Summary Procedure (Indictable Offences) Amendment Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:03): Obtained leave and introduced a bill for an act to amend the Summary Procedure Act 1921 and to make related amendments to the Bail Act 1985; the Correctional Services Act 1982; the Criminal Investigation (Covert Operations) Act 2009; the Criminal Law Consolidation Act 1935; the Criminal Law (Sentencing) Act 1988; the District Court Act 1991; the Evidence Act 1929; the Juries Act 1927; the Magistrates Court Act 1991; the Supreme Court Act 1935; the Work Health and Safety Act 2012; the Young Offenders Act 1993 and the Youth Court Act 1993. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:05): I move:

That this bill be now read a second time.

The Summary Procedure (Indictable Offences) Amendment Bill 2016 improves how major indictable matters are dealt with within the criminal justice system. The changes are designed to enable courts, police, forensic services and prosecutors to focus their resources where they are most needed and ease the pressures on our court system by:

introducing a tiered prosecution disclosure regime that will allow for earlier disclosure of the primary evidence to defendants;

requiring major indictable matters to be the subject of a charged determination by the Director of Public Prosecutions prior to the commencement of committal proceedings;

giving the courts discretion to set realistic adjournment time frames that reflect the needs of individual cases and reduce unnecessary court appearances for major indictable matters when they are in the Magistrates Court;

requiring case statements to be filed by prosecution and defence prior to a matter being arraigned in the District Court or Supreme Court to identify the matters that are genuinely in dispute in contested matters, thus enabling the courts, the police, forensic and prosecution resources to focus on those issues;

changing the way subpoenas are issued in major indictable matters; and

refining the discounts on sentence that already exist where guilty pleas are entered early and introducing a discount representing an incentive for cooperative conduct of the defence case.

The bill supports and builds upon recent changes made by the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (the guilty pleas act) and the Statutes Amendment (Courts Efficiency Reforms) Act 2012 (the courts efficiency act), which have already positively impacted on the timing of guilty pleas for major indictable matters.

It also refines changes made to the Statutes Amendment (Criminal Procedure) Act 2005 which introduced provisions relating to defence disclosure into the Criminal Law Consolidation Act 1935. The bill includes an amendment to the Summary Procedure Act 1921 to implement recommendation 182 of the Child Protection Systems Royal Commission. I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Background

The latest data from the Report on Government Services 2016 indicates that notwithstanding the South Australian District Court had the second highest rate of criminal finalisations, 22% of the outstanding matters had been pending for over 12 months.

The Annual Report of the Office of the Director of Public Prosecutions for the 2014-2015 period shows that the reasons for vacated criminal trials in Adelaide across the Supreme and District Courts includes 35% that were vacated due to late guilty pleas. In addition, 14% were discontinued by the DPP, while almost 20% were vacated because there was no judge or court available.

The latter category is an unfortunate by-product of the practice of over-listing by the criminal courts. In the interest of efficiency, the court will list more matters than it can hear, based on the expectation that a number of listed criminal trials will resolve due to late guilty pleas and late withdrawals. However, there are often occasions where the number of matters resolving late is less than expected. This in turn means more trials are listed than there are available court rooms or judges to hear them, and some trials will have to be relisted to be heard on another date. These relisted trials then contribute to the backlog. They also contribute to stress and frustration for witnesses, and victims and the accused, and they represent wasted resources due to police, prosecutors, forensic services and defence practitioners preparing for a trial that is postponed.

It will not be possible to entirely eliminate the late resolution of matters in the criminal justice system. There will always be some defendants who delay the inevitable for as long as they possibly can, and only enter their plea on the doorstep of trial. There will always be some victims who decide at the last minute that they simply cannot face going to court.

However, the Government has committed to addressing backlogs within the Court system. Previous reforms have already begun, with success, to increase the number of guilty pleas being entered earlier in the process, rather than at the last minute.

The measures provided for in this Bill builds upon that success, and seeks to reduce the number of matters listed for trial only to resolve by late guilty plea or discontinuance by further encouraging the early resolution of major indictable matters and providing for the issues genuinely in dispute in a contested matter to be identified early. Early identification of the issues in dispute may shorten the overall length of a trial, and will provide greater certainty as to the expected length of a trial for listing purposes. As less matters are withdrawn or resolve late, it is anticipated that the need to 'over list' also reduces, thereby reducing the number of matters being vacated due to 'no judge available' and needing to be relisted in several months' time. It is anticipated that the backlog will reduce, and more trials will be heard the first time they are listed.

It is well known that if a matter is ultimately going to resolve by way of a guilty plea, it is better for victims, witnesses, the courts and all parties involved in the criminal justice system, for that plea to be entered as soon as possible. Late resolution creates stress and uncertainty for victims of crime and witnesses. This reform is intended to reduce that stress and uncertainty. It will also free up the resources of police, courts, the DPP and forensic services from attending court hearings and preparing for matters that do not ultimately proceed, so that they can focus on the matters that do.

Summary of the Bill

Changes to the Committal Process

The existing process of SAPOL arresting or reporting a suspect and appearing for the prosecution at the first court appearance will be retained. This will be known as 'pre-committal'.

