This section deals with summary offences and the procedures a defendant will encounter in the Magistrates Court. A person charged with a summary offence is known as the defendant. The plaintiff in a criminal matter is the Crown (the State) but prosecutions in the Magistrates Court are run either by police prosecutors on behalf of the Crown, or by lawyers who work as prosecutors for the South Australian Police (SAPOL). SAPOL is known as the complainant who lays the charge before the court. Therefore the parties to a summary case are police and defendants.
The Magistrates Court
There is one Magistrates Court in South Australia. Registries are located in Victoria Square, in major suburban locations and in country towns. Cases are conducted before a Magistrate, or in some cases, a special justice.
Most criminal cases are the result of police action and these cases are presented by a police prosecutor from a large table (the bar table) in front of the Magistrate's bench that is reserved for the prosecutor and the defence lawyer(s).
If the defendant is represented by a lawyer, the lawyer sits at the bar table and the defendant stands in the dock (a closed, raised box usually near the front and to one side of the court).
A defendant pleading guilty remains in the dock until penalty is imposed. A defendant pleading not guilty, who is not in custody usually sits behind her or his lawyer while the trial is being conducted.
Unrepresented defendants who conduct their own trials sit in a chair placed near the bar table and facing the bench, but stand in the dock for any proceeding other than the trial itself. It is usual for a defendant in custody to remain in the dock at all times.
A shorthand writer or typist usually sits in front of the magistrate recording the proceedings. In some courts the proceedings are tape recorded.
Court hearings are generally open to the public. However, the court can be 'closed' (that is, only the people involved with the case and court officials are allowed to be present) either for the whole of the case or some part of it; for example where a child is involved either as the defendant or a witness, during a case involving a sexual offence where the person said to be the victim of the offence is giving evidence or where a witness might suffer hardship or embarrassment.
Before a person appears in court the police will go through a number of formal steps. Most of these steps are set out in the Criminal Procedure Act 1921 (SA).
The formal charge of an offence is called an Information. Prior to 3 October 2017 the formal charge of most summary offences was called a Complaint.
An Information can be laid personally or by a legal practitioner, or other person duly authorised to lay the information on the informant's behalf. For a summary offence that can be done by going to the Magistrates Court and saying to a Registrar, Deputy Registrar or justice of the peace that an offence has been committed [Criminal Procedure Act 1921 (SA) s 49; Magistrates Court Rules 1992 (SA) r 12.02].
For summary offences the time limit within which to issue an information is six months if an expiation notice has be given for the offence (from the expiry of the expiation period specified in the notice) but for any other summary offence the time limit will be two years (of the date on which the offence is alleged to have been committed) [Criminal Procedure Act 1921 (SA) s 52].
A private citizen who lays an information must carry on the prosecution. However, most prosecutions for summary offences are begun by, and in the name of, the police. The prosecution is conducted either by a police prosecutor or a lawyer employed by the police. Certain government departments and agencies, such as the Department of Transport, Energy and Infrastructure and Consumer and Business Services, the Department of Primary Industry and Fisheries, Safework SA and others employ their own legal officers or use lawyers from the Crown Solicitor's Office for this purpose, for example for prosecutions in relation to fisheries and native vegetation offences.
The police have considerable discretion in deciding whether or not to prosecute a complaint. Although it may strongly appear that a person is guilty of an offence, it is the job of the prosecutor to consider the available evidence and they may decide not to go ahead with the charge for a number of reasons, such as:
- the youth, old age or illness of the offender;
- the offender's willingness to give evidence against someone else;
- the fact that the relevant law is unpopular, controversial or obsolete;
- the breach of the law was only technical or trivial.
A person may be spoken to by the police or other investigators about an allegation and a report made to decide if an information should be laid. If it is decided to lay an information, she or he would then receive a summons to appear in a particular court at a time and on a date stated in the summons. This is most likely to happen with certain criminal offences where the authorities feel it is better to report, rather than arrest, the person.
A summons is usually served by a police officer or an officer or employee of a public authority, who either gives it personally to the person to whom it is directed or leaves it with someone else who appears to be aged 16 years and over at the person's last or most usual address [Criminal Procedure Act 1921 (SA) s 27]. A summons can also be served:
- Via post;
- Via fax;
- Via email, although note the additional requirement of access;
- Via another electronic form, such as through the provision of an internet link from which the information can be obtained or downloaded; or
- Via the provision of a USB or other such device which is then provided to the person personally, via registered post, or left at their last known address with someone aged 16 years or over.
See section 27 of the Criminal Procedure Act 1921 (SA).
If serving a summons via electronic means, it must be ascertained that the person receiving the summons has the means to download/access and (if required) print the document(s) [Criminal Procedure Act 1921 (SA) s 27(2)].
For more serious offences, a person may be arrested by police without a warrant and then, subject to special provisions of the law allowing a delay, must be taken to a police station in as short a time as reasonably possible to be formally charged with the offence [ Summary Offences Act 1953 (SA) s 78]. She or he may be granted bail by the police officer in charge of the police station (police bail) and must then appear before a Magistrates Court for the first time at a later specified date. If refused police bail she or he must be taken before the court as soon as possible, where she or he may again apply for bail (court bail), see ARREST, YOUR RIGHTS AND BAIL, Bail.
