person associated
with the applicant, an intervention order under the Intervention
Orders (Prevention of Abuse) Act 2009 as if an application had been
made under that Act against the applicant or other person.
(4) An order issued under this section has effect as an intervention order
under the Intervention
Orders (Prevention of Abuse) Act 2009.
15—Amendment
of section 24—Act not to affect provisions relating to intervention
and restraining orders
Section 24—Delete "Nothing" and substitute:
Except as provided in section 23A, nothing
The amendments to the Bail
Act 1985 effected by this Part only apply in relation to a person
taken into custody on a charge of an offence allegedly committed after the
commencement of this Part.
Part 4—Amendment
of Controlled Substances
Act 1984
17—Amendment
of section 4—Interpretation
(1) Section 4(1)—after the definition of the Advisory
Council insert:
aggravated offence—where a provision differentiates
between the penalty for an aggravated offence and the penalty for a basic
offence, the reference to an aggravated offence is a reference to the offence in
its aggravated form (see section 43);
(2) Section 4(1)—after the definition of authorised
officer insert:
basic offence—where a provision differentiates between
the penalty for an aggravated offence and the penalty for a basic offence, the
reference to a basic offence is a reference to the offence in its non-aggravated
form (see section 43);
18—Amendment
of section 32—Trafficking
(1) Section 32(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$200 000 or imprisonment for
25 years, or both;
(b) for an aggravated offence—$500 000 or imprisonment for
life, or both.
(2) Section 32(2a), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$75 000 or imprisonment for
15 years, or both;
(b) for an aggravated offence—$200 000 or imprisonment for
25 years, or both.
(3) Section 32(3), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$50 000 or imprisonment for
10 years, or both;
(b) for an aggravated offence—$75 000 or imprisonment for
15 years, or both.
19—Amendment
of section 33—Manufacture of controlled drugs for
sale
(1) Section 33(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$200 000 or imprisonment for
25 years, or both;
(b) for an aggravated offence—$500 000 or imprisonment for
life, or both.
(2) Section 33(3), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$50 000 or imprisonment for
10 years, or both;
(b) for an aggravated offence—$75 000 or imprisonment for
15 years, or both.
20—Amendment
of section 33A—Sale, manufacture etc of controlled
precursor
(1) Section 33A(1), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$200 000 or imprisonment for
25 years, or both;
(b) for an aggravated offence—$500 000 or imprisonment for
life, or both.
(2) Section 33A(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$75 000 or imprisonment for
15 years, or both;
(b) for an aggravated offence—$200 000 or imprisonment for
25 years, or both.
(3) Section 33A(3), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$50 000 or imprisonment for
10 years, or both;
(b) for an aggravated offence—$75 000 or imprisonment for
15 years, or both.
(4) Section 33A(4), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$50 000 or imprisonment for
10 years, or both;
(b) for an aggravated offence—$75 000 or imprisonment for
15 years, or both.
(5) Section 33A(5), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$50 000 or imprisonment for
10 years, or both;
(b) for an aggravated offence—$75 000 or imprisonment for
15 years, or both.
21—Amendment
of section 33B—Cultivation of controlled plants for
sale
(1) Section 33B(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$200 000 or imprisonment for
25 years, or both;
(b) for an aggravated offence—$500 000 or imprisonment for
life, or both.
(2) Section 33B(3), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$50 000 or imprisonment for
10 years, or both;
(b) for an aggravated offence—$75 000 or imprisonment for
15 years, or both.
22—Amendment
of section 33C—Sale of controlled plants
(1) Section 33C(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$200 000 or imprisonment for
25 years, or both;
(b) for an aggravated offence—$500 000 or imprisonment for
life, or both.
(2) Section 33C(3), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—$50 000 or imprisonment for
10 years, or both;
(b) for an aggravated offence—$75 000 or imprisonment for
15 years, or both.
23—Amendment
of section 33DA—Sale of instructions
Section 33DA(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) for a basic offence—$10 000 or imprisonment for 3 years, or
both;
(b) for an aggravated offence—$15 000 or imprisonment for 5
years, or both.
24—Amendment
of section 33GB—Sale of instructions to a child
Section 33GB(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) for a basic offence—$20 000 or imprisonment for 3 years, or
both;
(b) for an aggravated offence—$30 000 or imprisonment for 5
years, or both.
Before section 44 insert:
43—Aggravated offences
(1) An aggravated
offence is an offence committed in circumstances where—
(a) the offender committed the offence for the benefit of a criminal
organisation, or 2 or more members of a criminal organisation, or at the
direction of, or in association with, a criminal organisation; or
(b) in the course
of, or in connection with, the offence the offender identified himself or
herself in some way as belonging to, or otherwise being associated with, a
criminal organisation (whether or not the offender did in fact belong to, or was
in fact associated with, the organisation).
(2) For the
purposes of
subsection (1)(b),
a person will be taken to have identified himself or herself as belonging to, or
as being associated with, a criminal organisation if the person displayed
(whether on an article of clothing, as a tattoo or otherwise) the insignia of
the criminal organisation unless the person proves that he or she did not
display the insignia knowingly or recklessly.
(3)
Subsection (2)
does not limit the ways in which a person may identify himself or herself as
belonging to, or being associated with, a criminal organisation.
(4) If a person is charged with an aggravated offence, the circumstances
alleged to aggravate the offence must be stated in the instrument of
charge.
(5) In this section—
criminal organisation has the same meaning as in Part 3B
of the
Criminal
Law Consolidation Act 1935.
(6) This section does not prevent a court from taking into account, in the
usual way, the circumstances of and surrounding the commission of an offence for
the purpose of determining sentence.
Examples—
1 A person is charged with a basic offence and the court finds that the
offence was committed in circumstances that would have justified a charge of the
offence in its aggravated form. In this case, the court may, in sentencing, take
into account the circumstances of aggravation for the purpose of determining
penalty but must (of course) fix a penalty within the limits appropriate to the
basic offence.
2 A person is charged with an aggravated offence and the court finds a
number (but not all) of the circumstances alleged in the instrument of charge to
aggravate the offence have been established. In this case, the court may, in
sentencing, take into account the established circumstances of and surrounding
the aggravated offence (whether alleged in the instrument of charge or not) but
must not (of course) take account of circumstances alleged in the instrument of
charge that were not established.
