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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-09-15 Daily Xml
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CRIMINAL LAW (SENTENCING) (NO CONVICTION ON ELECTION TO BE PROSECUTED) AMENDMENT BILL

Introduction and First Reading

The Hon. R.B. SUCH (Fisher) (10:33): Obtained leave and introduced a bill for an act to amend the Criminal Law (Sentencing) Act 1988. Read a first time.

Second Reading

The Hon. R.B. SUCH (Fisher) (10:33): I move:

That this bill be now read a second time.

This bill proposes to amend current legislation in South Australia to ensure that a contested expiation notice cannot result in a conviction. An individual who believes that he or she is innocent of an expiable offence and elects to be prosecuted may receive a conviction, whilst an individual who expiates the notice in full, whether they are guilty or innocent, escapes with a fine but without a conviction. This is inherently unfair.

If an individual who elects to be prosecuted for an offence is found guilty of that offence, a conviction will be recorded on the individual's police certificate and will remain there until such time as it is considered spent. This bill will ensure that a conviction is not recorded against what would otherwise be an expiable offence, which, by its very nature, is a minor offence.

As members know, I challenged an alleged speeding matter in court and I lost. As a result of that, you get not only the lawyers' fees (which in my case were over $10,000), you get court costs, you get a fine and you also get a conviction. Under our law, a traffic offence is a criminal offence, so if you are alleged to have been speeding and are found guilty in no matter what zone, or if it is a boating or parking incident involving expiation, you will get a conviction, and our law does not distinguish between the conviction. It will go on your police record and the National Police Certificate will be there.

As I indicated, that is unfair because people who pay the fine, the expiation, in effect are admitting their guilt. We know that some of those people may be innocent but pay it because they do not want the hassle. They could well have been guilty, but they end up with nothing other than the fine; if you challenge it, you end up with lawyers' costs, court costs, you get a fine anyway and a criminal conviction. I believe that is unjustified and unwarranted, and that is what this bill seeks to address.

You will still cop the lawyers' fees, the court costs and a fine if you are found guilty in contesting it but, under this proposal, you would not end up with a criminal conviction. I do not know whether members realise this, but that is the state of the law in South Australia. In a letter from the Attorney last week, or the week before, he said that it is a conviction; the law does not distinguish whether or not you got it for an expiable offence. I think what we have is unfair and unreasonable.

Someone within the Law Society argued that people may rush off to court to contest a matter. You would have to have rocks in your head if you challenged something in court without having a firm belief that you had not offended because, as I say, if you have a lawyer, you will end up with a minimum fee that could run into well over $1,000 or into many thousands. Even if you represent yourself and lose, you still incur the court costs, which are likely to be anywhere up to $1,000, and the fine as well. I do not believe that should continue.

I conclude by asking members to support this. They might think it is a minor issue; it is not. It is there and, even under our spent convictions legislation, which I helped put through the parliament, the police keep a record forever. What many people do not understand is that 'no conviction recorded' is recorded, and that surprises people who think, 'Gee, I got no conviction. There will be no record.' There is a record, and the police will tell you that, under the State Records Act, they are not allowed to remove anything from a record, so that stays with that person.

I think it is time that the law was changed. I do not think people are going to rush into court simply to contest something when they face the risk of very significant financial outlay. If you are in small business, the time alone involved in the court process (in my case, 11 half days) would cost you a fortune, so I ask members to support this in the interests of fairness and equity.

Debate adjourned on motion of Mrs Geraghty.

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