Summary Procedure (Abolition of Complaints) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (17:58): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Summary Procedure (Abolition of Complaints) Amendment Bill 2016 will amend the Summary Procedure Act 1921 (the Act) to provide for a common information format to be used to initiate charges notwithstanding the seriousness of the alleged offence, rather than separate complaint forms for summary offences and information forms for indictable offences. The Bill will also amend the Act to require affidavit evidence at the preliminary examination of an indictable offence instead of a written statement of evidence verified by declaration. The Bill contains other consequential and transitional provisions.

The intention of the Bill is to achieve efficiencies in criminal justice procedure by avoiding the need to refile charges and evidence in different documentary formats when charges are upgraded or downgraded.

Criminal offences in this State are classified depending on their seriousness as either:

summary offences, which are generally punishable by fines or relatively short periods of imprisonment; or

major or minor indictable offences.

Section 49 of the Act requires a charge of a summary offence to be commenced in the Magistrates Court by the making and filing of a complaint. The practice of the Magistrates Court is that charges of summary offences are generally supported by evidence in affidavit form.

A person is charged with an indictable offence by the laying and filing of an information in the Magistrates Court under section 101 of the Act. The Magistrates Court will conduct a preliminary examination of the charges to determine whether the evidence is sufficient for the person charged with the indictable offence to be committed for trial in the District or Supreme Court (although some minor indictable offences can be tried in the Magistrates Court if the defendant does not elect to be tried in a superior Court).

In relation to the preliminary examination, section 104 of the Act requires the prosecutor to file the prosecution's witness statements in the Court in the form of written statements verified by declaration. Section 104(6) creates an offence for the making of a false or misleading statement filed in Court. The maximum penalty is 2 years imprisonment.

The preparation and filing of complaint and information forms and their accompanying affidavits and declarations is primarily the responsibility of the South Australia Police (SAPOL), in conjunction with advice received from staff of the Office of the Director of Public Prosecutions (ODPP). During the course of criminal proceedings, the offences as initially charged may be changed from indictable to summary or from summary to indictable. This can occur as a result of plea negotiations and discovery of new evidence or advice from ODPP staff as to the chances of conviction. Such a change in charges currently requires SAPOL to prepare and re-file charges and supporting evidence on a different Court format, i.e. a complaint form instead of an information form or vice versa. It also requires victims and witnesses to restate their evidence in a different format, i.e. an affidavit instead of a declaration or vice versa. The need for this double-handling creates an additional workload for SAPOL prosecution staff, unnecessary expense (including in printing costs) and delays in the criminal justice system.

The draft Bill would change all instances in the Act of the words 'complaint', 'complainant' and the 'making' of a complaint to, respectively, an 'information', 'informant' and the 'laying' of an information. Because the 'complaint' language is used in many dozens of other Acts in the State, and so as not to directly amend those dozens of Acts, an amendment is also proposed to s44 of the Acts Interpretation Act 1915 so that the words 'complaint' and 'complainant' and the 'making' of a complaint in other legislation are to be taken to reflect the changes to language made to the Act by this Bill. Together, these amendments will avoid SAPOL having to refile charges in different formats when charges are upgraded or downgraded.

The forms currently prescribed by the Magistrates Court Rules for complaints and informations are virtually identical. They contain the names and addresses of the defendant and of the complainant or informant, together with information as to the alleged offence charged against the defendant. The two forms can be readily consolidated into a common information form.

The use of a common information format avoids the additional workload, expense and delay that results from changing charges from a summary offence to an indictable offence or vice versa. The proposal primarily benefits SAPOL but the reduction of delay and double-handling also benefits victims and witnesses and the criminal justice sector broadly.

The intention of the amendments is only to avoid the inefficiencies arising from the prosecutor having to file different forms when offences are upgraded or downgraded.

The draft Bill would also amend section 104(3) of the Act so that a statement filed in the Court in relation to a preliminary examination of an indictable offence must, as with summary offences, be in the form of an affidavit. This common evidentiary format will avoid the need for witnesses and victims to state their evidence in a different documentary format should charges be upgraded from summary to indictable or vice versa. A transitional provision will be inserted in the Act to ensure that SAPOL can still file in Court statements verified by declaration that were signed before the amendments come into operation. Some police investigations are protracted and declarations may have been signed a considerable time prior to the commencement of the amendments. A transitional provision will mean that it will not be necessary to require victims and witnesses to be contacted again to swear affidavits in place of those declarations and reflects the policy intent of the Bill that victims and witnesses should not be put to unnecessary inconvenience and stress.

