Title: Statutes Amendment (Appeals) Bill 2012
Author: Office of Parliamentary Counsel
Category: parliamentary.copy
Document comments: ha104A

House of Assembly—No 104A
As reported with amendments, report agreed to and passed remaining stages, 7 February 2013

Statutes Amendment (Appeals) Bill 2012

Statutes Amendment (Appeals) Bill 2012
Part 1—Preliminary

Statutes Amendment (Appeals) Bill 2012
Preliminary—Part 1

Statutes Amendment (Appeals) Bill 2012
Part 2—Amendment of Criminal Law Consolidation Act 1935

Statutes Amendment (Appeals) Bill 2012
Amendment of Criminal Law Consolidation Act 1935—Part 2

Statutes Amendment (Appeals) Bill 2012
Part 3—Amendment of Magistrates Court Act 1991

Statutes Amendment (Appeals) Bill 2012
Amendment of Magistrates Court Act 1991—Part 3

Statutes Amendment (Appeals) Bill 2012
Part 4—Amendment of Supreme Court Act 1935

Statutes Amendment (Appeals) Bill 2012
Amendment of Supreme Court Act 1935—Part 4

Statutes Amendment (Appeals) Bill 2012
Schedule 1—Transitional provision

Statutes Amendment (Appeals) Bill 2012
Transitional provision—Schedule 1

South Australia
Statutes Amendment (Appeals) Bill 2012
A Bill For
An Act to amend the Criminal Law Consolidation Act 1935; the Magistrates Court Act 1991; and the Supreme Court Act 1935.

Contents
Part 1—Preliminary
1	Short title
2	Commencement
3	Amendment provisions
Part 2—Amendment of Criminal Law Consolidation Act 1935
4	Amendment of section 352—Right of appeal in criminal cases
5	Amendment of section 353—Determination of appeals in ordinary cases
6	Insertion of section 353A
353A	Second or subsequent appeals
7	Amendment of section 357—Appeal to Full Court
8	Repeal of section 367
9	Amendment of section 369—References by Attorney‑General
Part 3—Amendment of Magistrates Court Act 1991
10	Amendment of section 42—Appeals
11	Insertion of section 43A
43A	Second or subsequent appeals
Part 4—Amendment of Supreme Court Act 1935
12	Amendment of section 5—Interpretation
13	Amendment of section 48—Jurisdiction of Full Court, single judge and master
Schedule 1—Transitional provision

The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Statutes Amendment (Appeals) Act 2012.
2—Commencement
This Act will come into operation on a day to be fixed by proclamation.
3—Amendment provisions
In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Criminal Law Consolidation Act 1935
4—Amendment of section 352—Right of appeal in criminal cases
	(1)	Section 352(1)(a)(iii)—before "the convicted person" first occurring insert:
subject to subsection (2)—
	(2)	Section 352—after subsection (1) insert:
	(2)	If a convicted person is granted permission to appeal under subsection (1)(a)(iii), the Director of Public Prosecutions may appeal under that subparagraph without the need to obtain the permission of the Full Court.
5—Amendment of section 353—Determination of appeals in ordinary cases
Section 353(3a)(a)—delete paragraph (a) and substitute:
	(aa)	it may revoke any permission to appeal granted by the court of trial;
	(a)	it may confirm, vary or reverse the decision subject to the appeal;
6—Insertion of section 353A
After section 353 insert:
353A—Second or subsequent appeals
	(1)	The Full Court may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
	(2)	A convicted person may only appeal under this section with the permission of the Full Court.
	(3)	The Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.
	(4)	If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
	(5)	If the Full Court orders a new trial under subsection (4), the Court—
	(a)	may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but
	(b)	may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.
	(6)	For the purposes of subsection (1), evidence relating to an offence is—
	(a)	fresh if—
	(i)	it was not adduced at the trial of the offence; and
	(ii)	it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
	(b)	compelling if—
	(i)	it is reliable; and
	(ii)	it is substantial; and
	(iii)	it is highly probative in the context of the issues in dispute at the trial of the offence.
	(7)	Evidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction.
7—Amendment of section 357—Appeal to Full Court
Section 357—after subsection (2) insert:
	(3)	The Chief Justice may determine that the Full Court is to be constituted of only 2 judges for the purposes of any appeal to the Full Court under this Act.
8—Repeal of section 367
Section 367—delete the section
9—Amendment of section 369—References by Attorney‑General
Section 369—after its present contents (now to be designated as subsection (1)) insert:
	(2)	If a full pardon is granted to a convicted person in the exercise of Her Majesty's mercy in relation to a conviction of an offence, the Attorney‑General may refer the matter to the Full Court and the Full Court may, if it thinks fit, quash the conviction.