Part 5—Amendment
of Criminal Law (Sentencing)
Act 1988
After section 19 insert:
19AA—Non-association or place restriction orders
may be issued on sentence
(1) A court may, on sentencing a person for a prescribed offence, exercise
the powers of the Magistrates Court to issue against the defendant a
non-association order or a place restriction order under the Summary
Procedure Act 1921 as if a complaint had been made under that Act
against the defendant in relation to that conviction (and if the person is
already subject to such an order, the court may vary or revoke that order as if
an application for variation or revocation of the order had been made under that
Act, regardless of whether the order was made by it or by some other
court).
(2) A non-association order or a place restriction order issued or varied
under this section on sentencing a person for a prescribed
offence—
(a) has effect as such an order under the Summary
Procedure Act 1921; and
(b) is not a sentence for the purposes of this Act but may be taken into
account in determining the sentence for the prescribed offence.
(3) In this section—
prescribed offence has the same meaning as in Part 4
Division 5 of the
Summary
Procedure Act 1921.
27—Insertion
of Part 2 Division 6
After section 29D insert:
Division 6—Applications for
re-sentencing
29E—Re-sentencing for subsequent cooperation with
law enforcement agency
(1) This section applies to a person if—
(a) the person is currently serving a period of imprisonment for an
offence or offences (the relevant sentence); and
(b) the person has cooperated with a law enforcement agency.
(2) A person to
whom this section applies may, with the permission of the court that imposed the
relevant sentence, apply to the court to have the sentence quashed and a new
sentence imposed, taking into account the person's cooperation with the law
enforcement agency in accordance with this section.
(3) The court may only grant permission to make an application under this
section if the court is satisfied that the cooperation relates directly to an
offence that is, in the opinion of the court, a serious offence that has been
committed or may be committed in the future (whether in this or any other
jurisdiction).
(4) The chief officer of the law enforcement agency, the Director of
Public Prosecutions and the applicant are parties to the proceedings on the
application.
(5) In determining a new sentence on an application under this section,
the court must have regard to such of the following as may be
relevant:
(a) the nature and extent of the person's cooperation;
(b) the timeliness of the cooperation;
(c) the truthfulness, completeness and reliability of any information or
evidence provided by the person;
(d) the evaluation (if any) by the authorities of the significance and
usefulness of the person's cooperation;
(e) any benefit that the person has gained or is likely to gain by reason
of the cooperation;
(f) the degree to
which the safety of the person (or some other person) has been put at risk of
violent retribution as a result of the person's cooperation;
(g) whether the
cooperation concerns the offence for which the person is being sentenced or some
other offence, whether related or unrelated;
(h) whether, as a
consequence of the person's cooperation, the person would be likely to suffer
violent retribution while serving any term of imprisonment, or be compelled to
serve any such term in particularly severe conditions;
(i) the nature of
any steps that would be likely to be necessary to protect the person on his or
her release from prison;
(j) the likelihood that the person will commit further offences,
and may have regard to any other factor or principle the court thinks
relevant.
(6) On an
application by a person under this section, the court must not impose a sentence
that is more severe than the relevant sentence, but the court may extend the
non-parole period where the court passes a shorter sentence.
(7) In this section—
chief officer of a law enforcement agency
means—
(a) in the case of SA Police—the Commissioner of Police;
(b) in any other case—the person for the time being occupying a
position within the agency prescribed by the regulations.
Part 6—Amendment
of Criminal Law Consolidation
Act 1935
28—Amendment
of section 5—Interpretation
(1) Section 5(1)—after the definition of court
insert:
criminal organisation has the same meaning as in
Part 3B;
(2) Section 5(1)—after the definition of property
insert:
serious and organised crime offence means—
(a) an offence against Part 3B; or
(b) an offence that—
(i) is punishable by life imprisonment; or
(ii) is an aggravated offence against a provision of this, or any other,
Act,
if it is alleged that the offence was committed in the circumstances
where—
(iii) the offender committed the offence for the benefit of a criminal
organisation, or 2 or more members of a criminal organisation, or at
the direction of, or in association with, a criminal organisation; or
(iv) in the course of, or in connection with, the offence the offender
identified himself or herself in some way as belonging to, or otherwise being
associated with, a criminal organisation (whether or not the offender did in
fact belong to, or was in fact associated with, the organisation);
29—Amendment
of section 5AA—Aggravated offences
(1) Section 5AA(1)—after paragraph (g) insert:
(ga) —
(i) the offender committed the offence for the benefit of a criminal
organisation, or 2 or more members of a criminal organisation, or at the
direction of, or in association with, a criminal organisation; or
(ii) in the course of, or in connection with, the offence the offender
identified himself or herself in some way as belonging to, or otherwise being
associated with, a criminal organisation (whether or not the offender did in
fact belong to, or was in fact associated with, the organisation);
(2) Section 5AA—after subsection (2) insert:
(2a) For the
purposes of subsection (1)(ga)(ii), a person will be taken to have
identified himself or herself as belonging to, or as being associated with, a
criminal organisation if the person displayed (whether on an article of
clothing, as a tattoo or otherwise) the insignia of the criminal organisation
unless the person proves that he or she did not display the insignia knowingly
or recklessly.
(2b)
Subsection (2a)
does not limit the ways in which a person may identify himself or herself as
belonging to, or being associated with, a criminal organisation.
