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Indictable Offences

More serious criminal charges are called indictable offences.

An indictable offence is an offence where the defendant has the right to trial by jury.

There are two categories of indictable offences: Major Indictable Offences and Minor Indictable Offences

Major indictable offences must be heard in the District Court or the Supreme Court. Criminal trials in both these courts are held before a judge and jury, unless the defendant chooses to have a trial by a judge without a jury (this should only be done after taking legal advice). Major indictable offences include offences such as murder, rape, and threatening or endangering life. The Supreme Court must hear a charge of murder or treason and also hears other serious major indictable offences. All other major indictable offences can be heard in the District Court.

Minor indictable offences are heard in the Magistrates Court, where there is no jury, unless the defendant chooses to go to a higher court such as the District or Supreme Court, see Election below.

Multiple charges (major and minor indictable and summary)

Charges of major or minor indictable offences may be joined on the same Information (the document which is the formal written charge) with each other or with summary offences or both, where they arise out of the same set of circumstances or are of a similar character.

The procedure will be that of the most significant offending, for example, if there minor and major indictable offences on the same Information then the minor indictable will be dealt with as per the procedure for the major indictable.

However a superior court may decide to send the summary offences back to the Magistrates Court to be dealt with there.

The Court may also direct that the charges in a single information be dealt with separately in separate proceedings or that charges on separate Informations be dealt with in the same proceedings.

[See generally s 102 Criminal Procedure Act 1921 (SA)].

Sentencing Reductions

It is important for a defendant to get legal advice prior to their first court date, if possible, as sentencing reductions may apply depending at what point in the proceedings a guilty plea is entered (if one is entered at all).

If a defendant enters a guilty plea within 4 weeks of his or her first court appearance, 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 the matter gets to trial, the less the court may reduce the sentence [see Sentencing Act 2017 (SA) ss 39 and 40].


Unless a defendant charged with a minor indictable offence elects to be tried in the District Court, the case will be dealt with in the Magistrates Court as though it were a summary offence [section 108(1) and section 117(1) Criminal Procedure Act 1921 (SA)].

If an election is made the case is set down for a pre-committal hearing and is dealt with as though it were a major indictable offence. If no election is made the case follows the procedures of the Magistrates Court for summary offences, see Summary Offences

[For more on procedure see the relevant Court's Criminal Rules, the Criminal Procedure Act 1921 (SA) and the Juries Act 1927 (SA)].

Before deciding whether to elect to have the case dealt with in the District Court or not, the defendant should consider the following factors:

  • in the District Court, the decision as to whether the verdict is guilty or not guilty is made by a jury
  • the defence may be better able to present its case before a jury, being able to rely on the evidence given in the committal proceedings
  • the penalties a magistrate can impose on each charge are lower than those a judge can impose after a jury trial.

This consideration should always be made with the assistance of legal advice.

Bringing the person charged to Court

People charged with an indictable offence will always appear first in the Magistrates Court.

In the case of an indictable offence the formal charge is contained in an information which is filed in court. Unlike summary offences there is generally no time limit within which to charge a person with an indictable offence. However, where there has been an extraordinary delay it may be possible to defend a matter on this basis alone, although this is a complex area of law and legal advice should be sought.

A person may be arrested 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. She or he may be granted bail by the police (police bail). If granted police bail, she or he will not receive a summons but will be required to go to court for the first appearance on the day set out in the bail papers and on every other time that the case may then be before the Court. 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 Bail.

A person may not be arrested but be spoken to by the police and a report made. If the police later decide to lay a charge 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 a person who the police believe will not try to avoid the first court date.

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 then known and any police officer coming upon the person must have the power to arrest. Another situation in which a warrant is issued is when a person has not come to court in answer to their bail or in answer to a summons.

[See generally Criminal Procedure Act 1921 (SA) s 104].

Pre-Committal Process

Where a person is charged with a minor indictable or major indictable offence, there are specific documents which must be provided to them (or their lawyer) on or before their first appearance in the Magistrates Court.

These documents are:

  • a copy of the information;
  • a brief description of the alleged offending;
  • a notice outlining both-
    • information about sentencing reductions available in relation to guilty pleas; and
    • the process for having the matter called on in the Magistrates Court for the purpose of entering a guilty plea; and
  • if the defendant is charged with a minor indictable offence - the appropriate form for electing to be tried in a superior court.

See Criminal Procedure Act 1921 (SA) section 105, Criminal Procedure (General) Regulations 2017 reg 4(1).

