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Points of Law
The Summary Procedure (Indictable Offences) Amendment Bill 2016 (
the Procedure Bill
) and the Criminal Law (Sentencing) (Sentencing Reductions) Amendment Bill 2016 (
the Sentencing Reductions Bill
) propose wide-ranging and substantial changes to criminal procedure and the conduct of criminal trials in South Australia. The Society examined the proposed changes in relation to pre-committal provisions, post-committal provisions and sentencing discounts. A synopsis of our submissions on each topic follows. The full submission is available
1. Pre-Committal Provisions
The Society broadly supports provisions of the Procedure Bill which facilitate better completed and comprehensive disclosure to both the Prosecution and Defence at an earlier point in proceedings.
We are, however, concerned that the introduction of the Preliminary Brief under proposed section 106, will be the only information available to an Accused prior to his or her committal appearance, which has impacts in terms of the revised sentencing discounts. The Society also submits that there should be a requirement that the Accused be provided with a copy of the Police Apprehension Report at the same time they are provided with a copy of the Information, as well as the Election for Trial notice and detail about sentencing discounts. This allows the Accused to avail him or herself of any early plea discount and seek proper advice from his or her lawyer.
The Society does not support the introduction of section 107 of the Procedure Bill, which prohibits pre-committal subpoenas for major indictable matters (unless issued only for the purpose of compelling a witness to give oral evidence in committal proceedings).
Subpoenas should only be available in the committal process so that full disclosure can be made during that process, rather than waiting for committal to the District Court. The Society submits that imposing a blanket prohibition on the ability to issue a subpoena at this point in time is against the interests of a fair trial process for the Accused and, ultimately, contrary to the objectives of the Amendment Bills in facilitating early resolution of matters.
The Society is concerned with the process by which an Accused will be required to admit or not admit a charge on the basis of the information provided in the Preliminary Brief only, and the reduced sentencing discounts which will apply to pleas entered at a time when the full committal brief is available.
The Society submits that a process designed to facilitate pleas at an early stage, before sufficient disclosure to determine a “case to answer” is provided, will not work in practice where practitioners are compelled to provide advice to their clients on the basis of limited and incomplete information.
Notices relating to Committal Proceedings
The Society is concerned with both the timeframe and procedural requirements for the filing of a notice regarding a No Case to Answer or a request for oral examination of witnesses under section 112 of the Procedure Bill. The requirement to set this out in writing, prior to having received the Prosecution outline is unworkable and contrary to the established principles of fair trial procedure and the presumption of innocence until proven guilty.
2. Post-Committal Provisions
The Criminal List of the District Court currently over-lists the trial list by 175% (this is down 5% from previous over-listing practice). There is an expectation of clients, police and victims that when a trial date is set the matter will proceed. When that does not occur, it causes the relevant persons to become disgruntled with the system and lose confidence in the timely administration of justice. The Society submits that assistance in identifying and resolving matters earlier would be facilitated by earlier allocation of the Trial Prosecutor.
The Society is concerned that the requirement for case statements under section 23 of the Procedure Bill and the ramifications of failing to comply with that section, effectively amount to a reversal of the burden of proof and the settled position that the Prosecution must negate the elements of a defence beyond reasonable doubt.
Section 125(1) provides that a Case Statement is “binding on the Accused in those proceedings in accordance with this section”. The Society opposes section 125 in its entirety. Section 125 abrogates the right to silence. It is punitive in its approach and will be productive and causative of unfair trials. The section operates adversely to Defence and the fair trial of an Accused.
Statement of Agreed Facts
The provision of a Statement of Agreed Facts for sentence is utilised quite widely interstate and it is upon that basis that the Magistrate or Judge can impose sentence from the statement as agreed between prosecution and defence. The Society submits the same could be considered here in South Australia to streamline the sentencing process.
3. Sentencing Discounts
The Society does not support a revision of sentencing discounts at this stage; at the same time as the contemplated significant reforms to the criminal procedure process.
The Society submits that the procedural matters be finalised first and be given a period of operation, before reviewing any sentencing discount timeframes. It is important to maintain both the 40 per cent and the 30 per cent discounts in their current timeframe. The single greatest incentive for an Accused to enter a guilty plea early is the 30 per cent discount. Furthermore, the proposed requirement, that 30 per cent will only be available for pleas entered at Answer Charge if negotiations have been commenced within two weeks of the Committal appearance, will be difficult to implement in practice.