(3) Section 5AA(4)—after "established" insert:
(but a failure to comply with this subsection does not affect the validity
of the jury's verdict)
After Part 3A insert:
Part 3B—Offences relating to criminal
organisations
83D—Interpretation
(1) In this Part—
criminal group—a group consisting of 2 or more persons
is a criminal group if—
(a) an aim or activity of the group includes engaging in conduct, or
facilitating engagement in conduct, constituting a serious offence of violence
(or conduct that would, if engaged in within this State, constitute such an
offence); or
(b) an aim or activity of the group includes engaging in conduct, or
facilitating engagement in conduct, constituting a serious offence (or conduct
that would, if engaged in within this State, constitute such an offence) that is
intended to benefit the group, persons who participate in the group or their
associates;
criminal organisation means—
(a) a criminal group; or
(b) a declared organisation;
declared organisation has the same meaning as in the Serious
and Organised Crime (Control) Act 2008;
harm has the same meaning as in Part 3
Division 7A;
participating in a criminal organisation includes (without
limitation)—
(a) recruiting others to participate in the organisation; and
(b) supporting the organisation; and
(c) committing an offence for the benefit of, or at the direction of, the
organisation; and
(d) occupying a leadership or management position in the organisation or
otherwise directing any acts of the organisation;
perverting the course of justice means obstructing,
preventing, perverting or defeating the course of justice or the administration
of the law;
public officer means—
(a) a person appointed to public office by the Governor; or
(b) a judicial officer; or
(c) a member of Parliament; or
(d) a person employed in the Public Service of the State; or
(e) a police officer; or
(f) any other officer or employee of the Crown; or
(g) a member of a State instrumentality or of the governing body of a
State instrumentality or an officer or employee of a State instrumentality;
or
(h) a member of a local government body or an officer or employee of a
local government body; or
(i) a juror in any proceedings; or
(j) a person who personally performs work for the Crown, a State
instrumentality or a local government body as a contractor or as an employee of
a contractor or otherwise directly or indirectly on behalf of a
contractor;
serious harm has the same meaning as in Part 3
Division 7A;
serious offence means an indictable offence that is
punishable by imprisonment for life or for a term of 5 years or
more;
serious offence of violence means a serious offence where the
conduct constituting the offence involves—
(a) the death of,
or serious harm to, a person or a risk of the death of, or serious harm to, a
person; or
(b) serious damage
to property in circumstances involving a risk of the death of, or harm to, a
person; or
(c) perverting the course of justice in relation to any conduct that, if
proved, would constitute a serious offence of violence as referred to in
paragraph (a)
or
(b).
(2) A group of people is capable of being a criminal group for the
purposes of this Part whether or not—
(a) any of them are subordinates or employees of others; or
(b) only some of the people involved in the group are involved in
planning, organising or carrying out any particular activity; or
(c) membership of the group changes from time to time.
83E—Participation in criminal
organisation
(1) A person who
participates in a criminal organisation—
(a) knowing that, or being reckless as to whether, it is a criminal
organisation; and
(b) knowing that, or being reckless as to whether, his or her
participation in that organisation contributes to the occurrence of any criminal
activity,
is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
(2) A person who
assaults another person, knowing that, or being reckless as to whether, he or
she is, by that act, participating in a criminal activity of a criminal
organisation, is guilty of an offence.
Maximum penalty: Imprisonment for 20 years.
(3) A person who
destroys or damages property belonging to another person, or threatens to
destroy or damage property belonging to another person, knowing that, or being
reckless as to whether, he or she is, by that act, participating in a criminal
activity of a criminal organisation, is guilty of an offence.
Maximum penalty: Imprisonment for 20 years.
(4) A person who
assaults a public officer while in the execution of the officer’s duty,
knowing that, or being reckless as to whether, he or she is, by that act,
participating in a criminal activity of a criminal organisation, is guilty of an
offence.
Maximum penalty: Imprisonment for 25 years.
(5) A term of imprisonment to which a person is sentenced for an offence
against this section is cumulative on any other term of imprisonment or
detention in a training centre that the person is liable to serve in respect of
another offence (not being another offence against this section).
(6) For the purposes of this section, an action is taken to be carried out
in relation to a public officer while in the execution of the officer’s
duty, even though the public officer is not on duty at the time, if it is
carried out—
(a) as a consequence of, in retaliation for or otherwise in connection
with actions undertaken by that public officer in the execution of the
officer’s duty; or
(b) because the officer is a public officer.
(7) For the
purposes of this section, a person is presumed, in the absence of proof to the
contrary, to be knowingly participating in an organisation at a particular time
if the person is, at that time, displaying (whether on an article of clothing,
as a tattoo or otherwise) the insignia of that organisation.
83F—Alternative verdicts
If, on the trial of a person for an offence under
section 83E(2),
(3) or
(4), the jury is not
satisfied that the accused is guilty of the offence charged but is satisfied
that the accused is guilty of an offence under
section 83E(1),
it may find the accused not guilty of the offence charged but guilty of an
offence under
section 83E(1),
and the accused is liable to punishment accordingly.
83G—Evidentiary
(1) If, in any criminal proceedings, the court is satisfied beyond a
reasonable doubt that a particular group was, at a particular time, a criminal
group within the meaning of this Part, the court may, on the application of the
Director of Public Prosecutions, make a declaration to that effect.
(2) If a declaration is made in relation to a group under this section,
that group will, for the purposes of any subsequent criminal proceedings, be
taken to be a criminal group in the absence of proof to the contrary.
31—Amendment
of section 172—Blackmail
Section 172(1), penalty provision:
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for
20 years.
32—Amendment
of section 244—Offences relating to witnesses
Section 244(1), (2), (3) and (5), penalty provisions—delete
"7 years" wherever occurring and substitute in each case:
10 years
33—Amendment
of section 245—Offences relating to jurors
Section 245(1), (2), (3) and (5), penalty provisions—delete
"7 years" wherever occurring and substitute in each case:
10 years
34—Amendment
of section 248—Threats or reprisals relating to persons involved in
criminal investigations or judicial proceedings
Section 248(1) and (2), penalty provisions—delete "7 years" wherever
occurring and substitute in each case:
10 years
35—Amendment
of section 249—Bribery or corruption of public
officers
Section 249(1) and (2), penalty provisions—delete "7 years" wherever
occurring and substitute in each case:
10 years
36—Amendment
of section 250—Threats or reprisals against public
officers
Section 250(1) and (2), penalty provisions—delete "7 years" wherever
occurring and substitute in each case:
10 years
37—Amendment
of section 251—Abuse of public office
(1) Section 251(1), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—imprisonment for 7 years;
(b) for an aggravated offence—imprisonment for
10 years.
(2) Section 251(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) for a basic offence—imprisonment for 7 years;
(b) for an aggravated offence—imprisonment for
10 years.
38—Amendment
of section 275—Information may be presented in name of Director of
Public Prosecutions
Section 275—after subsection (2) insert:
(3) The Supreme Court must make rules for expediting prescribed
proceedings and, if there has been a determination by a bail authority under the
Bail
Act 1985 that the defendant in such proceedings is a serious and
organised crime suspect, the trial of the matter must be commenced within the
period of 6 months after the making of that determination, unless the
determination ceases to apply or the Court determines—
(a) on its own initiative, that it is not reasonably practicable for the
Court to deal with the matter within that period; or
(b) on application by the Director of Public Prosecutions or the
defendant, that exceptional circumstances exist that justify the matter being
set down for trial at a later date.