The current system of scheduling court hearings in the lower court will be improved. Currently, it is commonplace for a hearing date to be scheduled and then for adjournments to be sought because more time is needed to gather evidence. This occurs even though it was known at the outset that certain types of evidence would not be ready by the scheduled hearing date.

The Bill introduces a system of tiered disclosure and charge determination by the DPP for matters commenced by SAPOL which are to be subsequently prosecuted by the State DPP. Both of these concepts were considered in detail, and recommended by the NSW Law Reform Commission in its report 'Encouraging appropriate early guilty pleas' tabled in the NSW Parliament in June 2015. The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse suggested, in its Consultation Paper on Criminal Justice released in September 2016, that the approach recommended by the NSW Law Reform Commission is a model that governments might consider to encourage early and appropriate guilty pleas.

Under this system, SAPOL will inform the Magistrates Court at the first hearing of the time required to provide a preliminary brief taking into account the specific requirements of the case. The Magistrates Court will adjourn the matter for an appropriate amount of time to enable provision of the preliminary brief, plus four weeks to give time to the DPP to consider the preliminary brief and make a charge determination. This will reduce the need for multiple adjournments to enable evidence to be obtained in cases where it was known at the outset that material such as e-crime, forensic material, or telephone interception material simply could not be provided within the timeframes set.

The 'pre-committal' stage permits court oversight in relation to the 'holding' charge. This provides important protections to the defendant, such as ensuring reasonable timeframes for the collation of the preliminary brief, and as to the conditions of bail. As noted above, the defendant can still elect to plead guilty during this stage, thereby securing a higher discount (in the majority of cases), if they choose to do so.

The preliminary brief will contain the key evidence available to prove the elements of the offence alleged to have been committed. In some cases, this may include evidence that is not in a technically admissible form but which is available in a timely way, is reliable, and is sufficient for both the prosecution and defence to understand what evidence exists and is capable of being provided should the matter go to trial. The precise content of the brief is not prescribed under the Bill. This is intentional, as those requirements will vary between cases and types of cases. It is intended that the DPP will determine what evidence will be sufficient to make a charge determination. The DPP will provide training and guidance to SAPOL to ensure that the expectations are clear, and the two agencies will work together to ensure the efficiency of this process.

The DPP is required to consider the preliminary brief and make the charge determination before the committal proceedings can commence. The DPP will consider whether there is enough evidence to support the charge. Because this decision is not made until the preliminary brief has been provided, this ensures the charges better reflect the criminal culpability of the defendant. This should reduce the number of matters which are withdrawn later in the process. It should also reduce the number of matters where the charge is amended by the prosecution due to the late receipt of evidence. This in turn ensures that the defendant knows the charge has been reviewed by the DPP, and reduces any incentive to delay pleading guilty based on a belief that the prosecution is likely to amend the charges as the matter proceeds.

Currently, some defendants complain that they cannot consider whether to plead guilty early in the proceedings because of a lack of disclosure of the evidence against them. Under the Bill, the prosecution is required to provide a document containing a brief description of the allegations on or before the first court appearance. In most cases, this is likely to be the narrative portion of the Police Apprehension Report, which is currently provided as a matter of practice. The inclusion of this requirement in the Bill is in response to a request by the Law Society of South Australia and the South Australian Bar Association, to assist them in providing early advice to their clients.

In addition, under the Bill, the charges following charge determination are based on better, more complete information than is currently the case. The preliminary brief is provided to the defendant before the committal proceedings commence, as soon as practicable after it has been provided to the DPP. The only reason it is not provided at the same time is due to logistical impossibility, but the clear intention is that they will receive it as early as possible. This will give the defendant better understanding of the case against them by the time the charge determination is made. If they do not plead guilty at the committal appearance following the charge determination, the Magistrates Court will adjourn to enable provision of the committal brief, which will include further evidence that was not part of the preliminary brief, or which was provided but was not in a technically admissible form. Again, the Magistrates Court will consider the specific requirements of the case when setting timeframes to avoid unnecessarily adjourning matters later. After the committal brief has been provided, the defendant will be required to indicate whether they will plead guilty or not guilty.

If a defendant pleads not guilty, they will be committed to the District or Supreme Court for trial.

The Court will be able to vary these procedures as necessary to accommodate matters not commenced by SAPOL and prosecuted by the DPP, such as Commonwealth Prosecutions.

Case Statements

Before the first hearing in the District or Supreme Court (the Arraignment), both prosecution and defence will be required to prepare a 'case statement'. The prosecution has to provide their case statement first, at least 6 weeks before the Arraignment. It will set out a summary of the facts alleged against the defendant, a description of the evidence they rely on in relation to each 'element' of the offence, and other procedural matters such as which witnesses they intend to call at trial and other applications they will be making (this could include things like asking for a witness to give evidence via CCTV).

