South Australian Current Acts South Australian Current Acts16—Withdrawal of expiation notices
(1) The issuing
authority may withdraw an expiation notice with respect to all or any of the
alleged offences to which the notice relates if—
(a) the
authority is of the opinion that the alleged offender did not commit the
offence, or offences, or that the notice should not have been given with
respect to the offence, or offences; or
(ab) the
authority receives a nomination, statutory declaration or other document sent
to the authority by the alleged offender in accordance with a notice required
by law to accompany the expiation notice or expiation reminder notice; or
(ac) the
notice is defective; or
(ad) the
authority is of the opinion that the alleged offender is suffering from a
cognitive impairment that excuses the alleged offending; or
(b) the
authority decides that the alleged offender should be prosecuted for the
offence, or offences.
(2) An expiation
notice may be withdrawn under subsection (1) despite payment of an
expiation fee or an instalment, but in that event the amount paid must be
refunded.
(3) However, an
expiation notice cannot be withdrawn for the purposes of prosecuting the
alleged offender for an offence if—
(a) an
enforcement determination has been made under section 22 of the
Fines Enforcement and Debt Recovery Act 2017 in relation to the expiation
notice; or
(b) the
period of 60 days from the date of the notice has expired.
(5) If an expiation
notice is withdrawn under subsection (1), a prosecution for an offence to
which the notice related may be commenced, but the fact that the defendant
paid an expiation fee or entered into arrangement under section 20 of the
Fines Enforcement and Debt Recovery Act 2017 is not admissible in those
proceedings as evidence against the defendant.
(6) Subject to
subsection (7), the issuing authority must withdraw an expiation notice
if it becomes apparent that the alleged offender did not receive the notice
until after the expiation period, or has never received it, as a result of
error on the part of the authority or failure of the postal system or failure
in the transmission of an email.
(7) An expiation
notice cannot be withdrawn under subsection (6) if the alleged offender
has paid the expiation fee or any instalment or other amount due under the
notice.
(9) The withdrawal of
an expiation notice under this section is effected by giving written notice of
the withdrawal, personally or by post, to the person to whom the expiation
notice was given.
(10) The notice of
withdrawal must specify the reason for withdrawal.
(11) If an expiation
notice is withdrawn under this section and the notice of withdrawal does not
specify that the notice is withdrawn for the purposes of prosecuting the
alleged offender—
(a) the
issuing authority must, if an enforcement determination has been made under
section 22 of the Fines Enforcement and Debt Recovery Act 2017 ,
inform the Chief Recovery Officer of the withdrawal of the notice; and
(b) any
aggregation determination under section 9 of the Fines Enforcement and
Debt Recovery Act 2017 in relation to the notice will be taken to have
been revoked; and
(ba) any
enforcement determination made under the Fines Enforcement and Debt Recovery
Act 2017 in respect of the notice will be taken to have been revoked (and any
subsequent enforcement action is discontinued or rescinded); and
(c) the
issuing authority cannot prosecute the alleged offender for an alleged offence
to which the withdrawal related unless the alleged offender has been given a
fresh expiation notice and allowed the opportunity to expiate the offence.
(11a) If an expiation
notice is withdrawn—
(a)
after an arrangement has been entered into under section 20 of the
Fines Enforcement and Debt Recovery Act 2017 in relation to the
notice— section 20(21) of that Act is taken never to have applied
in relation to that arrangement; or
(b)
after an enforcement determination has been made under section 22 of the
Fines Enforcement and Debt Recovery Act 2017 in relation to the
notice—section 22(4) of that Act is taken never to have applied in
relation to that determination.
(12) If an expiation
notice for an offence against section 79B of the Road Traffic Act 1961 is
withdrawn and the notice of withdrawal specifies that the notice is withdrawn
under subsection (1)(ab), the period within which—
(a) a
fresh expiation notice may be given to the alleged offender in respect of the
offence; or
(b) an
expiation notice may be given in respect of the prescribed offence (within the
meaning of that section) that gave rise to the offence,
is extended to 1 year from the date of commission of the alleged offence.
(13) If an expiation
notice is withdrawn and the notice of withdrawal specifies that the notice is
withdrawn under subsection (6), the period within which a fresh expiation
notice may be given to the alleged offender in respect of the offence or
offences to which the withdrawal related is extended to 1 year from the date
of commission of the alleged offence or offences.
(14) In this
section—
"cognitive impairment" includes the following:
(a) a
developmental disability (including, for example, an intellectual disability,
Down syndrome, cerebral palsy or an autistic spectrum disorder);
(b) an
acquired disability as a result of illness or injury (including, for example,
dementia, a traumatic brain injury or a neurological disorder);
(c) a
mental illness.