During the first appearance in the Magistrates Court, the police prosecutor will inform the court of the period of time they will require to prepare a preliminary brief that is, material relating to the matter such as witness statements and other materials [Criminal Procedure Act 1921 (SA) s 106]. This brief is provided to the Office of the Director of Public Prosecutions to enable them to make a charge determination , i.e. to decide what appropriate charge(s) (if any) to proceed with.

As soon as practicable after providing the preliminary brief to the DPP, the police prosecutor must also provide a copy of the brief to the defendant (or their lawyer) and must file the brief with the Magistrates Court [s 106(1)(c)].

A defendant can call the matter on in the Magistrates Court at this stage to plead guilty to the offence(s) as charged. In these circumstances the Magistrates Court can either determine and impose a sentence on the defendant, or commit the defendant to a superior court for sentencing [Criminal Procedure Act 1921 (SA) s 108(2)]. In these instances, the matter does not have to proceed through the committal process.

It is always advisable to obtain legal advice before entering a plea at any stage of proceedings.

In pre-committal proceedings, a subpoena can only be issued by a Registrar only in specific circumstances - see section 107 of the Criminal Procedure Act 1921 (SA). In any other instance, a magistrate must determine an application for a subpoena [s 107(b)].

Committal Process

The committal process in the Magistrates Court for minor indictable and major indictable matters is divided into two, separate court hearings:

See Criminal Procedure Act 1921 (SA) s 109(1).

Committal proceedings can only be commenced once the DPP has made a charge determination [s 106(1)(e)].

The purpose of committal proceedings is for the magistrate to conduct a preliminary examination of the matter and to determine if the defendant should be committed to trial for the offence(s) in a superior court.

Charge Determination

After receiving the preliminary brief from the police prosecutor, the DPP will make a charge determinationas to what charge(s) (if any) will be proceeded with. Committal proceedings cannot commence until the DPP has made a charge determination[Criminal Procedure Act 1921 (SA) s 106(1)(e)].

Once a charge determination has been made, a committal appearance can occur, and at that point the DPP will assume conduct of the matter from the police prosecutor.

If no charge determination is made by the date of the second court appearance in the Magistrates Court, the matter may be adjourned, or if appropriate, the court may dismiss the charge(s) [Criminal Procedure Act 1921 (SA) s 106].

Committal Appearance

A defendant is able to enter a plea at the committal appearance in the Magistrates Court.

If a defendant pleads guilty at the committal appearance, the magistrate may either determine and impose a sentence on the defendant, or commit the defendant to a superior court for sentencing [Criminal Procedure Act 1921 (SA) s 110].

If a defendant does not plead guilty, the matter will be adjourned to an answer charge hearing . The DPP is required to prepare a committal brief, which is filed in the Magistrates Court and provided to the defendant (or their lawyer) as soon as possible after filing [s 111(3)]. The committal briefshould contain documents including witness statements, evidentiary material, any statement of the defendant (including any audio visual recording of that statement) and all other relevant material to the charge [s 111(1)]. The committal brief must be filed by the DPP at least 4 weeks' prior to the answer charge hearing [Criminal Procedure Act 1921 (SA) s 111].

Special provisions apply to witness statements which are included in the committal brief, where the witness is illiterate, a child under the age of 14 years, or a person with a disability affecting their ability to give a coherent account of their experiences - see section 111(6) of the Criminal Procedure Act 1921 (SA).

The matter is then adjourned to an answer charge hearing.

In the event negotiations between the parties are occurring at this stage, a defendant is able to request that the matter be called on in the Magistrates Court at any time within 4 weeks' after the committal appearance, for the purpose of entering a guilty plea [s 110(3)]. In this instance, for the purposes of sentencing, the defendant is treated in the same way as if they had pleaded guilty during the actual committal appearance i.e. the same sentencing discounts may apply [s 110(3)].

No Case to Answer

Prior to an answer charge hearing , a defendant can file and serve a notice asserting that there is no case to answer with respect to the charge [Criminal Procedure Act 1921 (SA) s 112(1)].

The notice must specify why the defendant asserts that there is no case to answer [s 112(3)(b)].

The defendant will then be given the opportunity to be heard on the application including giving or calling an evidence and making submissions in support of the application [s 114(1)(d)].

Answer Charge Hearing

During the answer charge hearing , the defendant will be required to either plead guilty or not guilty.

If they plead guilty, they will be committed for sentence. If they plead not guilty, they will be committed to a superior court if the magistrate determines that there is a 'case to answer'.

Committal for Sentence

Where a defendant pleads guilty during an answer charge hearing , sentencing may occur in the Magistrates Court provided a Form 9A has been submitted [see Magistrates Court Rules 1992 r22A].