The defendant will be required to prepare a case statement in response, within four weeks of receiving the prosecution case statement. The defendant's case statement will set out any facts or elements they agree with based on the prosecution statement, indicate whether they consent to any of the prosecution applications, and set out whether they intend to raise various issues such as challenging the admissibility of a police search or a police interview, or whether they want the prosecution to prove 'routine' matters such as the chain of evidence on an exhibit. The defendant will also be required to set out any defences he or she intends to rely on.

If the defendant does not comply with the requirement to provide this information, they may not be permitted to lead evidence at trial inconsistent with their case statement. If they conduct their trial in a way that is contrary to the position taken in their case statement, the court or a party to the proceedings may be allowed to make comment about that to the jury.

The concept of prosecution and defence case statements is not a new one. Other Australian jurisdictions have also implemented reforms based on these concepts. By way of comparison, NSW introduced mandatory disclosure provisions in similar terms to those contained in the Bill in 2013. Victoria and Western Australia also have provisions for the provision of prosecution summaries or statements, and corresponding defence responses.

As far back as 1999, the Standing Committee of Attorney's-General (SCAG) working group chaired by Brian Martin QC (as he then was) on criminal trial procedure, recommended the introduction of a form of prosecution and defence case statements. These recommendations were repeated by the Duggan Committee, which reported 'we accept that the right to silence which is based on the rule against self-incrimination is not diminished by a requirement to indicate certain specific defences which might be raised, what challenges are to be made to the prosecution evidence or what expert evidence might be adduced in support of the defence case. We do not agree that requirements to disclose such information could in any sense affect the burden of proof. The presumption of innocence which provides the rationale for the burden of proof would be similarly unaffected'.

In 2005, the Government introduced the Statutes Amendment (Criminal Procedure) Act 2005 to enact reforms recommended by the SCAG, the Duggan Committee and the Kapunda Road Royal Commissioner. That Act contained provisions which required defence disclosure prior to trial in relation to expert evidence proposed to be led, and inserted existing section 285BB into the CLCA. That section is discretionary. It provides that the court may make orders requiring the disclosure of specific defences of its own motion or on the application of the DPP. The orders may only be made if the court is satisfied that the prosecution has provided the defence with an outline of the prosecution case, and there are no existing but unfulfilled obligations of prosecution disclosure. The provision also provides for orders to be made for defence to advise whether it consents to the dispensing of calling of certain witnesses. The provision commenced on 1 March 2007 but is rarely, if ever, used. Clause 123 of the Bill replicates the effect of the existing s285BB. However, rather than requiring an application to be made before the provisions apply, it requires the provision of case statements as a matter of course, in a similar way to the provisions enacted in NSW.

Subpoenas

The Procedure Bill changes the way that parties can apply for a subpoena to obtain documentary evidence in major indictable matters. While a matter is in the Magistrates Court, if a party wants to issue a subpoena (other than a subpoena to call a witness to give evidence) they will only be able to do so if the prosecution and any party to whom the subpoena is directed agrees, or if a magistrate has considered the application. In the superior court, a subpoena may only be issued if the party seeking it has filed their case statement, and the parties (including the party to whom it is directed) agree, or a master or judge of the court is satisfied that the subpoena would be likely to provide material of relevance to matters that will be in issue at the trial. This will ensure that subpoenas are only issued in cases where there is a legitimate basis for doing so.

Sentencing Reductions

The Guilty Pleas Act commenced in March 2013. Its main objective was to improve the operation and effectiveness of the criminal justice system by reducing current delays and backlogs in cases coming to trial; by encouraging offenders who are minded to plead guilty to do so in a timely way.

In 2015 the Honourable Brian Martin AO QC reviewed the operation of the Guilty Pleas Act. His report was tabled in the House of Assembly on 17 November 2015. He found that the Guilty Pleas Act had had a significant impact on the number of guilty pleas entered in respect of major indictable matters at an early stage of proceedings, and that the increase in early pleas was improving the operation and effectiveness of the criminal justice system. The statistics reported to the Honourable Mr Martin by the Office of Crime Statistics and Research support that conclusion. In the three years prior to the commencement of the Guilty Pleas Act, the percentage of guilty pleas occurring prior to committal to the District Court ranged between 38% to 52%. This figure increased to 62% in the 12 months after the commencement of the Guilty Pleas Act.

There was an increase in the percentage of matters finalised within the first 4 weeks of the first appearance from as low as 4% to 6% in the three years preceding the commencement of the Guilty Pleas Act to 8.5% in the 12 months post commencement. There was a corresponding decrease in the number of matters finalised by guilty plea in the superior courts. For example, the percentage of major indictable matters finalised by guilty plea more than 12 weeks post arraignment ranged from 25% to 32.5% in the three years prior to the commencement of the Guilty Pleas Act. This decreased to 16% in the 12 months post the introduction of the discount scheme. These figures demonstrate the success of the reform in bringing forward those matters where a guilty plea is appropriate—shifting the timing from the 'doorstep of trial' to much earlier in the process.

Notwithstanding the success of that reform, the Hon Mr Martin recommended several small improvements in his report. The Government has considered those recommendations and, where appropriate, implemented them or responded to them in the Bill.