(4) For the avoidance of doubt, any power of the Supreme Court or the
District Court to order the transfer of proceedings under this or any other Act
or law applies to proceedings brought under this section in the same way as it
applies to any other criminal proceedings.
(5) In this section—
prescribed proceedings means proceedings brought under this
section for —
(a) an alleged serious and organised crime offence; or
(b) an offence joined in the same information as an alleged serious and
organised crime offence.
Part 7—Amendment
of Director of Public Prosecutions
Act 1991
39—Amendment
of section 7—Powers of Director
Section 7(1)—after paragraph (f) insert:
(fa) to undertake to a person not to use, or make derivative use of,
information or a thing against the person in a proceeding, other than in
relation to the falsity of evidence given by the person in a
proceeding;
Part 8—Amendment
of Evidence
Act 1929
40—Amendment
of section 4—Interpretation
(1) Section 4—after the definition of spouse
insert:
statement includes a statement however made;
(2) Section 4, definition of vulnerable
witness—after paragraph (d) insert:
or
(e) in the case of proceedings for a serious and organised crime offence
(within the meaning of the Criminal
Law Consolidation Act 1935)—a person who will only consent to
being a witness in the proceedings if he or she is treated as a vulnerable
witness for the purposes of the proceedings;
41—Insertion
of sections 34KA to 34KD
After section 34K insert:
34KA—Admissibility of evidence of out of court
statements by unavailable witnesses
(1) Subject to this section, in prescribed proceedings, a statement not
made in oral evidence in the proceedings (an out of court
statement) is admissible as evidence of any matter stated
if—
(a) oral evidence given in the proceedings by the person who made the out
of court statement would be admissible as evidence of that matter; and
(b) the person who made the out of court statement (the relevant
person) is identified to the court’s satisfaction; and
(c) any 1 of the conditions specified in
subsection (2)
is satisfied.
(2) The conditions
are as follows:
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of a bodily
or mental condition;
(c) that the relevant person is outside of the State and it is not
reasonably practicable to secure his or her attendance;
(d) that the relevant person cannot be found although such steps as it is
reasonably practicable to take to find him or her have been taken;
(e) that through
fear the relevant person does not give (or does not continue to give) oral
evidence in the proceedings, either at all or in connection with the subject
matter of the out of court statement, and the court gives leave for the out of
court statement to be given in evidence.
(3) For the purposes of
subsection (2)(e)
fear is to be widely construed and includes, for example, fear of
the death or injury of another person or of financial loss.
(4) Leave may be given under
subsection (2)(e)
only if the court considers that the out of court statement ought to be admitted
in the interests of justice, having regard to—
(a) any information (whether or not given in evidence, or of a kind that
could be given in evidence) suggesting threats have been made to the witness,
whether directly or indirectly; and
(b) the statement’s contents; and
(c) any risk that its admission or exclusion will result in unfairness to
a defendant in the proceedings (and in particular to how difficult it will be to
challenge the statement if the relevant person does not give oral evidence and
the defendant is not able to cross-examine the person); and
(d) any other measures that could be taken by the court in relation to the
relevant person; and
(e) any other relevant circumstances.
(5) A condition set out in any paragraph of
subsection (2)
which is in fact satisfied is to be treated as not satisfied if it is shown that
the circumstances described in that paragraph are caused—
(a) by the person in support of whose case it is sought to give the out of
court statement in evidence; or
(b) by a person acting on his or her behalf, in order to prevent the
relevant person giving oral evidence in the proceedings (whether at all or in
connection with the subject matter of the out of court statement).
(6) Nothing in this section makes an out of court statement admissible as
evidence if it was made by a person who was not competent at the time when he or
she made the statement.
(7) This section is in addition to, and does not derogate from, any other
power of a court to admit an out of court statement into evidence.
(8) In this section—
prescribed proceedings means—
(a) proceedings for a criminal offence; or
(b) proceedings under the Serious
and Organised Crime (Control) Act 2008.
34KB—Credibility
(1) This section applies if in prescribed proceedings—
(a) a statement not made in oral evidence in the proceedings (an out
of court statement) is admitted as evidence of a matter stated;
and
(b) the maker of the out of court statement does not give oral evidence in
connection with the subject matter of the statement.
(2) In a case to which this section applies—
(a) any evidence which (if the person who made the out of court statement
had given such evidence) would have been admissible as relevant to the
reliability of the statement and the person's credibility as a witness is so
admissible in the proceedings; and
(b) evidence may, with the court’s leave, be given of any matter
which (if the person who made the out of court statement had given such
evidence) could have been put to the person in cross-examination as relevant to
the reliability of the statement and the person's credibility as a witness but
of which evidence could not have been adduced by the cross-examining party;
and
(c) evidence tending to prove that the person who made the out of court
statement made (at whatever time) any other statement inconsistent with the
statement admitted as evidence is admissible for the purpose of showing that the
person contradicted himself or herself.
(3) If as a result of evidence admitted under this section an allegation
is made against the maker of a statement, the court may permit a party to lead
additional evidence of such description as the court may specify for the
purposes of denying or answering the allegation.
(4) In this section—
prescribed proceedings means—
(a) proceedings for a criminal offence; or
(b) proceedings under the Serious
and Organised Crime (Control) Act 2008.
34KC—Stopping the case where evidence is
unconvincing
(1) If on a
defendant’s trial before a judge and jury for an offence the court is
satisfied at any time after the close of the case for the prosecution
that—
(a) the case against the defendant is based wholly or partly on a
statement not made in oral evidence in the proceedings (an out of court
statement); and
(b) the evidence provided by the out of court statement is so unconvincing
that, considering its importance to the case against the defendant, a conviction
of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of the
offence or, if it considers that there ought to be a retrial, discharge the
jury.
(2) Where—
(a) a jury is directed under
subsection (1)
to acquit a defendant of an offence; and
(b) the circumstances are such that, apart from this subsection, the
defendant could if acquitted of that offence be found guilty of another
offence,
the defendant may not be found guilty of that other offence if the court is
satisfied as mentioned in
subsection (1)
in respect of it.
(3) This section does not prejudice any other power a court may have to
direct a jury to acquit a person of an offence or to discharge a jury.
