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, also known as prosecution. For a summary offence (where the defendant has not been arrested) that can be done by filing a Form 2 Information and Summons at the Magistrates Court via the CourtSA portal [Criminal Procedure Act 1921 (SA) s 49; Joint Criminal Rules 2022 (SA) r 62.1].

If the informant is not a public authority [see r 2.1 for definition] the form must be signed by an attesting witness.

When filing an Information, the informant must identify the location at which the applicant requests that the proceeding be heard, at a location which the Court sits and either close to where the offence or one of the offences charged was allegedly committed, or where the defendant lives [ r 62.1 (12]. The Court will consider the request in listing the first hearing, but it is in the discretion of the Court as to the location of the first hearing. It is also in the discretion of the Court as to the location of any subsequent hearings or of any trial.

For summary offences the time limit within which to issue an information is six months if an expiation notice has been 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:

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. In the normal course, the first hearing of a proceeding initiated by a Form 2 Information and Summons - Lower Courts will be listed several weeks after the Information is filed [Joint Criminal Rules 2022 (SA) r 65.1(2)].

The Form 2 Information and Summons Lower Courts must be served as a soon as practicable, and in any event at least 7 days before the first hearing date. Unless the Court otherwise orders, service of the Information must be by original service [r 62.4(6)-(7)]. Original service includes personal service, delivery service, email service, post service, electronic service, or portal service, via the CourtSA portal as prescribed in the Joint Criminal Rules 2022 (SA) [r 33.7]

The service requirements outlined in the Joint Criminal Rules 2022 (SA) should be read in conjunction with service requirements outlined in section 27 of the Criminal Procedure Act 1921 (SA (outlined below).

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 [s 27]:

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]. The person 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 they must be taken before the court as soon as possible, where they 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 the person 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.

When the Information is filed with the court, a summary of allegations and the defendant’s antecedent report must also be filed [Joint Criminal Rules 2022 (SA) r 62.3]. These forms must also be served on the defendant [r 62.4].

A defendant or the defendant’s lawyer may by written notice request better particulars of a count in an Information. For further details on this process, and time limits that apply, refer to rule 64A.1 of the Joint Criminal Rules 2022 (SA).

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:

It is important that the defendant get legal advice about their plea as soon as possible. If a defendant enters a guilty 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].

For more information, see also The Sentencing Process, Matters affecting sentence.

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.

A defendant who is in custody and is not granted bail is remanded in custody to appear on the next court date and is brought back to court by the authorities.

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 76.2 of the Joint Criminal Rules 2022 (SA) (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 they are 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 they will still plead not guilty. The defendant is not required to reveal to the prosecution what their defence is (except an alibi [see r 75.4(1)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 75.2 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 their lawyer) to attend a pre-trial conference to ensure compliance with the above [see r 76.3(1)]. 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 76.3(4)-(5)

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.

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 a 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 prosecution must always prove that a defendant is guilty beyond reasonable doubt. The defendant does not have to prove that she or he is not guilty.

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.

Once all the defendants' evidence has been presented, the prosecutor may bring evidence to reply to any new point raised by the defence that could not have been predicted by the prosecution.

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).