The Bill amends the Criminal Law (Sentencing) Act 1988 (the Sentencing Act), including:

amending the timing and quantum of sentencing reductions applicable in consequence of the reform package;

introducing a maximum 10% reduction as an incentive for complying with pre-trial disclosure and for cooperative conduct of the defence case;

ensuring that the court has regard to the timing of negotiations where those negotiations result in a different charge being laid to replace an earlier charge in respect of the same conduct; and

setting out the process for applying the available sentencing reductions.

One particular issue that the Hon Mr Martin raised for consideration was the interpretation of the current discount scheme provisions by the Court of Criminal Appeal (CCA) as demonstrated in R v Muldoon [2015] SASFC 69. The original intention of the Guilty Pleas Act was to limit the availability of the maximum 40% discount to an offender who pleads guilty to an offence within the first four weeks after their first appearance. However, where negotiations have taken place much later than 4 weeks after the first appearance, and result in a different offence being substituted for the original offence, the CCA has held that the time limits re-start upon the filing of the new offence.

It was never the intention of the scheme to permit a defendant who declines to negotiate until the doorstep of trial to merit a 40% reduction on sentence if those very late negotiations result in a different charge being laid. Those negotiations should be taking place much earlier. To address this, the Bill includes a new provision that requires the court to consider, when determining the appropriate percentage reduction to apply, whether the defendant was initially charged with a different offence in relation to the same conduct, and whether (and at what stage in the proceedings) negotiations occurred.

Where negotiations result in a guilty plea to a different charge within a few weeks after the first appearance, the defendant could, in the ordinary course, expect the court to apply a reduction towards the upper end of the 40% discount range. Where a defendant who does not attempt to negotiate until the week before trial and ultimately pleads guilty to a different charge following those negotiations, they will be eligible for the maximum 40%. However, when the court considers the appropriate discount to apply, that defendant should expect to receive a discount significantly less than 40% in the ordinary course, to reflect the very late timing of their negotiations. Conversely, if a defendant offers to plead to an alternative charge early in the proceedings, but the prosecution does not accept that offer until the last moment, the court would be entitled to take that into account in the defendant's favour when determining the appropriate discount.

Provision has also been made to enable the court to take into account the situation where a defendant who has attempted to negotiate with the DPP has been unable to finalise those negotiations within the relevant time period for reasons outside of their control. This could include a situation where the prosecutor was unable to consult with a victim as required by the Victims of Crime Act 2001 within the stipulated time period and was therefore unable to finalise negotiations.

Other changes to the timing of the relevant maximum discounts have been made to correlate to the process changes in the Bill. In addition, a maximum discount of 10% may apply where a defendant has not pleaded guilty, but is found guilty following trial, where the court is satisfied that the defendant complied with all the statutory or court ordered pre-trial disclosure and procedures, and has otherwise conducted their case in a cooperative and expeditious manner.

Creation of a 'Criminal Procedure' Act

The existing legislative provisions that govern criminal procedure are split between the Summary Procedure Act and the CLCA. The Bill shifts those parts of the CLCA that relate to purely procedural matters into the Summary Procedure Act. The Summary Procedure Act will be renamed the Criminal Procedure Act to reflect that it now governs criminal procedure generally. There have not been substantial amendments to those procedural provisions that do not relate specifically to this reform proposal; the 'shift' is purely to finally bring all of the criminal procedure provisions together. It is not intended that those provisions be reviewed at this time.

Recommendation of the Royal Commission

The Child Protection Systems Royal Commission recommended amendment of section 104 of the Summary Procedure Actto permit a transcript of a recorded interview with a child under the age of 14 years to be filed in committal proceedings where the transcript has been verified by a person in attendance other than an investigating officer.

This recommendation arose in the context of situations where there may be a forensic interview conducted during a Care Concern Investigation, where SAPOL may not yet be involved, but where a disclosure is ultimately made. It is intended that in those cases, the interview transcript should be able to be verified so that it is admissible at subsequent committal proceedings in a criminal matter. The report of the Royal Commission noted that it is not intended for the power to have someone other than a police officer verify the transcript to be used other than in special circumstances. Further, in some cases there may be a person in attendance who should not be permitted to verify the transcript, such as a support person or family member. The categories of person who may perform this role will be prescribed by regulation.

Conclusion

The government has been actively involved in improving the criminal justice system in recent years. Many of the problems currently faced by our criminal justice system are not unique to South Australia; indeed they are similar to problems faced in other Australian jurisdictions. In framing this reform, the government has considered reforms and proposed reforms in other jurisdictions, with a view to learning what is working, and indeed, what is not working elsewhere. While it often seems that everyone has a view on how to improve the criminal justice system, it is clear that no one has come up with the perfect solution. It is a complex area, with competing rights, expectations, protections and objectives to be balanced. It is time to look at the recent reforms and build upon the successes. It is also time to revise practices that no longer serve their purpose or achieve the results that society expects, and to improve them. That is what these Bills do.