A further option is that a warrant may be issued. This allows any police officer to arrest the person named in the warrant and take her or him to court. This step is usually taken when the person's address is not known and any police officer seeing the person must have the power to arrest. Another situation in which an arrest warrant is issued is when a person has not come to court in answer to their bail or in answer to a summons [Criminal Procedure Act 1921 (SA) s 58].
Some detail is given on the Information, such as the date, time and place of the alleged offence, details of the offence and the section of the Act that creates the offence.
Defendants can request details of what the case against them is. Most prosecutors will supply a statement of allegations which are a summary of the prosecution case against the defendant. Further and better particulars, such as the conduct of the offender that the police will claim as proof of the offence, may be asked for in writing, either by the defendant or the defendant's lawyer.
Defendants should have legal advice before appearing in court, and a defendant who is not legally represented can ask the court to put the matter off (adjourn it) so that legal advice can be obtained.
Duty solicitors are available every day at all metropolitan and some country Magistrates Courts. A duty solicitor will usually give advice, and may assist in obtaining an adjournment. In a country court where there is no duty solicitor the court might ask a lawyer appearing in the court to take on the role of duty solicitor and briefly discuss the matter with an unrepresented defendant. It is important to arrive early at the court so there is time to find, and talk to, the duty solicitor.
A person who has been arrested and granted police bail must appear personally on the first appearance (the date and time set out in the bail papers) and on all occasions the case is before the court, even if that person is represented by a lawyer. If the person bailed fails to appear, the court can issue a warrant for her or his arrest.
A person who is summoned and is not on bail need not appear personally if a lawyer appears on the person's behalf [see Criminal Procedure Act 1921 (SA) s 64]. However, if neither the person charged nor a lawyer attends court, a warrant for the arrest of the person may be issued [see s 58]. Alternatively the court may deal with a summary offence in the defendant's absence if the summons has been served [see s 62A]. This could mean a possible defence, or matters the court should hear in relation to penalty, will not be brought to the court's attention.
See also our Fact Sheet Going to Court.
At the defendant's first appearance in court the charge is read out so that the offence that the defendant is charged with is clear. Usually the defendant is not required to enter a plea (that is to say whether she or he is guilty or not guilty) at this first appearance, and should not do so, without legal advice.
The defendant's options are:
- Ask that the case be adjourned to a later date so that she or he can obtain legal advice (without telling the court whether she or he is going to plead guilty or not guilty), see Adjournments below; or
- Plead guilty and the court will try to finalise the matter on that day, see Pleading guilty below; or
- Tell the magistrate that they intend to plead not guilty. The matter is usually adjourned for a trial on another date, as the court would not have time to hear the case immediately, nor would the prosecution be ready with witnesses, see Pleading not guilty below.
It is important that the defendant get legal advice about their plea as soon as possible. If a defendant enters a guitly plea within 4 weeks of her or his first appearance in court, then the court may reduce the sentence that would otherwise have been imposed by up to 40 per cent (although there are some sentences that can never be reduced). The closer a matter gets to trial the less the court may reduce the sentence [see Sentencing Act 2017 (SA) s 39].
Often when a defendant first appears in court the case is adjourned so the defendant can obtain legal advice or otherwise prepare for the case. The court has a general power to adjourn cases [see s17 Magistrates Court Act 1991 (SA)].
When a case is adjourned it is listed for plea or mention at the next appearance. This means that on that next appearance the defendant could plead guilty and have the matter dealt with and finalised. Otherwise the case could only be mentioned in order to be adjourned to a later date.
Before pleading guilty (even for a minor offence) a person should get legal advice.
If the defendant has entered a plea of guilty the magistrate will first ask the police prosecutor to outline the facts of the case. These facts should have been obtained by the defendant or the defendant's lawyer before this hearing and should have been checked for accuracy by the defendant before they are given in court.
Sometimes the defendant admits that she or he has committed the offence but disputes some of the allegations made by the prosecution. In this situation there would be a disputed fact hearing on another day, see The Sentencing Process below. After the prosecutor has outlined the facts, the prosecutor also tells the magistrate of any prior offences the defendant has committed and any injury, loss or damage resulting from the offence [see Sentencing Act 2017 (SA) s 13].
The defendant or the defendant's lawyer then presents any facts or other relevant information in mitigation (lessening) of the penalty, (see The Sentencing Process below) and addresses the court on why a severe penalty should not be imposed and what might be the most appropriate penalty.
The magistrate may also seek information about anything else which in her or his opinion, is relevant to the matter [see Sentencing Act 2017 (SA) s 12]. The magistrate then imposes a penalty, see The Sentencing Process, Penalties below. The reasons for the sentence imposed should be stated and the legal effect of the sentence explained to the defendant [see Sentencing Act 2017 (SA) s 19].
