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Supreme Court judge slams police powers

Wednesday, 23 January 2013
Author: Kevin Naughton, Indaily

A SUPREME Court judge has slammed new laws that shift power and responsibility for criminal justice from the judiciary to the police.

"It is another example of a startling trend of abnegation (denial) of the power and responsibility of the independent judiciary to the police in this state," Justice David Peek said in a decision published this week.

A leading criminal law expert told Indaily yesterday the judge's comments were "palpable and seem to be almost a call to arms to someone to challenge the validity of the provision".

Attorney-General John Rau said late yesterday he would seek advice on the judge's comments.

Justice Peek's comments came in his decision to dismiss an appeal by SA Police seeking to increase the amount of prosecution costs they can recover from a defendant in cases including a straight guilty plea or trivial matter.

The appeal tested the interpretation of amendments to the Summary Procedure Act that were passed by parliament in 2011 to give effect to State Budget measures aimed at raising $13 million.

Under the new laws anyone found guilty in the Magistrates Court, including those who plead guilty, would have to pay a $100 "court enforcement fee" - even in cases where the magistrate had decided that no conviction should be recorded.

Justice Peek said the fee was being levied at the request of, and discretion of, the police prosecutor, leaving no room for a magistrate to waive the fee in cases of a trivial prosecution.

"I therefore find it disturbing that magistrates should be placed in a situation where they are beholden, or might appear to be beholden, to a police prosecutor to 'agree' that the court not make an order for the imposition of the $100 court enforcement fee in a case where the magistrate is firmly of the view that it would be unjust for the defendant to have to pay it.

"Is it not ironic that a magistrate, who is rightly critical of the police in a particular case and, if possessed of the traditional wide discretion as to costs, would not make an order for the defendant to pay the police $100 (and might even order the police to pay the defendant's costs), in South Australia is supposed to seek permission from the police so as not to impose upon the defendant what amounts to a fine of $100 in the circumstances?

"This new 'police discretion' is enacted to the direct detriment of the courts' traditional power and responsibility to administer criminal justice.

"It is another example of a startling trend of abnegation (denial) of the power and responsibility of the independent judiciary to the police in this state."

To view the full article visit: http://www.indaily.com.au/?iid=73143&sr=0#folio=1

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