It is anticipated that given the remaining time in the Parliamentary calendar this year, debate on the Bill will not be completed until the 2017 Parliamentary sittings. This provides additional opportunity for those with an interest in the Bill to make contribution for consideration as the Bill progresses.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Summary Procedure Act 1921

4—Amendment of long title

This clause amends the long title of the Act to remove the reference to the Magistrates Court.

5—Amendment of section 1—Short title

This clause amends the Short title of the Act to reflect the broadened scope of the Act by substituting the reference to 'Summary' Procedure with a reference to 'Criminal' Procedure.

6—Amendment of section 4—Interpretation

This clause inserts definitions in the principal Act for the purposes of the measure.

7—Substitution of Part 5

This clause substitutes Part 5 of the principal Act as follows:

Part 5—Indictable offences

Division 1—Informations

100—Informations charging indictable offences

The inserted section sets out the matters that an information must contain. It incorporates much of section 277 of the Criminal Law Consolidation Act 1935.

101—Laying of information

The provision substantially re-enacts section 101 of the principal Act.

102—Joinder and separation of charges

The proposed section substantially re-enacts section 278 of the Criminal Law Consolidation Act 1935 and sections 102(1) to (4) and 103(4) to (5) of the principal Act.

103—DPP may lay information in superior court

The provision substantially re-enacts section 275 of the Criminal Law Consolidation Act 1935.

Division 2—Pre-committal hearings etc

104—Securing attendance in Magistrates Court

The provision substantially re-enacts existing section 103(1) of the principal Act.

105—Pre-committal hearings and documents

The provision substantially re-enacts section 103(2) of the principal Act. It also sets out the requirement for the defendant to be given notice of other matters at the defendant's first appearance in the Magistrates Court in relation to the charge and contains a new provision on adjournment of the defendant's first court appearance.

106—Indictable matters commenced by SA Police

The inserted section sets out the provisions to be followed in circumstances where SA Police have been the investigating authority but the matter is to be subsequently prosecuted by the DPP. The section deals with the provision of the preliminary brief by SAPOL, the making of the charge determination by the DPP and other matters relating to the hand-over of proceedings from SAPOL to the DPP.

107—Pre-committal subpoenas

The inserted section sets out the circumstances in which (and authority by which) a subpoena may be issued before committal proceedings have been completed.

Division 3—Committal proceedings

108—Division not to apply to certain matters

The provision substantially re-enacts current section 103(3) and (3aa) of the principal Act.

109—Committal proceedings generally

This inserted provision sets out the committal proceedings for an indictable offence. It also substantially re-enacts sections 105(3), (4) and (5) of the principal Act.

110—Committal appearance

The inserted provision sets out the processes to be followed during the defendant's committal appearance in the Magistrates Court according to whether the defendant admits the charge.

111—Committal brief etc

The inserted provision substantially re-enacts current section 104 of the principal Act. The provision also facilitates the making of witness statements in the form of an audio visual record or audio record in the case of certain witnesses and implements recommendation 182 of the Child Protection Systems Royal Commission Report relating to witness statements in the form of a record of interview.

112—Notices relating to committal proceedings

The proposed section provides that a defendant charged with an indictable offence may give notice indicating that the defendant intends to assert that there is no case to answer. The defendant may give notice requesting the oral examination of a witness in committal proceedings. The provision sets out the requirement to file a notice under the section.

113—Conduct of answer charge hearing

Proposed subsections (1) and (2) substantially re-enact current section 105(1) and (2) of the principal Act. Proposed subsection (3) provides that the Court need not consider the evidence to determine whether it is sufficient to put the defendant on trial for an offence where a defendant who is represented by a legal practitioner concedes that there is a case to answer in relation to the offence.

114—Taking evidence at committal proceedings

The inserted section substantially re-enacts current section 106 of the principal Act with the addition of proposed subsection (1)(d) which is consequential on the ability of a defendant to file a notice in accordance with proposed section 112(1).

115—Evaluation of evidence at committal proceedings

The inserted provision substantially re-enacts current section 107(1) to (3) and (5) and (6) of the principal Act.

Division 4—Forum for trial or sentence

116—Forum for sentence

The inserted section substantially re-enacts current sections 108 and 114 of the principal Act. The provision also provides that the Magistrates Court may sentence a person for a minor or major indictable offence in the same way as for a summary offence and that, in relation to sentencing of indictable offences, the Magistrates Court is to observe procedural rules specifically applicable to indictable offences.

117—Forum for trial

Proposed subsection (1) provides that a trial of a minor indictable offence (where the defendant has not elected for trial in a superior court) is to be conducted in the same way as a trial of a summary offence. Proposed section 117(2) substantially re-enacts current section 107(4) of the principal Act. Proposed section 117(3) substantially re-enacts current section 114 of the principal Act. Proposed section 117(4) substantially re-enacts current section 109 of the principal Act.

118—Change of forum

Proposed section 118 substantially re-enacts current section 110 of the principal Act.

119—Change of plea following committal for sentence

Proposed section 119 provides for a more limited ability for a change of plea following committal than exists in current section 111 of the principal Act so that a person who has been committed to a superior court for sentence in relation to a particular charge of an offence may only enter a change of plea in the superior court with the permission of the court.