This happens only if both the Director of Public Prosecutions and the defendant consent and without considering the strength or otherwise of the prosecution case.

The magistrate can also commit the defendant to a superior court for sentencing [Criminal Procedure Act 1921 (SA) s 113(2)(c)], and may send the case to the Supreme Court specifically for sentencing if:

  • it is an offence of treason, murder, or an attempt or conspiracy to commit or assault with intent to commit either of those offences; or
  • there is not the required consent; or
  • the magistrate is of the opinion that the interests of justice require committal to a superior court (this may be because magistrates are limited to sentencing a maximum of 5 years imprisonment for one offence, or 10 years imprisonment for more than one offence [see Magistrates Court Act 1991 (SA) s 9].

Sentencing is unlikely to proceed straight away. If the defendant is on bail the defendant may be remanded on continuing bail to appear for sentencing at a later date. If the defendant has not been granted bail they are remanded in custody and brought to the court on the day of sentencing by the authorities.

Once a defendant has been committed to a superior court for sentencing, they may only change their plea in the superior court with the permission of the court [Criminal Procedure Act 1921 (SA) s 119].

A defendant should obtain legal advice before pleading guilty at an answer charge hearing.

Committal for Trial

Where a defendant pleads not guilty during an answer charge hearing , the magistrate will consider the evidence for the purposes of determining whether the defendant should be put on trial for the offence(s) [Criminal Procedure Act 1921 (SA) s 113(2)(ii)]. The prosecutor must persuade the magistrate that there is a strong enough case against the defendant to put the defendant on trial [s 113(2)(ii)].

If, however, the defendant (or their lawyer) concedes that there is a case to answer in relation to the offence(s), the court can proceed on that basis and the defendant can be committed to trial [s 113(3)].

When determining whether there is a case to answer, the magistrate considers any statements and other materials filed with the court as contained in the committal brief. This may include witness statements that have been filed as part of the committal brief.

Where the defendant, at least two weeks' prior to the answer charge hearing, has filed a notice requesting oral examination of a witness during committal proceedings, the court can determine whether special reasons exist to grant permission for the witness to be called to give evidence.

See section 112(2), section 114(2), and section 114(3) of the Criminal Procedure Act 1921 (SA) outlining the special reasons for calling witnesses to give oral evidence.

If the court determines that special reasons exist, the witness can be called to give evidence from the witness box. The usual oath is administered, and the witness can then be examined, cross-examined, and re-examined in the usual manner [s 114(4)].

After considering the evidence (and any oral evidence of witnesses), the magistrate must decide if there is evidence from which, if believed by the jury, the defendant could be convicted (a prima facie case). If there is, the defendant is committed for trial in the District or Supreme Court. whichever is appropriate [Criminal Procedure Act 1921 (SA) s 115(3)].

The magistrate will fix a date for the next hearing in the proceedings, the arraignment, which is heard in a superior court.

Prior to the arraignment hearing, both prosecution and defence have to file and serve case statements on the other party. The prosecution must file their case statement not less than 6 weeks' prior to the arraignment date [s 123(1)(b)], and the defence is required to file their case statement no later than 4 weeks' after being given the prosecution case statement [s 123(3)].

The content of the prosecution case statement is outlined in section 123(2) of the Criminal Procedure Act 1921 (SA), and the content of the defence case statement is outlined in section 123(4) of the Criminal Procedure Act 1921 (SA).

For matters where:

  • the charge is treason, murder, or an attempt or conspiracy or assault with intent to commit either of those offences; or
  • the circumstances of the offence are of unusual gravity; or
  • the offence involves an unusually difficult question of law or fact, then -

the matter should be committed for trial in the Supreme Court. In any other case, the matter can be sent to the District Court [Criminal Procedure Act 1921 (SA) s 117(3)].

Ex officio Information (indictments)

Even if committal proceedings have not taken place, or if a magistrate has found during the committal proceedings that there is insufficient evidence to put a defendant on trial, the Director of Public Prosecutions may file a special information (known also as an indictment), called an ex officio information, against a person and that person must then stand trial in the normal manner in the District or Supreme Court.

Special sentencing provisions apply in relation to sentencing discounts when an ex officio information has been laid - see Sentencing Regulations 2018 (SA) reg 6.

See generally Director of Public Prosecutions Act 1991 (SA) s 7; R v Ratcliff, Stanfield and Utting (2007) 250 LSJS 226; [2007] SASC 297; R v Rushton [1967] VR 842.

Attending a superior Court

Declining to prosecute

All Informations (the formal charges) in the superior Courts are filed in the name of the Director of Public Prosecutions (DPP), whose officers prosecute the case on behalf of the State [Criminal Procedure Act 1921 (SA) s 103].

