South Australian Numbered Acts South Australian Numbered ActsSchedule 2—Related amendments and transitional provisions
Part 1—Related amendments to Bail Act 1985
1—Amendment of section 3A—Serious and organised crime suspects
Section 3A(2)(b)—delete "section 275(3) of the Criminal Law Consolidation Act 1935
" and substitute:
section 127 of the Criminal Procedure Act 1921
2—Amendment of section 6—Nature of bail agreement
Section 6(1)(a)(i)—delete "relating to any preliminary examination of the charge and" and substitute:
that are committal proceedings relating to the charge or that relate
Part 2—Related amendment to Correctional Services Act 1982
3—Amendment of section 28—Removal of prisoner for criminal investigation, attendance in court etc
Section 28(1)—delete "preliminary examination" and substitute:
committal proceedings
Part 3—Related amendment to Criminal Investigation (Covert Operations) Act 2009
4—Amendment of section 30—Interpretation
Section 30(a)(iii)—delete "a preliminary examination" and substitute:
committal proceedings
Part 4—Related amendments to Criminal Law Consolidation Act 1935
5—Amendment of section 5—Interpretation
Section 5(1), definition of Full Court —delete the definition
6—Amendment of section 269E—Reservation of question of mental competence
Section 269E(3)—delete "the preliminary examination of" and substitute:
committal proceedings for
7—Amendment of section 269J—Order for investigation of mental fitness to stand trial
Section 269J(4)—delete "a preliminary examination of an indictable offence is conducted is of the opinion that the defendant may be mentally unfit to stand trial, the preliminary examination" and substitute:
committal proceedings for an indictable offence are conducted is of the opinion that the defendant may be mentally unfit to stand trial, the committal proceedings
8—Amendment of section 269X—Power of court to deal with defendant before proceedings completed
Section 269X(1)—delete "a preliminary examination" and substitute:
committal proceedings
9—Repeal of Part 9 Divisions 6 to 12
Part 9 Divisions 6 to 12—delete Divisions 6 to 12 (inclusive)
10—Repeal of Part 9 Division 15
Part 9 Division 15—delete the Division
Parts 10, 10A and 11—delete Parts 10, 10A and 11
12—Repeal of Schedules 1 to 3 and 10
Schedules 1 to 3 and 10—delete Schedules 1 to 3 (inclusive) and 10
Part 5—Related amendments to Criminal Law (Sentencing) Act 1988
After section 7C insert:
7D—Expert evidence
(1) If a defendant is to be sentenced for an indictable offence and expert evidence is to be presented to the court by the defence, written notice of intention to introduce the evidence must be given to the Director of Public Prosecutions—
(a) at least 28 days before the date appointed for submissions on sentence; or
(b) if the evidence does not become available to the defence until later—as soon as practicable after it becomes available to the defence.
(2) The notice must—
(a) set out the name and qualifications of the expert; and
(b) describe the general nature of the evidence and what it tends to establish.
(3) The court may, on application by a defendant, exempt the defendant from the obligation imposed by this section.
(4) If the defence proposes to introduce expert psychiatric evidence or other expert medical evidence relevant to the defendant's mental state or medical condition at the time of an alleged offence, the court may, on application by the prosecution, require the defendant to submit, at the prosecution's expense, to an examination by an independent expert approved by the court.
(5) If a defendant fails to comply with a requirement of or under this section, the evidence will not be admitted without the court's permission (but the court cannot allow the admission of evidence if the defendant fails to submit to an examination by an independent expert under subsection (4)
).
(6) If the prosecution receives notice under this section of an intention to introduce expert evidence less than 28 days before the day appointed for submissions on sentence, the court may, on application by the prosecution, adjourn the sentencing to allow the prosecution a reasonable opportunity to obtain expert advice on the proposed evidence.
(7) The court should grant an application for an adjournment under subsection (6)
unless there are good reasons to the contrary.
(8) The court may, on application by the prosecution, require the defendant to provide to the prosecution a copy of any report obtained by the defendant from a person proposed to be called to give expert evidence at the sentencing.
After section 10A insert:
10AB—Reduction of sentences for cooperation with procedural requirements
(1) If a defendant has not pleaded guilty to an indictable offence but the sentencing court is satisfied that the defendant complied with all statutory or court ordered requirements relating to pre-trial disclosure and procedures and has otherwise conducted their case in a cooperative and expeditious manner, the sentencing court may reduce the sentence that it would otherwise have imposed by up to 10%.
(2) In determining the percentage by which a sentence for an offence is to be reduced in accordance with this section, the court must have regard to—
(a) the impact of the proceedings on any victim of the offence; and
(b) the utilitarian benefit to the community of the defendant's conduct in relation to the proceedings,
and may have regard to any factor or principle the court thinks relevant.
(3) Nothing in this section affects the operation of sections 15, 16 and 17.