Division 5—Procedure following committal for trial or sentence

120—Fixing of arraignment date and remand of defendant

Proposed section 120 sets out the matters that the Magistrates Court must have regard to when fixing a date for a defendant's arraignment after having committed the defendant to a superior court for trial.

121—Material to be forwarded by Registrar

The provision substantially re-enacts section 113 of the principal Act.

122—Prosecution may decline to prosecute

The provision substantially re-enacts section 276 of the Criminal Law Consolidation Act 1935.

123—Case statements

The proposed section sets out the requirement for the prosecution to present an information and a prosecution case statement once the Magistrates Court commits a defendant charged with an indictable offence to a superior court for trial. The provision sets out that matters that must be included in a prosecution case statement.

The proposed section sets out the requirement for a defendant committed to a superior court for trial on a charge of an indictable offence to file and give to the prosecution a defence case statement. The provision sets out the matters that must be included in a defence case statement.

124—Expert evidence and evidence of alibi

The proposed section substantially re-enacts sections 285C(1), (2) and (4) and 285C(1) to (3) of the Criminal Law Consolidation Act 1935 but requires notice to be given in conjunction with the defence case statement.

125—Failure to comply with disclosure requirements

The provision sets out the consequences that may flow from a failure to comply with disclosure requirements (being the requirements applying under proposed section 123 and 124).

126—Subpoenas

The proposed section provides for the issuing of subpoenas after a matter has been committed to a superior court.

127—Prescribed proceedings

The provision substantially re-enacts section 275(3) and (5) of the Criminal Law Consolidation Act 1935.

Division 6—Pleas and proceedings on trial in superior court

128—Objections to informations in superior court, amendments and postponement of trial

The provision substantially re-enacts section 281 of the Criminal Law Consolidation Act 1935.

129—Plea of not guilty and refusal to plead

The provision substantially re-enacts section 284 of the Criminal Law Consolidation Act 1935.

130—Form of plea of autrefois convict or autrefois acquit

The provision substantially re-enacts section 285 of the Criminal Law Consolidation Act 1935.

131—Certain questions of law may be determined before jury empanelled

The provision substantially re-enacts section 285A of the Criminal Law Consolidation Act 1935.

132—Determinations of court binding on trial judge

The provision substantially re-enacts section 285AB of the Criminal Law Consolidation Act 1935.

133—Conviction on plea of guilty of offence other than that charged

The provision substantially re-enacts section 285B of the Criminal Law Consolidation Act 1935.

134—Inspection and copies of depositions

The provision substantially re-enacts section 286 of the Criminal Law Consolidation Act 1935.

135—Defence to be invited to outline issues in dispute at conclusion of opening address for the prosecution

The provision substantially re-enacts section 288A of the Criminal Law Consolidation Act 1935.

136—Right to call or give evidence

The provision substantially re-enacts section 288AB of the Criminal Law Consolidation Act 1935.

137—Right of reply

The provision substantially re-enacts section 288B of the Criminal Law Consolidation Act 1935.

138—Postponement of trial

The provision substantially re-enacts section 289 of the Criminal Law Consolidation Act 1935.

139—Verdict for attempt where full offence charged

The provision substantially re-enacts section 290 of the Criminal Law Consolidation Act 1935.

Part 6—Limitations on rules relating to double jeopardy

Division 1—Preliminary

140—Interpretation

The provision substantially re-enacts section 331 of the Criminal Law Consolidation Act 1935.

141—Meaning of fresh and compelling evidence

The provision substantially re-enacts section 332 of the Criminal Law Consolidation Act 1935.

142—Meaning of tainted acquittal

The provision substantially re-enacts section 333 of the Criminal Law Consolidation Act 1935.

143—Application of Part

The provision substantially re-enacts section 334 of the Criminal Law Consolidation Act 1935.

Division 2—Circumstances in which police may investigate conduct relating to offence of which person previously acquitted

144—Circumstances in which police may investigate conduct relating to offence of which person previously acquitted

The provision substantially re-enacts section 335 of the Criminal Law Consolidation Act 1935.

Division 3—Circumstances in which trial or retrial of offence will not offend against rules of double jeopardy

145—Retrial of relevant offence of which person previously acquitted where acquittal tainted

The provision substantially re-enacts section 336 of the Criminal Law Consolidation Act 1935.

146—Retrial of Category A offence of which person previously acquitted where there is fresh and compelling evidence

The provision substantially re-enacts section 337 of the Criminal Law Consolidation Act 1935.

147—Circumstances in which person may be charged with administration of justice offence relating to previous acquittal

The provision substantially re-enacts section 338 of the Criminal Law Consolidation Act 1935.

Division 4—Prohibition on making certain references in retrial

148—Prohibition on making certain references in retrial

The provision substantially re-enacts section 339 of the Criminal Law Consolidation Act 1935.

Part 6A—Appeals

Division 1—Appeal against sentence

149—Appeal against sentence

The provision substantially re-enacts section 340 of the Criminal Law Consolidation Act 1935.

Division 2—Other appeals

150—Interpretation

The provision substantially re-enacts section 348 of the Criminal Law Consolidation Act 1935.