If the defendant is pleading not guilty the case will eventually come before the court so that a date in the future can be set aside for the hearing of all the evidence (the trial). At the trial the prosecution and the defendant will be expected to be fully prepared to present all the evidence, including having all witnesses at court.
Before the case is listed for trial there are certain pre-trial procedures.
Rule 26 of the Magistrates Court Rules 1992 (SA) state that the prosecution and the defendant must speak with each other candidly to see if the case can be resolved without a trial. The prosecution may decide after these discussions not to proceed with the charge or change the charge to one which the defendant accepts that she or he is guilty of. The prosecution should tell the defendant in detail what the prosecution witnesses will say at a trial so that the defendant can reflect upon whether she or he will still plead not guilty. The defendant is not required to reveal to the prosecution what her or his defence is (except an alibi [see r 26.03]) or what evidence she or he might present at trial (except notice of an intention to present evidence of discreditable conduct of a co-defendant [see r 26.13 and Evidence Act 1929 (SA) s 34P(4)] (although if this is not done it reduces the chances that the matter will resolve without a trial).
The court may require the prosecution and defendant (or her or his lawyer) attend a pre-trial conference to ensure compliance with the above [see r 26.05]. Pre-trial conferences usually take place in closed court (that is, they are not open to the public) and nothing said or not said by a defendant (or her or his lawyer) can be used at a later trial [see rr 26.06-26.07].
If the discussions do not resolve the case and a trial should take place, the defendant and the prosecution must discuss how long the trial may last, whether any facts are not disputed and can perhaps be presented to the court as agreed between prosecution and the defence and how else the court's time can be put to best use during the trial.
The court must be told of the outcome of these points before it will set a trial date.
The direct Police Prosecution numbers for the main metropolitan areas are:
- Adelaide – ph: (08) 8207 5858 or ph: (08) 7322 3904
- Christies Beach – ph: (08) 8392 9116
- Elizabeth – ph: (08) 8207 9416
- Port Adelaide – ph: 8207 6440
Mount Gambier Police Prosecution can be contacted on – ph: (08) 8735 1040.
If the defendant has pleaded not guilty, the matter will be listed as a defended hearing and a date set for trial. At the trial, the prosecution must prove, not only that the defendant did the act, but in most cases also that the defendant knew what she or he was doing (or were reckless). These elements must be proved beyond reasonable doubt.
To begin the trial, the defendant is asked how they plead to the charges. If the plea is still 'not guilty', the prosecution must then fully present its case.
The prosecutor will give a brief summary of the prosecution case and say which witnesses will be called - this is called the opening address. The police officers and other witnesses are then called one by one to give their evidence.
On first entering the witness box each witness is required to take an oath or give an affirmation to tell the truth. The prosecutor then questions the witnesses (examination-in-chief). When the prosecutor has finished asking questions to the witness, the defendant is entitled to ask the witness questions in cross-examination.
To decide whether a defendant is guilty or not guilty, the magistrate can only take into account the evidence presented in court, see Evidence below. Evidence includes all the information given directly to the court by a witness under oath.
This information must comply with particular rules (the rules of evidence) which have been built up by the courts over many years and some have also been made by the Parliament. If the prosecution or the defence object to certain information being given the magistrate must decide whether it complies with these rules. If it does, then it is included in the evidence and the magistrate can take notice of it in reaching her or his verdict. If not, it is excluded.
When all the witnesses for the prosecution have been heard and the prosecution case has closed, the defendant can, in an appropriate case (this is rare), submit to the magistrate that there is no case to answer.
The defendant asks the magistrate to dismiss the prosecution's charge without hearing from the defendant, on the basis that the prosecution has not produced sufficient evidence to support the charge.
If the magistrate agrees, the charge is dismissed and the case is over. If the magistrate does not agree, the defendant must present her or his case.
The defendant does not have to present any evidence. She or he may attempt to show any inconsistencies and shortcomings in the prosecution case and simply argue that the prosecution has not proved her or him guilty beyond reasonable doubt. If this is accepted the defendant will be found not guilty.
The defendant however, may go into the witness box to give evidence on oath or affirmation, they will then be cross-examined. They are also able to call other witnesses on her or his behalf. The defendant may choose not to give evidence personally but call other witnesses. There are a number of different defences that may be put forward. If appropriate the defendant may rely on more than one defence, see CRIMINAL AND TRAFFIC OFFENCES, Defences.
After all of the evidence is heard, the prosecutor and then the defendant (or the defendant's lawyer) have the right to address the Magistrate as to why the defendant should or should not be found guilty of the charges.
After hearing all of the evidence and the addresses, the Magistrate has the duty (without referring to anyone else) to decide whether the defendant is guilty. The magistrate may adjourn the case to consider whether the defendant is guilty or not, but in many cases the decision is given straight away.
If there is any reasonable doubt about whether the defendant is guilty, the defendant is given the benefit of that doubt and found not guilty, the charge is dismissed.
If satisfied beyond reasonable doubt that the defendant is guilty, the magistrate will find the charge proved and will then consider what penalty should be imposed, see The Sentencing Process (and following sub-sections discussing the matters affecting sentences etc).
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.