34KD—Court’s general discretion to exclude
evidence
(1) In prescribed proceedings the court may refuse to admit a statement as
evidence of a matter stated if—
(a) the statement was made otherwise than in oral evidence in the
proceedings; and
(b) the court is satisfied that the case for excluding the statement,
taking account of the danger that to admit it would result in undue waste of
time, substantially outweighs the case for admitting it, taking account of the
value of the evidence.
(2) Nothing in this section derogates from any other power of a court to
exclude evidence at its discretion (whether by preventing questions from being
put or otherwise).
(3) In this section—
prescribed proceedings means—
(a) proceedings for a criminal offence; or
(b) proceedings under the Serious
and Organised Crime (Control) Act 2008.
Sections 34KA, 34KB, 34KC and 34KD of the Evidence
Act 1929 as inserted by
section 41 of
this Act only apply in relation to proceedings commenced after the commencement
of
section 41.
Part 9—Amendment
of Intervention Orders (Prevention of Abuse)
Act 2009
43—Amendment
of section 9—Priority for certain interventions
Section 9—after "domestic abuse" insert:
and proceedings brought by a bail authority under section 23A of the
Bail
Act 1985
Part 10—Amendment
of Juries Act 1927
44—Amendment
of section 7—Trial without jury
Section 7—after subsection (3) insert:
(3a) Where an
information is presented to the District Court or the Supreme Court under
section 275 of the Criminal
Law Consolidation Act 1935 and the information includes a charge of
a serious and organised crime offence (within the meaning of that Act), the
Director of Public Prosecutions may apply to the court for an order that the
accused be tried by judge alone.
(3b) The court may make
an order on an application under
subsection (3a) if
it considers it is in the interests of justice to do so (and may do so at any
time before commencement of the trial of the matter, regardless of whether a
jury has been constituted in accordance with this Act to try the issues on the
trial).
(3c) Without limiting
subsection (3b), the
court may make an order on an application under
subsection (3a) if
it considers that there is a real possibility that acts that may constitute an
offence under section 245 or 248 of the Criminal
Law Consolidation Act 1935 would be committed in relation to a
member of a jury.
(3d) An order of a court on an application under
subsection (3a) may
be appealed against in the same manner as a decision on an issue antecedent to
trial.
Part 11—Amendment
of Summary Offences
Act 1953
45—Amendment
of section 4—Interpretation
Section 4(1)—after the definition of senior police
officer insert:
serious and organised crime offence has the same meaning as
in the
Criminal
Law Consolidation Act 1935;
After section 12 insert:
13—Consorting
(1) A person must not, without reasonable excuse, habitually consort with
a prescribed person or persons.
Maximum penalty: Imprisonment for 2 years.
(2) For the purposes of this section a person may consort
with another person by any means including by letter, telephone or fax or by
email or other electronic means.
(3) In this section—
prescribed person means a person who has been found guilty
of, or who is reasonably suspected of having committed, a serious and organised
crime offence.
47—Amendment
of section 18—Loitering
Section 18—after subsection (2) insert:
(3) If a police
officer has reasonable grounds to suspect that a person who is loitering in a
public place is of a prescribed class, the officer may request that the person
state the reason why he or she is in that place.
(4) The police officer must, before making the request, advise the
person—
(a) that the request is being made under this section; and
(b) which prescribed class the officer believes the person belongs
to.
(5) If, in response
to a request by a police officer under
subsection (3),
a person of a prescribed class refuses or fails to state a satisfactory reason
for being in that place, the person is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 3 months.
(6) A person is of
a prescribed class for the purposes of this section if the person
is—
(a) a person who has been found guilty of, or who is reasonably suspected
of having committed, a serious and organised crime offence; or
(b) a prescribed drug offender within the meaning of the Criminal
Assets Confiscation Act 2005; or
(c) a person who is subject to a firearms prohibition order under
Part 2A of the Firearms
Act 1977; or
(d) a person who is subject to a control order under the Serious
and Organised Crime (Control) Act 2008; or
(e) a person who is subject to a weapons prohibition order under
Part 3A; or
(f) a person who is subject to a consorting prohibition notice under Part
14A; or
(g) a person who is subject to a non-association or place restriction
order under Part 4 Division 5 of the Summary
Procedure Act 1921; or
(h) a person who is subject to a paedophile restraining order under Part 4
Division 7 of the Summary
Procedure Act 1921; or
(i) a person of a class prescribed by regulation.
(7) For the purposes of
subsection (6),
a person may belong to a prescribed class by virtue of an offence committed, an
order made or a notice issued before or after the commencement of that
subsection.
(8) In any proceedings for an offence under
subsection (5)—
(a) an apparently genuine document purporting to be signed by the
Commissioner and to certify that at a specified time a weapons prohibition order
or a consorting prohibition notice applied to, or was in force against, a
specified person is admissible as evidence of the matter so certified and is, in
the absence of proof to the contrary, to be regarded as proof of the matter so
certified; and
(b) an apparently genuine document purporting to be signed by the
Registrar of Firearms and to certify that at a specified time a firearms
prohibition order applied to, or was in force against, a specified person is
admissible as evidence of the matter so certified and is, in the absence of
proof to the contrary, to be regarded as proof of the matter so
certified.
After section 65 insert:
Part 14A—Consorting prohibition
notices
66—Interpretation
(1) In this Part—
close personal relationship has the same meaning as in
Part 3 of the
Family
Relationships Act 1975;
consorting prohibition notice means a notice issued by a
senior police officer under
section 66A(1);
Court means the Magistrates Court;
criminal intelligence means information relating to actual or
suspected criminal activity (whether in this State or elsewhere) the disclosure
of which could reasonably be expected to prejudice criminal investigations, to
enable the discovery of the existence or identity of a confidential source of
information relevant to law enforcement or to endanger a person's life or
physical safety;
offence of violence means an offence where the
offender—
(a) uses a weapon, or threatens to use a weapon, against another;
or
(b) inflicts serious harm on another, or threatens to inflict serious harm
on another,
for the purpose of committing the offence, or escaping from the scene of
the offence;
prescribed offence means—
(a) an offence against Part 5 Division 2 of the Controlled
Substances Act 1984 or a corresponding offence against a previous
enactment; or
(b) an indictable offence against the Firearms
Act 1977; or
(c) an indictable offence of violence; or
(d) a serious and organised crime offence; or
(e) an offence involving extortion or money laundering; or
(f) any attempt to commit, or assault with intent to commit, any of the
foregoing offences; or
(g) an offence against the law of another jurisdiction that would, if
committed in this State, constitute any of the foregoing offences;
recipient—see
section 66A(1);
senior police officer means a police officer of or above the
rank of superintendent;
spouse—a person is the spouse of another if they are
legally married.