151—Court to decide according to opinion of majority

The provision substantially re-enacts section 349 of the Criminal Law Consolidation Act 1935.

152—Reservation of relevant questions

The provision substantially re-enacts section 350 of the Criminal Law Consolidation Act 1935.

153—Case to be stated by trial judge

The provision substantially re-enacts section 351 of the Criminal Law Consolidation Act 1935.

154—Powers of Full Court on reservation of question

The provision substantially re-enacts section 351A of the Criminal Law Consolidation Act 1935.

155—Costs

The provision substantially re-enacts section 351B of the Criminal Law Consolidation Act 1935.

156—Right of appeal in criminal cases

The provision substantially re-enacts section 352 of the Criminal Law Consolidation Act 1935.

157—Determination of appeals in ordinary cases

The provision substantially re-enacts section 353 of the Criminal Law Consolidation Act 1935.

158—Second or subsequent appeals

The provision substantially re-enacts section 353A of the Criminal Law Consolidation Act 1935.

159—Powers of Court in special cases

The provision substantially re-enacts section 354 of the Criminal Law Consolidation Act 1935.

160—Right of appeal against ancillary orders

The provision substantially re-enacts section 354A of the Criminal Law Consolidation Act 1935.

161—Revesting and restitution of property on conviction

The provision substantially re-enacts section 355 of the Criminal Law Consolidation Act 1935.

162—Jurisdiction of Full Court

The provision substantially re-enacts section 356 of the Criminal Law Consolidation Act 1935.

163—Enforcement of orders

The provision substantially re-enacts section 356A of the Criminal Law Consolidation Act 1935.

164—Appeal to Full Court

The provision substantially re-enacts section 357 of the Criminal Law Consolidation Act 1935.

165—Supplemental powers of Court

The provision substantially re-enacts section 359 of the Criminal Law Consolidation Act 1935.

166—Presence of appellant or respondent on hearing of appeal

The provision substantially re-enacts section 361 of the Criminal Law Consolidation Act 1935.

167—Director of Public Prosecutions to be represented

The provision substantially re-enacts section 362 of the Criminal Law Consolidation Act 1935.

168—Costs of appeal

The provision substantially re-enacts section 363 of the Criminal Law Consolidation Act 1935.

169—Admission of appellant to bail and custody when attending Court

The provision substantially re-enacts section 364 of the Criminal Law Consolidation Act 1935.

170—Duties of registrar with respect to notices of appeal etc

The provision substantially re-enacts section 365 of the Criminal Law Consolidation Act 1935.

171—Notes of evidence on trial

The provision substantially re-enacts section 366 of the Criminal Law Consolidation Act 1935.

Division 3—References on petitions for mercy

172—References by Attorney-General

The provision substantially re-enacts section 369 of the Criminal Law Consolidation Act 1935.

8—Insertion of sections 175 to 180

This clause inserts section 175 to 180.

175—Proceedings other than State criminal proceedings

This clause allows for the making of rules of court modifying procedures in relation to proceedings for offences other than State criminal offences (which are defined as summary offences where SAPOL is both the investigation authority and prosecution authority and indictable offences where SAPOL is the investigating authority and the DPP is or may be the prosecution).

176—Overlapping offences

The provision substantially re-enacts section 330 of the Criminal Law Consolidation Act 1935.

177—Proceedings against corporations

The provision substantially re-enacts section 291 of the Criminal Law Consolidation Act 1935.

178—Defects cured by verdict

The provision substantially re-enacts section 294 of the Criminal Law Consolidation Act 1935.

179—Forfeiture abolished

The provision substantially re-enacts section 295 of the Criminal Law Consolidation Act 1935.

180—Orders as to firearms and offensive weapons

The provision substantially re-enacts section 299A of the Criminal Law Consolidation Act 1935.

9—Amendment of section 189B—Costs in committal proceedings

The clause amends section 189B to provide that costs will not be awarded against a party to committal proceedings for an indictable offence unless the Magistrates Court is satisfied that the party has unreasonably obstructed the proceedings.

10—Insertion of section 191A

This clause inserts a review provision in the principal Act (relating to new Part 5 Divisions 2, 3, 4 and 5).

Schedule 1—Statute Law Revision Amendments to Summary Procedure Act 1921

Schedule 1 makes amendments throughout the principal Act to the various references to 'Court' or 'court'. In doing so, it substitutes the various references so that they become references specifically to the Magistrates Court.

Schedule 2—Related amendments and transitional provisions

Part 1—Related amendment to Bail Act 1985

1—Amendment of section 3A—Serious and organised crime suspects

The amendment updates a statutory reference as a result of the amendments in Part 2 of this Act.

2—Amendment of section 6—Nature of bail agreement

This changes a reference to a 'preliminary examination' to a reference to 'committal proceedings'.

Part 2—Related amendment to Correctional Services Act 1982

3—Amendment of section 28—Removal of prisoner for criminal investigation, attendance in court etc

This changes a reference to a 'preliminary examination' to a reference to 'committal proceedings'.