An affidavit is the written equivalent of evidence given orally under oath in the court room. Affidavits can only be sworn before authorised persons, such as solicitors and Justices of the Peace. Under the Evidence (Affidavits) Act 1928, an affidavit can also be sworn before a member of the police force proclaimed under Part 5 of the Oaths Act 1936 (a 'Proclaimed Police Officer'). SAPOL proposes to require all police officers to undertake relevant training and to seek their appointment by the Governor as Proclaimed Police Officers under the Oaths  Act 1936. This will eventually enable all police officers to administer oaths and ought to improve the quality of sworn affidavits filed by SAPOL.

It is likely that there will need to be minor business process changes in Government and the community to implement the affidavit changes, particularly identifying persons who are authorised to administer oaths. This should not pose any significant difficulty given that solicitors, Justices of the Peace and Proclaimed Police Officers, amongst others, can administer an oath. Those persons who must swear an affidavit interstate or overseas should have ample recourse to persons before whom such affidavits can be sworn (as permitted by section 66 of the Evidence Act 1929).

Using affidavits rather than declarations at preliminary examinations also provides a greater deterrent against the giving of false evidence. Perjury in an affidavit attracts a larger penalty than the penalty under section 104(6) of the Act for false evidence given in a declaration. The giving of false evidence in an affidavit sworn before a Proclaimed Police Officer and other authorised persons would constitute the criminal offence of perjury, which is punishable by imprisonment of up to seven years. Section 104(6) of the Act would be repealed by the Bill to ensure that there is no doubt that a false statement in an affidavit would constitute the offence of perjury. Also, an offence under section 104(6) occurs only when the declaration is filed in Court. SAPOL has suggested that this had led to some witnesses providing false alibi evidence in a declaration which, if discovered prior to filing in the Court, could only be prosecuted as an attempt to pervert the course of justice or other similar offences which are generally difficult to prove.

The proposal for a common information form is consistent with the practice in New South Wales, Queensland and Western Australia. Also, most interstate jurisdictions do not differentiate between sworn and unsworn written evidence for different levels of offending and require only a single written format for evidence.

The benefits of the amendments apply whether the person filing the charge forms is a police officer, private citizen or a representative of Government or non-Government agencies that initiate criminal prosecutions.

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 section 4—Interpretation

This clause makes a consequential amendment to section 4 of the principal Act to delete the definition of 'complaint', a term no longer used in the Act.

5—Amendment of section 5—Classification of offences

This clause makes consequential amendments to section 5 of the principal Act.

6—Amendment of section 20—Form of warrant

This clause makes consequential amendments to section 20 of the principal Act.

7—Amendment of section 22—Form of summons

This clause makes consequential amendments to section 22 of the principal Act.

8—Amendment of section 22A—Description of offence

This clause makes a consequential amendment to section 22A of the principal Act.

9—Amendment of section 27—Service

This clause makes a consequential amendment to section 27 of the principal Act.

10—Amendment of section 27A—Service of summons by post

This clause makes a consequential amendment to section 27A of the principal Act.

11—Amendment of section 27B—Hearing on a written plea of guilty

This clause makes a consequential amendment to section 27B of the principal Act.

12—Amendment of section 27C—Hearing where defendant fails to appear

This clause makes consequential amendments to section 27C of the principal Act.

13—Amendment of heading to Part 4 Division 2

This clause makes a consequential amendment to the heading to Part 4 Division 2 of the principal Act.

14—Amendment of section 49—Information

This clause amends section 49 of the principal to set out how an information can be laid.

This is the key clause in the measure, as it amends the provisions that require summary offences to be charged on complaint. Summary offences (and indictable offences) are, following commencement of the measure, all to be charged on information.

15—Amendment of section 51—Joinder and separation of charges

This clause makes consequential amendments to section 51 of the principal Act.

16—Amendment of section 54—Allegations and descriptions in informations and proceedings

This clause makes consequential amendments to section 54 of the principal Act.

17—Amendment of section 56—Exceptions or exemptions need not be specified or disproved by informant

This clause makes consequential amendments to section 56 of the principal Act.

18—Amendment of section 57—Issue of summons

This clause makes consequential amendments to section 57 of the principal Act.

19—Amendment of section 57A—Procedure enabling written plea of guilty

This clause makes consequential amendments to section 57Aof the principal Act.

20—Amendment of section 58—Issue of warrant

This clause makes a consequential amendment to section 58 of the principal Act.