(2) For the purposes of this Part—
(a) a person may consort with another person by any means
including by letter, telephone or fax or by email or other electronic means;
and
(b) a person is a close family member of another person
if—
(i) 1 is a spouse or former spouse of the other or is, or has been, in a
close personal relationship with the other; or
(ii) 1 is a parent or grandparent of the other (whether by blood or by
marriage); or
(iii) 1 is a brother or sister of the other (whether by blood or by
marriage); or
(iv) 1 is a guardian or carer of the other.
66A—Senior police officer may issue consorting
prohibition notice
(1) A senior police
officer may issue a notice prohibiting a person (the recipient)
from consorting with a specified person or specified persons if the officer is
satisfied that—
(a) —
(i) the recipient is subject to a control order under the Serious
and Organised Crime (Control) Act 2008; or
(ii) the specified person or each specified person—
(A) has, within the preceding period of 3 years, been found guilty of
1 or more prescribed offences; or
(B) is reasonably suspected of having committed 1 or more prescribed
offences within the preceding period of 3 years; and
(b) the recipient has been habitually consorting with the specified person
or specified persons; and
(c) the issuing of
the notice is appropriate in the circumstances.
(2) However, a
consorting prohibition notice—
(a) does not
prohibit associations between close family members; and
(b) does not
prohibit associations occurring between persons—
(i) for genuine political purposes; or
(ii) while the persons are in lawful custody; or
(iii) while the persons are acting in compliance with a court order;
or
(iv) while the persons are attending a rehabilitation, counselling or
therapy session of a prescribed kind; and
(c) may specify other circumstances in which the notice does not
apply.
(3) A consorting prohibition notice issued by a police officer on the
basis that he or she is satisfied that the recipient is subject to a control
order will lapse—
(a) if—
(i) an application to vary the control order is made under the Serious
and Organised Crime (Control) Act 2008 within the period ending
28 days after the day on which the consorting prohibition notice was
issued; and
(ii) the application is for the control order to be varied so that the
person subject to the order is prohibited from associating with each person
specified in the consorting prohibition notice as a person with whom he or she
is prohibited from consorting,
when the application is determined; or
(b) if no such application is made—at the end of that 28 day
period.
66B—Form of notice
(1) A consorting prohibition notice—
(a) subject to
subsection (2),
must specify the grounds on which the notice has been issued; and
(b) must contain a statement advising the recipient of the effect of
section 66A(2)(a)
and
(b); and
(c) must contain a statement advising the recipient that he or she is
entitled to apply for a review of the notice in accordance with this
Part.
(2) A statement of
the grounds on which a notice has been issued must not contain information that
is classified by the Commissioner as criminal intelligence.
66C—Service of notice
(1) Subject to the making of an order under
subsection (3),
a consorting prohibition notice must be served on the recipient personally and
is not binding on the recipient until it has been so served.
(2) If a police officer has reason to believe that a person is subject to
a consorting prohibition notice that has not been served on the person, the
officer may—
(a) require the
person to remain at a particular place for—
(i) so long as may be necessary for the notice to be served on the person;
or
(ii) 2 hours,
whichever is the lesser; and
(b) if the person refuses or fails to comply with the requirement or the
officer has reasonable grounds to believe that the requirement will not be
complied with, arrest and detain the person in custody (without warrant) for the
period referred to in
paragraph (a).
(3) If a police
officer satisfies the Court that all reasonable efforts have been made to effect
personal service of a notice on a recipient in accordance with this section but
that those efforts have failed, the Court may make such orders as it thinks fit
in relation to substituted service (and the notice is not binding on the
recipient until it has been so served).
66D—Application for review
(1) Subject to
subsection (3),
a recipient on whom a consorting prohibition notice has been served may, within
4 weeks after service of the notice, lodge an application with the Court
for review of the notice.
(2) The Court may, on a review, consider the following matters:
(a) whether sufficient grounds exist to satisfy the Court that the notice
was properly issued in accordance with
section 66A(1);
(b) whether any person specified in the notice is a close family member of
the recipient or there are otherwise good reasons why a particular person should
not be so specified;
(c) whether the notice should specify particular circumstances in which it
does not apply.
(3) The grounds of
the review must be stated fully and in detail in the application.
(4) A copy of the application for review must be served by the recipient
on the Commissioner personally or by registered post at least 7 days before
the day appointed for conducting the review (and the Commissioner is a party to
proceedings on the application).
(5) The Court may, on a review, confirm, vary or revoke the
notice.
66E—Variation or revocation of consorting
prohibition notice
(1) If, at any time, the Court is satisfied that, since a consorting
prohibition notice was made or last varied, there has been a substantial change
in the circumstances taken into account in accordance with
section 66A(1)(c),
the Court may grant the recipient permission to apply to the Court under this
section.
(2) The Court may, on an application under this section, vary or revoke a
consorting prohibition notice.
(3) A copy of the application for variation or revocation must be served
by the recipient on the Commissioner personally or by registered post at least
7 days before the day appointed for hearing the application (and the
Commissioner is a party to proceedings on the application).
66F—Appeal
(1) The Commissioner or the recipient may appeal to the Supreme Court
against a decision of the Court under this Part.
(2) An appeal lies as of right on a question of law and with permission on
a question of fact.
(3) An appeal must be commenced within the time, and in accordance with
the procedure, prescribed by rules of the Supreme Court.
66G—Revocation of notice by
Commissioner
The Commissioner may, at any time, revoke a consorting prohibition notice
by notice in writing to the recipient.
66H—Applications by or on behalf of
child
An application to a court that could otherwise be made by a person under
this Part may, if the person is a child, be made—
(a) by the child with the permission of the court, if the child has
attained the age of 14 years; or
(b) on behalf of the child—
(i) by a parent or guardian of the child; or
(ii) by a person with whom the child normally or regularly
resides.
