South Australian Numbered Acts

STATUTES AMENDMENT (CRIMINAL PROCEDURE) ACT 2005 (NO 74 OF 2005) - SECT 4

4—Insertion of sections 285BA, 285BB and 285BC

After section 285B insert:

285BA—Power to serve notice to admit facts

        (1)         A court before which a defendant is to be tried on information may, on application by the Director of Public Prosecutions, authorise the Director of Public Prosecutions to serve on the defence a notice to admit specified facts.

        (2)         The court may, in granting such an authorisation, fix a time within which the notice is to be complied with.

        (3)         The notice must contain a warning, in the prescribed form, to the effect that, if the defendant is convicted, the court is required to take an unreasonable failure to make an admission in response to the notice into account in fixing sentence.

        (4)         This section does not abrogate the privilege against self-incrimination and a refusal to make an admission on the ground that the admission would tend to incriminate the defendant of an offence is not to be made the subject of comment to a jury.

        (5)         An order under this section may only be made at a directions hearing at which the defendant is represented by a legal practitioner unless the court is satisfied that—

            (a)         the defendant has voluntarily chosen to be unrepresented; or

            (b)         the defendant is unrepresented for reasons attributable to the defendant's own fault.

        (6)         If a defendant unreasonably fails to make an admission in response to a notice under this section, and the defendant is convicted, the court should take the failure into account in fixing sentence.

        (7)         Without limiting subsection (6), a defendant unreasonably fails to make an admission if the defendant—

            (a)         claims privilege against self-incrimination as a reason for not making the admission; and

            (b)         thus puts the prosecution to proof of facts that are not seriously contested at the trial.

285BB—Power to require notice of intention to adduce certain kinds of evidence

        (1)         A court before which a defendant is to be tried on information may, on application by the prosecutor, require the defence to give the Director of Public Prosecutions written notice of an intention to introduce evidence of any of the following kinds:

            (a)         evidence tending to establish that the defendant was mentally incompetent to commit the alleged offence or is mentally unfit to stand trial;

            (b)         evidence tending to establish that the defendant acted for a defensive purpose;

            (c)         evidence of provocation;

            (d)         evidence of automatism;

            (e)         evidence tending to establish that the circumstances of the alleged offence occurred by accident;

            (f)         evidence of necessity or duress;

            (g)         evidence tending to establish a claim of right;

            (h)         evidence of intoxication.

        (2)         Before making an order under this section, the court must satisfy itself that—

            (a)         the prosecution has provided the defence with an outline of the prosecution case, so far as it has been developed on the basis of material currently available to the prosecution; and

            (b)         the prosecution has no existing, but unfulfilled, obligations of disclosure to the defence.

        (3)         Non-compliance with a requirement under subsection (1) does not render evidence inadmissible but the prosecutor or the judge (or both) may comment on the non-compliance to the jury.

        (4)         A court before which a defendant is to be tried on information may require the defence to notify the Director of Public Prosecutions in writing whether it consents to dispensing with the calling of prosecution witnesses proposed to be called to establish the admissibility of specified intended evidence of any of the following kinds:

            (a)         documentary, audio, visual, or audiovisual evidence of surveillance or interview;

            (b)         other documentary, audio, visual or audiovisual evidence;

            (c)         exhibits.

        (5)         If the defence fails to comply with a notice under subsection (4), the defendant's consent to the tender of the relevant evidence for purposes specified in the notice will be conclusively presumed.

285BC—Expert evidence

        (1)         If a defendant is to be tried or sentenced for an indictable offence, and expert evidence is to be introduced for the defence, written notice of intention to introduce the evidence must be given to the Director of Public Prosecutions—

            (a)         in the case of trial, on or before the date of the first directions hearing, and, in the case of sentence, at least 28 days before the date appointed for submissions on sentence; or

            (b)         if the evidence does not become available to the defence until later—as soon as practicable after it becomes available to the defence.

        (2)         The notice—

            (a)         must set out the name and qualifications of the expert; and

            (b)         must describe the general nature of the evidence and what it tends to establish.

        (3)         The court may, on application by a defendant, exempt the defendant from the obligation imposed by this section.

        (4)         If the defence proposes to introduce expert psychiatric evidence or other expert medical evidence relevant to the defendant's mental state or medical condition at the time of an alleged offence, the court may, on application by the prosecutor, require the defendant to submit, at the prosecutor's expense, to an examination by an independent expert approved by the court.

        (5)         If a defendant fails to comply with a requirement of or under this section—

            (a)         the evidence will not be admitted without the court's permission (but the court cannot allow the admission of evidence if the defendant fails to submit to an examination by an independent expert under subsection (4)); and

            (b)         in the case of a trial by jury—the prosecutor or the judge (or both) may comment on the defendant's non-compliance to the jury.

        (6)         If the Director of Public Prosecutions receives notice under this section of an intention to introduce expert evidence less than 28 days before the day appointed for the commencement of the trial or submissions on sentence, the court may, on application by the prosecutor, adjourn the case to allow the prosecution a reasonable opportunity to obtain expert advice on the proposed evidence and, if a jury has been empanelled and the adjournment would, in the court's opinion, adversely affect the course of the trial, the court may discharge the jury and order that the trial be re-commenced.

        (7)         The court should grant an application for an adjournment under subsection (6) unless there are good reasons to the contrary.

        (8)         If it appears to the judge, from evidence or submissions before the court, that a legal practitioner has advised the defendant not to comply, or has expressly agreed to the defendant's non-compliance, with a requirement of this section, the judge may report the matter to the appropriate professional disciplinary authority.

        (9)         Before the judge makes a report under subsection (8), the judge will invite the legal practitioner to make submissions to the court showing why the matter should not be reported.