21—Amendment of section 60—Forms of custody etc

This clause makes a consequential amendment to section 60 of the principal Act.

22—Amendment of section 62—Proceedings on non-appearance of defendant

This clause makes a consequential amendment to section 62 of the principal Act.

23—Amendment of section 62A—Power to proceed in absence of defendant

This clause makes consequential amendments to section 62A of the principal Act.

24—Amendment of section 62B—Powers of court on written plea of guilty

This clause makes consequential amendments to section 62B of the principal Act.

25—Amendment of section 62BA—Proceedings where defendant neither appears nor returns written plea of guilty

This clause makes consequential amendments to section 62BA of the principal Act.

26—Amendment of section 62C—Proceedings in absence of defendant

This clause makes a consequential amendment to section 62C of the principal Act.

27—Amendment of section 62D—Proof of previous convictions

This clause makes consequential amendments to section 62D of the principal Act.

28—Amendment of section 63—Non-appearance of informant

This clause makes consequential amendments to section 63 of the principal Act.

29—Amendment of section 64—If both parties appear, court to hear and determine the case

This clause makes a consequential amendment to section 64 of the principal Act.

30—Amendment of section 67—When defendant pleads guilty, court to convict or make an order

This clause makes a consequential amendment to section 67 of the principal Act.

31—Amendment of section 68—Procedure on plea of not guilty

This clause makes consequential amendments to section 68 of the principal Act.

32—Amendment of section 69—After hearing the parties court to convict or dismiss

This clause makes a consequential amendment to section 69 of the principal Act.

33—Amendment of section 69A—Examination of defendant

This clause makes a consequential amendment to section 69A of the principal Act.

34—Amendment of section 70A—Convictions where charges joined in information

This clause makes a consequential amendment to section 70A of the principal Act.

35—Amendment of section 70B—Conviction for attempt where full offence charged

This clause makes a consequential amendment to section 70B of the principal Act.

36—Amendment of section 71—Order and certificate of dismissal

This clause makes a consequential amendment to section 71 of the principal Act.

37—Amendment of section 78—Non-association and place-restriction orders

This clause makes consequential amendments to section 78 of the principal Act.

38—Amendment of section 80—Issue of non-association or place restriction order in absence of defendant

This clause makes consequential amendments to section 80 of the principal Act.

39—Amendment of section 99AA—Paedophile restraining orders

This clause makes consequential amendments to section 99AA of the principal Act.

40—Amendment of section 99AAC—Child protection restraining orders

This clause makes consequential amendments to section 99AAC of the principal Act.

41—Amendment of section 99C—Issue of restraining order in absence of defendant

This clause makes consequential amendments to section 99C of the principal Act.

42—Amendment of section 99G—Notification of making etc of restraining orders

This clause makes a consequential amendment to section 99G of the principal Act.

43—Amendment of section 99J—Informations or applications by or on behalf of child

This clause makes consequential amendments to section 99J of the principal Act.

44—Amendment of section 102—Joinder and separation of charges

This clause makes a consequential amendment to section 102 of the principal Act.

45—Amendment of section 104—Preliminary examination of charges of indictable offences

This clause makes amends section 104 of the principal Act to require affidavits (rather than declarations) to be filed in court.

46—Amendment of section 107—Evaluation of evidence at preliminary examination

This clause makes a consequential amendment to section 107 of the principal Act.

47—Amendment of section 181—Charges

This clause makes a consequential amendment to section 181 of the principal Act.

48—Amendment of section 187A—Proof of convictions or orders

This clause makes a consequential amendment to section 187A of the principal Act.

49—Amendment of section 189C—Costs against informant in proceedings for restraining order

This clause makes consequential amendments to section 189C of the principal Act.

Schedule 1—Related amendments and transitional provisions

Part 1—Amendment of Acts Interpretation Act 1915

1—Amendment of section 44—Interpretation of references to summary proceedings, complaints etc

This clause amends section 44 of the Acts Interpretation Act 1915 to make amendments that are consequential to this measure, and to make provision saving references in other Acts and regulations to 'complaints' by providing that such references will be taken to be references to 'informations'.

Part 2—Transitional provision

2—Certain statements to have effect as affidavits

This clause makes a transitional provision allowing certain declarations made before the commencement of the clause to continue to be filed in court in lieu of the requirement for an affidavit.

Debate adjourned on motion of Hon. T.J. Stephens.

At 17:59 the council adjourned until Wednesday 6 July 2016 at 14:15.