66I—Evidence etc
(1) In any proceedings under this Part, other than for an offence, the
Court—
(a) is not bound by the rules of evidence but may inform itself as it
thinks fit; and
(b) must act according to equity, good conscience and the substantial
merits of the case without regard to technicalities and legal forms.
(2) A fact to be proved in proceedings under this Part, other than for an
offence, is sufficiently proved if proved on the balance of
probabilities.
66J—Criminal intelligence
(1) In any proceedings under this Part, a court—
(a) must, on the application of the Commissioner, take steps to maintain
the confidentiality of information classified by the Commissioner as criminal
intelligence, including steps to receive evidence and hear argument about the
information in private in the absence of the parties to the proceedings and
their representatives; and
(b) may take evidence consisting of or relating to information so
classified by the Commissioner by way of affidavit of a senior police
officer.
(2) The Commissioner may not delegate the function of classifying
information as criminal intelligence for the purposes of this Act except to a
Deputy Commissioner or Assistant Commissioner of Police.
66K—Offence to contravene or fail to comply with
notice
(1) A person who contravenes or fails to comply with a consorting
prohibition notice is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
(2) A person does not commit an offence against this section in respect of
an act or omission unless the person knew that the act or omission constituted a
contravention of, or failure to comply with, the notice or was reckless as to
that fact.
(3) In proceedings for an offence against this section, an apparently
genuine document purporting to be signed by the Commissioner and to certify that
at a specified time a consorting prohibition notice applied to, or was in force
against, a specified person must, in the absence of proof to the contrary, be
regarded as proof of the matter so certified.
Part 12—Amendment
of Summary Procedure
Act 1921
49—Insertion
of Part 4 Division 5
After section 76B insert:
Division 5—Non-association and place restriction
orders
77—Interpretation
In this Division—
close family, in relation to a defendant, means the following
people:
(a) the defendant’s spouse, or former spouse, or a person in a close
personal relationship with the defendant;
(b) the defendant’s parents and grandparents (whether by blood or by
marriage);
(c) the defendant’s children and grandchildren (whether by blood or
by marriage);
(d) the defendant’s brothers and sisters (whether by blood or by
marriage);
(e) the defendant’s guardians or carers;
close personal relationship has the same meaning as in
Part 3 of the
Family
Relationships Act 1975;
health service means a health service within the meaning of
the
Health
Care Act 2008 and includes any service of a kind prescribed by
regulation for the purposes of this definition;
non-association order means an order under
section 78—
(a) prohibiting a defendant—
(i) from being in company with a specified person; or
(ii) from communicating with that person by any means,
except at the times or in the circumstances (if any) specified in the
order; or
(b) prohibiting a defendant—
(i) from being in company with a specified person; and
(ii) from communicating with that person by any means;
place restriction order means an order under
section 78—
(a) prohibiting a defendant from frequenting or visiting a specified place
or area except at the times or in the circumstances (if any) specified in the
order; or
(b) prohibiting a defendant from frequenting or visiting a specified place
or area at any time or in any circumstance;
prescribed offence means an indictable offence or an offence
that would, if committed in this State, be an indictable offence;
spouse—a person is the spouse of another if they are
legally married;
welfare service means services (whether provided as public or
private services) relating to the provision of housing, employment benefits,
rental assistance or other financial assistance, family support and other
community welfare services necessary for the promotion, protection, development
and maintenance of the well-being of persons.
78—Non-association and place-restriction
orders
(1) A complaint may be made under this section by a police
officer.
(2) On a complaint, the Court may make a non-association order or a place
restriction order (or both) in respect of the defendant if—
(a) the defendant has, within the period of 2 years immediately
preceding the making of the complaint, been convicted (in this State or
elsewhere) of a prescribed offence; and
(b) the Court is satisfied that it is reasonably necessary to do so to
ensure that the defendant does not commit any further prescribed
offences.
(3) A non-association order or a place restriction order—
(a) operates for the period specified in the order (which must be not more
than 2 years); and
(b) may specify that it is to commence at the end of a period of
imprisonment being served by the defendant.
(4) The Court may—
(a) in determining whether it is reasonably necessary to make a
non-association order or a place restriction order to ensure that the defendant
does not commit any further prescribed offences, take into account events that
have taken place outside of this State; and
(b) make a non-association order or a place restriction order against a
defendant whether resident in or outside of this State.
(5) If a defendant disputes some or all of the grounds on which a
non-association order or a place restriction order is sought or made but
consents to the order, the Court may make or confirm the order without receiving
any further submissions or evidence as to the grounds.
79—Non-association and place restriction orders not
to restrict certain associations or activities
(1) The persons
specified in a non-association order as persons with whom the defendant must not
associate may not include any member of the defendant’s close
family.
(2) Despite
subsection (1),
a member of the defendant’s close family may be specified in a
non-association order if—
(a) the defendant requests that the member be specified in the order;
or
(b) the Court has reasonable cause to believe, having regard to the
criminal antecedents of the member and the defendant, the nature and pattern of
criminal activity in which the member and the defendant have both participated
or any other matter the Courts thinks fit, that there is an appreciable risk
that the defendant may be involved in conduct that could involve the commission
of a further prescribed offence if the defendant associates with that
member.
(3) The places or
areas specified in a place restriction order as places or areas that the
defendant must not frequent or visit may not include—
(a) the defendant’s place of residence or the place of residence of
any member of the defendant’s close family; or
(b) any place of work at which the defendant is regularly employed;
or
(c) any educational institution at which the defendant is enrolled;
or
(d) any place of worship that the defendant regularly attends.
(4) Despite
subsection (3),
a place or area referred to in that subsection may be specified in a place
restriction order if—
(a) the defendant requests that the place or area be specified in the
order; or
(b) the Court has reasonable cause to believe, having regard to the
ongoing nature and pattern of participation of the defendant in criminal
activity occurring at that place or area, that there is an appreciable risk that
the defendant may be involved in conduct that could involve the commission of a
further prescribed offence if the defendant frequents or visits that place or
area.
80—Issue of non-association or place restriction
order in absence of defendant
(1) A non-association order or a place restriction order may be made in
the absence of the defendant if the defendant was required by summons or
conditions of bail to appear at the hearing of the complaint and failed to
appear.
(2) A
non-association order or a place restriction order may be made in the absence of
the defendant and despite the fact that the defendant was not summoned to appear
at the hearing of the complaint, but in that case, the Court must summon the
defendant to appear before the Court to show cause why the order should not be
confirmed.
