Criminal Procedure (Miscellaneous) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:01): I move:

That this bill be now read a second time.

This bill seeks to remedy a number of unintended consequences of major indictable reforms introduced by the former government in the Summary Procedure (Indictable Offences) Amendment Act 2017.The act became operative on 5 March 2018. Some issues have been highlighted by the judiciary, parliamentary counsel and Director of Public Prosecutions, who have raised concerns with some aspects of the act and its ability to achieve its stated objectives. The government has listened to the concerns and the introduction of the bill is the government's response to them. The changes in the bill will:

reinstate the unintended repeal of a provision relating to the procedure for pleading guilty in writing introduced by the Summary Procedure (Service) Amendment Act 2017;

rectify the unintentional exposure parties have been facing to costs orders in an historically 'no-costs' jurisdiction; and

remove the unintentional reinstatement of the effect of repealed provisions relating to the 'discreditable conduct notices' via the new 'case statement' provisions.

A further amendment addresses a practical difficulty with the requirement to have a defendant sign a case statement in the presence of their legal representative. This is a practical measure and has been supported by the profession. The bill addresses and remedies each of the above issues.

I now turn to detail the aspects of the bill and their origins. The Service Amendment Act commenced on 4 March 2018. It included an amendment that repeals and substitutes a new section 62B dealing with the powers of magistrates to take certain action on a written plea of guilty. The Indictable Offences Amendment Act commenced the following day. It included amendments that were intended to section 62B(5) that pre-dated the introduction of the Service Amendment Act.

The provisions appeared in both acts due to there being two separate bills purporting to amend the Summary Procedure Act 1921 progressing through the parliament at the same time, with uncertainty as to commencement dates of each. As the Indictable Offences Amendment Act commenced after the Service Amendment Act, the correct section 62B(5) contained in the Service Amendment Act was inadvertently further amended the day after it commenced by the commencement of the Indictable Offences Amendment Act.

The bill reinstates the version of section 62B(5) that was intended to be the final version as provided for in the Service Amendment Act. It reinserts a provision clarifying that a defendant who has elected to enter a written guilty plea can withdraw that plea at any time prior to the hearing and the Magistrates Court may permit a withdrawal of the plea on such terms as may be just. At the moment, there is no provision allowing for this. This is a minor clause, which rectifies an issue that arose from the timing of passage of two related bills.

The next aspect of the bill addresses the issue of costs and those who are exposed to costs. Another unintended consequence introduced by the Indictable Offences Amendment Act has resulted in exposing parties to costs orders in what has historically been a no-costs jurisdiction. Prior to the amendments, parties were not entitled to costs in relation to the prosecution of major indictable matters, except in very limited circumstances. In the lower court, this was made clear by application of section 189B of the Summary Procedure Act, which provided:

Despite any other provision of this Part, costs will not be awarded against a party to a preliminary examination of an indictable offence unless the Court is satisfied that the party has unreasonably obstructed the proceedings.

The provision was amended to remove the reference to 'preliminary examination' and replace it with the updated terminology of 'committal proceedings'. The amendment overlooked the new 'pre-committal' phase, which has now been included in the Criminal Procedure Act. There was no intention to change the scope of operation of section 189B of the Summary Procedure Act; rather, it was amended purely to update terminology.

By amending the current reference to 'committal proceedings' to 'proceedings for an indictable offence', the bill reinstates the long-held position that major indictable matters are not subject to costs. The transitional provision ensures this is the case for all matters that may have been impacted by the unintended change since commencement of the Indictable Offences Amendment Act on 5 March 2018.

I will now move to parts of the bill dealing with discreditable conduct provisions in case statements. The Indictable Offences Amendment Act introduced case statements into the Criminal Procedure Act. Section 123(2)(f) of the Criminal Procedure Act requires the prosecution case statement to set out:

whether the prosecution intends to lead discreditable conduct evidence (within the meaning of section 34P of the Evidence Act 1929) and, if so, details of that evidence;

Prior to the commencement of the Criminal Procedure Act, section 34P of the Evidence Act 1929 governed the requirement to give notice when discreditable conduct evidence was proposed to be led. The Evidence Act was specifically amended in 2013 to ensure that the notice is only required to be given when the discreditable conduct was being sought to be led for a propensity/similar fact purpose.

The original requirement to give notice without reference to purpose had imposed an impractical burden on the Office of the Director of Public Prosecutions, because the concept of discreditable conduct captures a vast amount of evidence commonly used in court for purposes other than for a propensity/similar fact purpose. The 2013 amendment also brought the notice requirement into line with a similar requirement in Uniform Evidence Act states.

It is arguable that the way that section 123(2)(f) has been phrased has the effect of unintentionally reinstating the requirements contained in section 34P that existed prior to the 2013 amendments. This would recreate an onerous and impractical burden on the Office of the DPP which was not intended. The bill remedies this.

Finally, the bill deals with the practical aspects of signing defence case statements. Section 123(5) of the Criminal Procedure Act requires the defence case statement to be signed either by the defendant personally or by a legal representative representing them in the presence of the defendant. Representatives of the defence profession have raised concerns about the practicality of complying with this requirement.

There are concerns that this will often not be possible, particularly where defendants are remanded in custody in a regional prison. This may impact on the ability of some defendants and legal practitioners to comply with the required time frames for filing a defence case statement on time. The bill removes the requirement that the case statement must be signed in the presence of the defendant in situations where the legal practitioner is signing on their behalf. It will remain incumbent on defence practitioners to ensure they have appropriate instructions before filing a case statement.

For the most part, this bill seeks to remedy unintended impacts arising out of the Indictable Offences Amendment Act. The amendment to better facilitate defence case statements will assist defendants to comply with their case statement obligations, which in turn will positively impact on the efficiency of the progress of the matter.

This, in turn, may positively impact on victims of crime by removing a possible contributor to delays. South Australians deserve an effective and timely justice system, which is a priority for this government. I commend the bill to members. I now seek leave to table a detailed explanation of the clauses without my reading them.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Procedure Act 1921

3—Amendment of section 62B—Powers of Magistrates Court on written plea of guilty

This clause re-enacts section 62B(5) as it was enacted by section 10 of the Summary Procedure (Service) Amendment Act 2017. Section 62B(5) provides that a written plea of guilty may be withdrawn on certain terms as may be just, and that an application for withdrawal is not otherwise prejudiced by the operation of section 62B.

4—Amendment of section 123—Case statements

This clause amends section 123 to specify the type of discreditable conduct evidence that must be included in a prosecution case statement. This clause also amends section 123 to provide that a defence case statement, if signed by a legal practitioner representing the defendant, need not be signed in the presence of the defendant.

5—Amendment of section 189B—Costs in pre-committal and committal proceedings

This clause amends section 189B to explicitly provide that the section applies to pre-committal and committal proceedings for an indictable offence.

Schedule 1—Transitional provision

1—Application of amendment

This clause provides for the application of the amendment to section 189B.

Debate adjourned on motion of Hon. E.S. Bourke.