15—Amendment of section 10B—Reduction of sentences for guilty plea in Magistrates Court etc
(1) Section 10B(1)(a)—delete "sentencing court is the Magistrates Court" and substitute:
offence is a summary offence
(2) Section 10B(1)(b)—delete "matter dealt with" and substitute:
minor indictable offence that has been tried in the same way
(3) Section 10B(3)—delete subsection (3) and substitute:
(3) If—
(a) a maximum reduction available under subsection (2) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and
(b) the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—
(i) the court did not sit during that period; or
(ii) the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or
(iii) the court did not list the defendant's matter for hearing during that period; or
(iv) the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period; or
(v) the prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period,
the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.
(4) Section 10B(4)(a)—delete "shock the public conscience" and substitute:
, or may, affect public confidence in the administration of justice
16—Substitution of section 10C
Section 10C—delete the section and substitute:
10C—Reduction of sentences for guilty pleas in other cases
(1) This section applies to a court sentencing a defendant for an offence other than an offence described in section 10B(1).
(2) If —
(a) a defendant in any proceedings is pleading guilty to more than 1 offence; and
(b) this section applies to at least 1 of the offences,
this section will be taken to apply to all of the offences (despite section 10B(1)).
(3) If a defendant has pleaded guilty to an offence or offences—
(a) not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b) more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but on the day of, or before, the defendant's committal appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c) during the period commencing on the day after the defendant's committal appearance in relation to the relevant offence or offences and ending immediately before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;
Note—
See also section 110(3) of the Criminal Procedure Act 1921
(d) during the period commencing immediately after the defendant is committed for trial for the relevant offence or offences and ending immediately after the arraignment appearance of the defendant in a superior court—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;
(e) during the period commencing immediately after the defendant's arraignment appearance in a superior court in relation to the relevant offence or offences and ending at the commencement of the defendant's trial for the relevant offence or offences—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
(4) If—
(a) a maximum reduction available under subsection (3)
does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and
(b) the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—
(i) the court did not sit during that period; or
(ii) the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or
(iii) the court did not list the defendant's matter for hearing during that period; or
(iv) the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period; or
(v) after the making of the charge determination (within the meaning of section 106 of the Criminal Procedure Act 1921
)—the prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period,
the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.
(5) In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a) whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice;
(b) the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c) whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged;
(d) in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
(e) if the defendant satisfies the court that the defendant could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—that fact;
(f) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,
and may have regard to any factor or principle the court thinks relevant.
(6) Nothing in this section affects the operation of sections 15, 16 and 17.
(7) For the purposes of this section a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.
(8) Where proceedings have been instituted in a superior court by the Director of Public Prosecutions laying an information ex officio in accordance with section 103 of the Criminal Procedure Act 1921
, this section applies in relation to those proceedings with the modifications prescribed by the regulations.
(9) In this section—
committal appearance has the same meaning as in section 109 of the Criminal Procedure Act 1921
.
10D—Application of sentencing reductions
(1) For the purpose of applying section 10A, 10AB, 10B or 10C in sentencing a defendant for a particular offence, the sentencing court must—
(a) first determine the sentence that the court would apply but for the existence of those provisions; and
(b) then determine the maximum percentage reduction that is applicable to the sentencing in accordance with those provisions; and
(c) then determine the percentage reduction that is, in the opinion of the court, appropriate in the particular case (being not more than the maximum percentage determined in accordance with paragraph (b)
); and
(d) finally, apply the percentage reduction determined in accordance with paragraph (c)
to the sentence determined in accordance with paragraph (a)
.
(2) A sentencing court that wants to apply section 18A to sentence a defendant to a single penalty for more than 1 offence must, if the court would otherwise be required to apply section 10A, 10AB, 10B or 10C in sentencing the defendant for any 1 or more of those offences (the discounted offences ), determine, in accordance with subsection (1)
, the appropriate sentence for each discounted offence before applying section 18A to determine the total sentence (and for the purposes of section 18A, a reference to the maximum penalty that could be imposed in respect of an offence will, in the case of each discounted offence, be a reference to the sentence determined, in accordance with subsection (1)
, for that discounted offence).