(3) The Court may
make an order under
subsection (2)
on the basis of evidence received in the form of an affidavit but, in that
case—
(a) the deponent must, if the defendant so requires, appear personally at
the proceedings for confirmation of the order to give oral evidence of the
matters referred to in the affidavit; and
(b) if the deponent does not appear personally to give evidence in
pursuance of such a requirement, the Court may not rely on the evidence
contained in the affidavit for the purpose of confirming the order.
(4) The Court may,
from time to time without requiring the attendance of any party, adjourn the
hearing to which a defendant is summoned under
subsection (2)
to a later date if satisfied that the summons has not been served or that there
is other adequate reason for the adjournment.
(5) The date fixed in the first instance for the hearing to which a
defendant is summoned under
subsection (2)
must be within 7 days of the date of the order, and the date fixed under
subsection (4)
for an adjourned hearing must be within 7 days of the date on which the
adjournment is ordered, unless the Court is satisfied—
(a) that a later date is required to enable the summons to be served;
or
(b) that there is other adequate reason for fixing a later date.
(6) A non-association order or a place restriction order made under
subsection (2)—
(a) continues in force until the conclusion of the hearing to which the
defendant is summoned or, if the hearing is adjourned, until the conclusion of
the adjourned hearing; but
(b) will not be effective after the conclusion of the hearing to which the
defendant is summoned, or the adjourned hearing, unless the Court confirms the
order—
(i) on failure of the defendant to appear at the hearing in obedience to
the summons; or
(ii) having considered any evidence given by or on behalf of the
defendant; or
(iii) with the consent of the defendant.
(7) The Court may confirm a non-association order or a place restriction
order in an amended form.
(8) If a hearing is adjourned under this section, the Court need not be
constituted at the adjourned hearing of the same judicial officer as ordered the
adjournment.
81—Service
(1) Subject to the making of an order under
subsection (4),
a non-association order or place restriction order must be served on the
defendant personally and is not binding on the defendant until it has been so
served.
(2) If a
non-association order or place restriction order is confirmed in an amended form
or is varied before being confirmed or at any other time, subject to the making
of a declaration under
subsection (4)
or
subsection (5)—
(a) the order in
its amended or varied form must be served on the defendant personally;
and
(i) the amendment or variation is not binding on the defendant;
but
(ii) the order as in force prior to the amendment or variation continues
to be binding on the defendant.
(3) If a police officer has reason to believe that a person is subject to
a non-association order or place restriction order that has not been served on
the person, the officer may—
(a) require the
person to remain at a particular place for—
(i) so long as may be necessary for the order, and, if the order is
subject to confirmation, the summons to appear before the Court to show cause
why the order should not be confirmed, to be served on the person; or
(ii) 2 hours,
whichever is the lesser; and
(b) if the person refuses or fails to comply with the requirement or the
officer has reasonable grounds to believe that the requirement will not be
complied with, arrest and detain the person in custody (without warrant) for the
period referred to in
paragraph (a).
(4) If a police
officer satisfies the Court that all reasonable efforts have been made to effect
personal service of an order on a defendant in accordance with this section but
that those efforts have failed, the Court may declare that
subsection (2)(a)
does not apply and may make such orders as it thinks fit in relation to
substituted service (and in such a case, the non-association order or place
restriction order will not be binding on the defendant until it has been served
in accordance with the orders for substituted service).
(5) If the Court is
satisfied that the order in its amended or varied form is more favourable to the
defendant, the Court may declare that
subsection (2)(b)
does not apply and that the amendment or variation is to be binding on the
defendant as from the day of the declaration or such other day as the Court
specifies.
82—Variation or revocation of non-association or
place restriction order
(1) The Court may vary or revoke a non-association order or place
restriction order on application by a police officer or the defendant.
(2) An application for variation or revocation of a non-association order
or place restriction order may only be made by the defendant with the permission
of the Court and permission is only to be granted if the Court is satisfied
there has been a substantial change in the relevant circumstances since the
order was made or last varied.
(3) The Court must, before varying or revoking an order under this
section—
(a) allow all parties a reasonable opportunity to be heard on the matter;
and
(b) have regard to the same factors that the Court is required to have
regard to in considering whether or not to make a non-association order or place
restriction order and in considering the terms of such an order.
83—Contravention of non-association and place
restriction orders
(1) A person who
contravenes or fails to comply with a non-association order or place restriction
order is guilty of an offence.
Maximum penalty:
(a) for a first offence—imprisonment for 6 months;
(b) for a subsequent offence—imprisonment for
2 years.
(2)
Subsection (1)
does not apply if the person establishes that he or she had a reasonable excuse
for the contravention or failure to comply.
(3) Without limiting
subsection (2),
it is a reasonable excuse for associating with a specified person in
contravention of a non-association order if—
(a) the person did so in compliance with an order of a court; or
(b) the person did so unintentionally and terminated the association as
soon as was reasonably practicable.
(4) Without limiting
subsection (2),
it is a reasonable excuse for frequenting or visiting a specified place or area
in contravention of a place restriction order if—
(a) the person did so in compliance with an order of a court; or
(b) the person did so unintentionally and left the place or area as soon
as was reasonably practicable; or
(c) the person needed to frequent or visit the place or area in order
to—
(i) receive a health service or a welfare service; or
(ii) obtain legal advice or otherwise be provided with legal
services.
50—Amendment
of section 103—Procedure in the Magistrates Court
Section 103—after subsection (4) insert:
(5) The fact that an information charging an indictable offence has been
filed in the Court does not prevent the Director of Public Prosecutions from
subsequently presenting to the Supreme Court or District Court an information
charging the same offence under section 275 of the Criminal
Law Consolidation Act 1935 if the Director of Public Prosecutions
thinks fit (and the information filed in the Court will, on the giving of
written notice by the Director of Public Prosecutions to the Registrar of that
fact, be taken to have been withdrawn).
Part 13—Amendment
of Youth Court
Act 1993
51—Amendment
of section 7—Jurisdiction
Section 7—after paragraph (b) insert:
(ba) has the same jurisdiction as the Magistrates Court to make a
non-association or place restriction order under the Summary
Procedure Act 1921 where the person who is to be subject to the
order is a child or youth, and has power under that Act to vary or revoke such
an order previously made by the Court; and