Part 3—Amendment of Magistrates Court Act 1991
10—Amendment of section 42—Appeals
	(1)	Section 42(2)(ab)—after "person of" insert:
an offence that is, or offences that include,
	(2)	Section 42—after subsection (2) insert:
	(2a)	The Chief Justice may determine that the Full Court is to be constituted of only 2 judges for the purposes of hearing and determining an appeal to the Full Court of a kind referred to in subsection (2)(ab).
11—Insertion of section 43A
After section 43 insert:
43A—Second or subsequent appeals
	(1)	A Court to which a particular appeal against conviction lies under section 42 (the appeal court) may hear a second or subsequent appeal against conviction if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
	(2)	A convicted person may only appeal under this section with the permission of the appeal court.
	(3)	The appeal court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.
	(4)	If an appeal against conviction is allowed under this section, the court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial by the Magistrates Court.
	(5)	If the appeal court orders a new trial under subsection (4), the court—
	(a)	may make such other orders as the court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but
	(b)	may not make any order directing the Magistrates Court to convict or sentence the person.
	(6)	For the purposes of subsection (1), evidence relating to an offence is—
	(a)	fresh if—
	(i)	it was not adduced at the trial of the offence; and
	(ii)	it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
	(b)	compelling if—
	(i)	it is reliable; and
	(ii)	it is substantial; and
	(iii)	it is highly probative in the context of the issues in dispute at the trial of the offence.
	(7)	Evidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction.

Part 4—Amendment of Supreme Court Act 1935
12—Amendment of section 5—Interpretation
Section 5(1), definition of Full Court, (b)—delete paragraph (b) and substitute:
	(b)	not less than 2 judges if—
	(i)	3 judges are not available to sit in the Full Court; or
	(ii)	the Chief Justice has made a determination under section 357(3) of the Criminal Law Consolidation Act 1935 or section 42(2a) of the Magistrates Court Act 1991;
13—Amendment of section 48—Jurisdiction of Full Court, single judge and master
Section 48—after subsection (2) insert:
	(3)	Subject to subsection (4) and to the rules of court, where any Act provides that 1 or more of the following powers relating to appeals are exercisable by the Full Court, the power may, instead, be exercised by any judge of the Supreme Court in the same manner as the Full Court and subject to the same provisions:
	(a)	the power to give permission to appeal;
	(b)	the power to extend the time within which notice of appeal, or of an application for permission to appeal, may be given;
	(c)	the power to allow the appellant to be present at any proceedings in cases where he or she is not entitled to be present without permission;
	(d)	the power to admit an appellant to bail and to direct that time spent in custody by an appellant pending determination of an appeal be counted as part of a term of imprisonment.
	(4)	If a judge refuses an application by an appellant to exercise any power of a kind referred to in subsection (3) in his or her favour, the appellant is entitled to have the application determined by the Full Court.

Schedule 1—Transitional provision
The amendments effected by this Act apply in relation to appeals instituted after the commencement of this Act, regardless of whether the offence to which the appeal relates was committed, or allegedly committed, before or after the commencement of this Act.

HA GP 709-C OPC 110