The Director of Public Prosecutions decides what the information should be in the superior Court.

If the DPP considers the case against the defendant is not strong enough, she or he can decide not to lay an information and the case will come to an end [Criminal Procedure Act 1921 (SA) s 122]. The DPP may also, at a later stage after the first arraignment decide not to proceed with the case. The prosecution then formally tells the Court and the defendant that they will not prosecute the case any further by announcing a nolle prosequi (no prosecution) at the Court.

The arraignment

Every person who is committed for trial or sentence for an indictable offence is remanded (put in either in custody or released on bail), to await trial or sentence [Criminal Procedure Act 1921 (SA) s 120(2)]. They are remanded until they appear before the District Court or the Supreme Court to be arraigned (formally charged in the superior Court with the offence), on the next arraignment day.

In the superior Court the defendant is referred to as the accused.

In the Supreme and District Courts, all accused must attend to be arraigned in person and, when the charge is read, plead either guilty or not guilty (unless fitness to plea is raised which would be dealt with at a directions hearing).

Accused people pleading guilty may be sentenced on that day, however a later date will usually be set for submissions on sentence [see rule 9(3) Supreme Court Criminal Supplementary Rules 2014 (SA)].

Accused who plead not guilty are remanded and a date for either trial or a disputed facts hearing (at the first directions hearing) will be set [see rule 11 Supreme Court Criminal Supplementary Rules 2014]. Cases should come to trial or be otherwise resolved within 12 months after the first arraignment [see rule 10 Supreme Court Criminal Supplementary Rules 2014 (SA)].

Pre-trial matters

Preparing for trial

A defendant (the accused) who has been committed for trial before a jury in the District Court or the Supreme Court may have to wait some time after their arraignment before the trial takes place.

If witnesses gave evidence at a committal hearing, it is recorded and typed up in documents called depositions. A copy of these depositions is available from the clerk of the court for the accused to use at the trial [s 134 Criminal Procedure Act 1921 (SA)].

The defendant is entitled to know if the prosecution intends to call witnesses at the trial who were not called at the committal hearing or if the charges are to be changed. In either case:

  • if the Director of Public Prosecutions (the DPP) intends to call a new witness, a copy of a statement of what this new witness says should be sent to the accused so that the defence can prepare its case; and
  • if the DPP intends to change the charge before trial, a copy of the new information should be sent to the accused.

Sometimes the accused calls a witness, or presents evidence to show that she or he could not have committed the crime because they were not at the scene of the crime but were somewhere else (alibi evidence). Notice of the accused's intention to submit such evidence must be filed with the court at the same time the defence case statement is filed, and must be served on the DPP [Criminal Procedure Act 1921 (SA) s 124].

Pre-trial conference

If at her or his arraignment the accused pleads not guilty a pre-trial conference (also called a directions hearing) is fixed. The accused is required to attend, as is her or his lawyer. A Judge conducts the hearing to see if the case can be resolved without going to trial. There may be a number of different outcomes:

  • the Director of Public Prosecutions (the DPP) may agree to withdraw some charges because the accused will plead guilty to others;
  • the DPP may agree to change the charge to a less serious one to which the accused would plead guilty;
  • the DPP may be persuaded to reconsider the evidence and/or re-interview some of the prosecution witnesses and decide not to proceed with the prosecution;
  • the accused may maintain a plea of not guilty to all charges.

The pre-trial conference may be adjourned if the Judge feels that further negotiations may resolve the case or where additional material is still to be supplied by the DPP. If no agreement is reached at the pre-trial conference the judge sets a trial date. Questions such as which witnesses are to be called by the prosecution, whether there are any legal issues to be decided by a Judge before any evidence is heard by the jury and how long the trial might take are then discussed.

Trials - Indictable Offences

If pre-trial conferences have not resolved the matter, it will be listed for trial. At the trial the prosecution and the defendant (the accused) will be expected to be fully prepared to present all the evidence, including having all witnesses at the Court.

Role of the Judge and jury

In a trial with a Judge and a jury, each have very different parts to play.

The jury listen to the evidence and decide who or what to believe. They decide what the facts of the case are. They are the only ones who can decide whether the accused is guilty or not guilty.

The judge sees that the proper procedures are followed and she or he makes decisions about all questions of what the law is in relation to the particular case. Because the jury do not decide these questions, many of the discussions and decisions related to the law are made when the jury is not in the courtroom.

When the jury reaches a verdict (decision on the guilt or otherwise of the defendant), its role comes to an end.

