There are three types of criminal offences:
The category into which an offence falls can determine which court will deal with the matter.
A hearing or trial takes place only when a defendant pleads not guilty to the charge.
After a plea of guilty, the court deals with the defendant by doing such things as:
- imposing a fine;
- a sentence or suspended sentence of imprisonment;
- recording or not recording a conviction (with or without penalty);
- imposing a good behaviour bond;
- ordering home detention;
- ordering community service be undertaken;
- making orders for forfeiture, compensation, intervention and restraining orders, costs and other things.See further: Sentencing
Crimes which can only be heard and decided by a magistrate in the magistrates court are called summary offences. In general, these offences are less serious than indictable offences and the penalties that can be imposed are not as great. Summary offences make up the majority of the so called common offences, see common offences. A summary offence is defined by the Criminal Procedure Act 1921 (SA) s5 as:
- offences not punishable by imprisonment and having a maximum fine of less than $120 000;
- having a maximum imprisonment of two years;
- including most dishonesty offences involving $2 500 or less (even if the maximum imprisonment is more than two years), but not including robbery, or offences of violence, or an offence that is one of a series of offences of the same or a similar character involving more than $2 500 in aggregate; and
- Also not including offences of arson or causing a bushfire.
Examples of summary offences are disorderly behaviour, driving under the influence of alcohol or a drug and minor criminal damage to property. People charged with summary offences cannot be tried by juries even if they would prefer it.
There is a time limit of two years to lay a complaint for a summary offence or six months if an expiation notice may be given for the offence [Criminal Procedure Act 1921 (SA) s 52].
Indictable offences are divided into major indictable offences and minor indictable offences. Major indictable offences must be dealt with in the superior courts (District or Supreme). Minor indictable offences are dealt with in the Magistrates Court unless the defendant chooses to have the charge dealt with in a superior court. This is an important decision, and should only be taken after receiving legal advice.
If dealt with in the magistrates court, minor indictable matters are prosecuted by the police until a charge determination is made. From this time on, and if the defendant elects for trial by jury, solicitors from the State Director of Public Prosecutions (DPP) takes over the conduct of the matter at the magistrates court. The DPP has the conduct of the matter once it reaches the District or Supreme court.
Minor indictable offences are defined in s 5 of the Criminal Procedure Act 1921 (SA) as:
- offences not punishable by imprisonment and having a maximum fine exceeding $120 000;
- offences with a maximum imprisonment of five years;
- offences with a maximum imprisonment greater than five years, being one of the following:- an offence involving interference with, damage to or destruction of property where the loss resulting from commission of the offence does not exceed $30 000;- an offence involving a threat to interfere with, damage or destroy another person's property where if the threat had been carried out, the loss resulting would not have exceeded $30 000;- recklessly causing harm [see Criminal Law Consolidation Act 1935 (SA) s 24(2)];- indecent assault (where the victim is 14 years of age or older) [see Criminal Law Consolidation Act 1935 (SA) s 54];- dishonesty offences where the amount involved is $30 000 or less (but not robbery or offences of violence); and;- serious criminal trespass where the intended offence is an offence of dishonesty (not being an offence of violence) involving $30 000 or less, or an offence of interference with, damage to or destruction of property involving $30 000 or less.
Some examples of minor indictable offences are listed below, with the relevant sections of the Criminal Law Consolidation Act 1935 (SA) noted:
- Theft and receiving [s 134](where the loss resulting from commission of offence is between $2501 - $30 000 total);
- Deception [s 139 (where the loss resulting from commission of offence is between $2501 - $30 000 total);
- Serious criminal trespass — places of residence [s 170; non-residential places [s 169];
- Illegal use/ interference with a motor vehicle (subsequent offence) [s 86A];
- Aggravated assault causing harm [s 20(4)];
- Indecent assault [s 56];
- Causing harm [s 24];
- Stalking [s 19AA];
- Gross indecency [s 58]; and
- Property damage [s 85] (where the damage is less than $30 000 but more than $2501).
An indictable offence is one that guarantees the defendant the right to a trial by jury. Indictable offences are generally the more serious crimes, and penalties are generally greater than for other offences. Major indictable matters can only be dealt with after the initial pre- committal and committal proceedings, whatever the defendant is pleading, in the District or Supreme court. Some examples are murder, robbery, rape, unlawful sexual intercourse, dishonesty and damage property offences (including arson) where the amount involved exceeds $30 000. Major indictable offences are all indictable offences which are not minor indictable offences.
The most serious offences, murder, attempted murder and treason, are dealt with in the Supreme court. Other major indictable offences are dealt with in the District court.
Before a person charged with an indictable offence goes to trial, there is a committal process including a committal hearing and an answer charge hearing , at which the prosecution's evidence is presented to see if there is enough evidence upon which a conviction could be founded.
There is no time limit to lay a charge for an indictable offence.
Where a person under the age of 18 years (a minor) is charged with a criminal offence, the matter is generally dealt with by either a caution, or a conference or by the Youth court, under the Young Offenders Act 1993 (SA).
Serious criminal matters may be dealt with in adult courts. For example, when a youth is charged with murder, the matter will be referred to the Supreme Court. See The Youth Court.
The Magistrates Court Diversion Program is available to offenders with impaired intellectual or mental functioning (whether due to mental illness, intellectual disability, acquired brain injury or a neurological disorder) who have been charged with minor indictable or summary offences. To be eligible for the program there needs to be a link between the offender’s impairment and the offences with which they have been charged.
Access to this program is voluntary and before an offender is accepted into the program a Court assessment of their suitability to participate is made.
The Diversion Program takes 6 months to complete and during this time legal proceedings are adjourned.
The aims of the Magistrates Court Diversion Program are:
- to prevent further offending behaviour by providing offenders with services that address their mental health or disability needs;
- to assist the Court in the management of people with mental impairments in the Court system;
- to provide an alternative option for offenders who might otherwise plead a mental impairment defence under s 269 of the Criminal Law Consolidation Act 1935 (SA).
Whilst on the Diversion Program offenders are put in contact with community services that are appropriate to their needs and their progress is monitored. The Court itself does not provide participants of the program with treatment.
Throughout the program the Magistrate will review the offender’s progress every two months and, if necessary, will alter the existing program if there are problems with compliance. Failure to adhere to the program can result in the matter being referred back to a normal Court and a person’s removal from the Diversion Program.
At the final hearing the offender is required to appear before the Court for the Magistrate to make a determination of the matter, taking into account their performance and involvement in the program. It is open to the Magistrate to dismiss the matter or convict without penalty, depending on the circumstances of the case. Although that a person has not made progress or performed badly in the program is not relevant to the sentencing process [see Sentencing Act 2017 (SA) s 11(7)].
The Coroner has power to inquire into an unnatural death, a fire or accident that causes injury to a person or property and the circumstances of the disappearance of a person from, or within, the State [see Coroners Act 2003 (SA) s 21].
A Coroner may re-open an inquest at any time [Coroners Act 2003 (SA) s 26] but must not in the inquest make any finding, or suggestion, of criminal or civil liability, [Coroners Act 2003 (SA) s 25(3)], see: Coroner's Inquests.
Juries are not used in courts of summary jurisdiction, but in the District and Supreme courts they play an important role in criminal trials. In these trials, the jury (a group of twelve citizens drawn from the electoral roll) makes findings of fact from the evidence presented. The judge explains the relevant law and directs the jury members to reach a verdict by applying that law to the facts as they see them.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.