Part 6—Related amendments to District Court Act 1991
17—Amendment of section 45—Non-application to criminal proceedings
Section 45—delete "Part 11 of the Criminal Law Consolidation Act 1935
" and substitute:
Part 6A of the Criminal Procedure Act 1921
18—Amendment of section 54—Accessibility to Court records
Section 54(2)(d) and (e)—delete "a preliminary examination" wherever occurring and substitute in each case:
committal proceedings
Part 7—Related amendments to Evidence Act 1929
19—Amendment of section 21—Competence and compellability of witnesses
Section 21(7)—delete "section 352(1)(a)(i) or (ii) of the Criminal Law Consolidation Act 1935
" and substitute:
section 157(1)(a)(i) or (ii) of the Criminal Procedure Act 1921
20—Amendment of section 34J—Special provision for taking evidence where witness is seriously ill
Section 34J(3)—delete "preliminary examination" and substitute:
committal proceedings
21—Amendment of section 34K—Admissibility of depositions at trial
(1) Section 34K(1)(a)—delete "the preliminary examination of a charge of an indictable offence or oral evidence is taken from a witness at a preliminary examination" and substitute:
committal proceedings relating to a charge of an indictable offence or oral evidence is taken from a witness in committal proceedings
(2) Section 34K(1)—delete "at the preliminary examination" and substitute:
in the committal proceedings
22—Amendment of section 59IQ—Appearance etc by audio visual link or audio link
Section 59IQ(5)(a)(ii)—delete "a preliminary examination of an indictable offence" and substitute:
an answer charge hearing (within the meaning of the Criminal Procedure Act 1921
)
23—Amendment of section 67D—Interpretation
Section 67D, definition of committal proceedings —delete "means proceedings for the preliminary examination of a charge of an indictable offence" and substitute:
—see Part 5 Division 3 of the Criminal Procedure Act 1921
24—Amendment of section 67G—Interpretation and application
Section 67G(1), definition of criminal proceedings , (a)—delete "proceedings for the preliminary examination of" and substitute:
committal proceedings for
25—Amendment of section 69AB—Review of suppression orders
Section 67AB(1)(a)(i) and (ii)—delete "a preliminary examination" wherever occurring and substitute in each case:
committal proceedings
26—Amendment of section 71A—Restriction on reporting on sexual offences
Section 71A(1)(a)—delete "a preliminary examination of" and substitute:
committal proceedings for
Part 8—Related amendment to Juries Act 1927
27—Amendment of section 7—Trial without jury
Section 7(3a)—delete "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)" and substitute:
section 103 of the Criminal Procedure Act 1921
and the information includes a charge of a serious and organised crime offence (within the meaning of the Criminal Law Consolidation Act 1935
)
Part 9—Related amendments to Magistrates Court Act 1991
28—Amendment of section 9—Criminal jurisdiction
Section 9(a)—delete "a preliminary examination of" and substitute:
committal proceedings for
29—Amendment of section 42—Appeals
Section 42(1)—delete "a preliminary examination" and substitute:
committal proceedings
30—Amendment of section 43—Reservation of question of law
Section 43(1)—delete "a preliminary examination of" and substitute:
committal proceedings for
31—Amendment of section 51—Accessibility to Court records
Section 51(2)(d) and (e)—delete "a preliminary examination" wherever occurring and substitute in each case:
committal proceedings
Part 10—Related amendments to Supreme Court Act 1935
32—Amendment of section 5—Interpretation
Section 5(1), definition of Full Court , (b)(ii)(A)—delete subsubparagraph (A) and substitute:
(A) section 165(3) of the Criminal Procedure Act 1921
; or
33—Amendment of section 131—Accessibility to court records
Section 131(2)(d) and (e)—delete "a preliminary examination" wherever occurring and substitute in each case:
committal proceedings
Part 11—Related amendment to Work Health and Safety Act 2012
34—Amendment of section 230—Prosecutions
Section 230(7)—delete "A preliminary examination" and substitute:
Committal proceedings
Part 12—Related amendments to Young Offenders Act 1993
35—Amendment of section 17—Proceedings on charge laid before Youth Court
Section 17(3)—delete "a preliminary examination of" and substitute:
committal proceedings in relation to
36—Amendment of section 17A—Proceedings on charge laid before Magistrates Court
Section 17A(2)—delete "preliminary examination" and substitute:
committal proceedings
37—Amendment of heading to Part 4 Division 2
Heading to Part 4 Division 2—delete "preliminary examination" and substitute:
committal proceedings
38—Amendment of section 19—Committal for trial
Section 19—delete "a preliminary examination is to be conducted by the Court, the procedure to be followed by and the powers of the Court are, subject to this Act, the same as for a preliminary examination" and substitute:
committal proceedings are to be conducted by the Court, the procedure to be followed by and the powers of the Court are, subject to this Act, the same as for committal proceedings
Part 13—Related amendments to Youth Court Act 1993
39—Amendment of section 22—Appeals
Section 22(1)—delete "a preliminary examination" and substitute:
committal proceedings
40—Amendment of section 23—Reservation of question of law
Section 23(1)—delete "a preliminary examination" and substitute:
committal proceedings
Part 14—Transitional provision
The amendments made by this Act apply to proceedings relating to an offence that are commenced after the commencement of this Act, regardless of when the offence occurred (and the Acts amended by this Act, as in force before the commencement of this Act, continue to apply to proceedings that were commenced before the commencement of this Act).