Part 3—Related amendment to Criminal Investigation (Covert Operations) Act 2009

4—Amendment of section 30—Interpretation

This changes a reference to a 'preliminary examination' to a reference to 'committal proceedings'.

Part 4—Related amendments to Criminal Law Consolidation Act 1935

5—Amendment of section 5—Interpretation

This clause removes a definition that is now unnecessary due to the shifting of provisions from this Act to the Summary Procedure Act 1921.

6—Amendment of section 269E—Reservation of question of mental competence

7—Amendment of section 269J—Order for investigation of mental fitness to stand trial

8—Amendment of section 269X—Power of court to deal with defendant before proceedings completed

These 3 clauses change references to a 'preliminary examination' to references to 'committal proceedings'.

9—Repeal of Part 9 Divisions 6 to 12

10—Repeal of Part 9 Division 15

11—Repeal of Parts 10 to 11

12—Repeal of Schedules 1 to 3 and 10

The provisions repealed by these 4 clauses are largely reproduced in many of the provisions inserted by clauses 7 and 8 of this Act.

Part 5—Related amendments to Criminal Law (Sentencing) Act 1988

13—Insertion of section 7D

This clause inserts a new provision (mirroring content currently in section 285BC of the Criminal Law Consolidation Act 1935) on notice of expert evidence in sentencing proceedings.

14—Insertion of section 10AB

This clause inserts a new section 10AB providing for a reduction of sentence of up to 10% where 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.

15—Amendment of section 10B—Reduction of sentences for guilty plea in Magistrates Court etc

This clause reduces the scope of this section (so that indictable offences dealt with by an early plea in the Magistrates Court will now be dealt with under proposed section 10C), makes subsection (3) consistent with proposed new section 10C(4) and makes minor changes to the wording.

16—Substitution of section 10C

This clause inserts new section 10C dealing with sentencing for offences other than those to which section 10B applies. The clause provides for a range of sentencing reductions (up to a maximum of 40%) to apply to guilty pleas entered at different stages of a matter's progress through the courts. These stages link to stages set out in the new provisions to be included in the Summary Procedure Act 1921. Also inserted in new section 10D which explains how the sentencing reductions are to be applied.

Part 6—Related amendment to District Court Act 1991

17—Amendment of section 45—Non-application to criminal proceedings

The amendment updates a statutory reference as a result of the amendments in Part 2 of this Act.

18—Amendment of section 54—Accessibility to Court records

This changes a reference to a 'preliminary examination' to a reference to 'committal proceedings'.

Part 7—Related amendment to Evidence Act 1929

19—Amendment of section 21—Competence and compellability of witnesses

The amendment updates a statutory reference as a result of the amendments in Part 2 of this Act.

20—Amendment of section 34J—Special provision for taking evidence where witness is seriously ill

21—Amendment of section 34K—Admissibility of depositions at trial

22—Amendment of section 59IQ—Appearance etc by audio visual link or audio link

23—Amendment of section 67D—Interpretation

24—Amendment of section 67G—Interpretation and application

25—Amendment of section 69AB—Review of suppression orders

26—Amendment of section 71A—Restriction on reporting on sexual offences

These 7 clauses change references to a 'preliminary examination' to references to 'committal proceedings' (or an answer charge hearing).

Part 8—Related amendment to Juries Act 1927

27—Amendment of section 7—Trial without jury

The amendment updates a statutory reference as a result of the amendments in Part 2 of this Act.

Part 9—Related amendments to Magistrates Court Act 1991

28—Amendment of section 9—Criminal jurisdiction

29—Amendment of section 42—Appeals

30—Amendment of section 43—Reservation of question of law

31—Amendment of section 51—Accessibility to Court records

These 4 clauses change references to a 'preliminary examination' to references to 'committal proceedings'.

Part 10—Related amendment to Supreme Court Act 1935

32—Amendment of section 5—Interpretation

The amendment updates a statutory reference as a result of the amendments in Part 2 of this Act.

33—Amendment of section 131—Accessibility to court records

This changes a reference to a 'preliminary examination' to a reference to 'committal proceedings'.

Part 11—Related amendment to Work Health and Safety Act 2012

34—Amendment of section 230—Prosecutions

This changes a reference to a 'preliminary examination' to a reference to 'committal proceedings'.

Part 12—Related amendments to Young Offenders Act 1993

35—Amendment of section 17—Proceedings on charge laid before Youth Court

36—Amendment of section 17A—Proceedings on charge laid before Magistrates Court

37—Amendment of heading to Part 4 Division 2

38—Amendment of section 19—Committal for trial

These 4 clauses change references to a 'preliminary examination' to references to 'committal proceedings'.

Part 13—Related amendments to Youth Court Act 1993

39—Amendment of section 22—Appeals

40—Amendment of section 23—Reservation of question of law

These 2 clauses change references to a 'preliminary examination' to references to 'committal proceedings'.

Part 14—Transitional provision

41—Transitional provision

This clause provides that the amendments will only apply to proceedings commenced after the commencement of the measure.

Debate adjourned on motion of Mr Treloar.