If the jury finds the defendant guilty, it is then the role of the Judge to decide the appropriate sentence.

Selection of the jury

Who can be on a jury?

Each person residing in South Australia who is enrolled to vote at the election of members of the House of Assembly can be summoned for jury service [s 11 Juries Act 1927 (SA)]. The Juries Act has some exceptions to this (see below) and a person who is 70 years old or over can apply to be excused from attendance [see s17(1)-(2)].

For further information on jury service, see also the Courts website.

A person is ineligible for jury service if he or she is:

  • mentally or physically unfit to carry out the duties of a juror; or
  • has insufficient command of the English language to enable him or her properly to carry out the duties of a juror; or
  • is declared by Schedule 3 of the Juries Act 1927 (SA) to be ineligible for jury service. Declared persons are:

    - the Governor, the Lieutenant-Governor and their spouses or domestic partners

    - Members of Parliament

    - members of the judiciary and their spouses or domestic partners

    - Justices of the Peace who perform court duties and their spouses or domestic partners

    - legal practitioners actually practising as such

    - members of the Police Force and their spouses or domestic partners

    - persons employed in a department of the Government whose duties of office are connected with the investigation of offences, the administration of justice or the punishment of offenders

    - persons employed in the administration of courts or in the recording or transcription of evidence taken before the courts.

A person is disqualified from jury service if he or she:

  • has been convicted of an offence for which death or life imprisonment is the mandatory or maximum penalty; or
  • has been sentenced to imprisonment for a term exceeding 2 years; or
  • within the last 10 years, has served any part of a term of imprisonment or a term of detention as a youth, or has been on probation or parole; or
  • within the last 5 years has been convicted of an offence punishable by imprisonment, or has been disqualified by order of a court from holding or obtaining a driver's licence for a period exceeding 6 months; or
  • is subject to a bond to be of good behaviour; or
  • has been charged with an offence punishable by imprisonment and the charge has not yet been determined.

Annual Jury List

Each year, a list of potential jurors is prepared for each of the three jury districts in the State - Adelaide, Northern (Pt Augusta), and South-Eastern (Mt Gambier). The State Electoral Roll subdivisions are divided up between the jury districts and jurors can generally only be selected for the jury district that covers their electoral subdivision.

At least 3000 names must be chosen annually for the Adelaide jury district, and 500 each for the Northern and South-Eastern districts. Names are obtained by random selection from the state electoral roll. The number of names chosen from each electoral subdivision must be proportionate to the number of names on the roll for each subdivision.

Once names are selected, the list is checked to determine whether any selected people live more than 150 km from the court where the trials will be. If so, they are sent a notice asking if they want to serve; their names are not included in the jury list unless they wish to serve.

Monthly jury pool

Each month, a number of potential jurors sufficient to cover all the trials for that month is randomly selected from the annual jury list.

Those on the monthly list are sent a summons to attend court for a general orientation session. They are then on call for the month and must telephone each day to see if they must attend for a particular trial.

How often can someone be required to serve on a jury?

Each year, every person on the State Electoral Roll aged 18-70 can be selected to be on the annual jury list, regardless of whether they have served before. If a person has served as a juror within the previous three years, they can apply to be excused from jury service if they receive a summons.

Once a person has been selected in a monthly jury pool, they can only be selected again in the same year after all other names have been selected, and 6 months after they have previously served.

Application to be excused from jury service can be made by a person summonsed to jury service, but not already serving on a jury, for the following reasons:

  • the person has served as a juror within the previous three years
  • the person is one of two or more partners from the same partnership, or of two or more persons employed in the same establishment, who have been summoned to attend as jurors on the same days
  • ill-health
  • conscientious objection
  • a matter of special urgency or importance
  • for any reasonable cause
  • the person lives 150km or more from the courthouse.

Selecting a jury for a trial

When the trial is called on, the accused is placed in the dock, the charge is read aloud and the defendant is again asked to plead guilty or not guilty. The women and men from whom the jury will be selected are already seated in court and their names are in a ballot box in the court. If a plea of not guilty is entered, twelve names are selected at random from the ballot box [s 46 Juries Act 1927 (SA)].

The prosecution and the defence may challenge (refuse) up to three jurors each without giving a reason (peremptory challenge). Where two or more persons are jointly charged, each is entitled to challenge 3 jurors peremptorily.

The prosecution and the defence may also challenge the right of a juror to sit on the jury on the basis that he or she is ineligible to act, or disqualified from acting, as a juror.

If a prospective juror is refused, further names are called until twelve jurors are accepted.

Being excused from the jury once a trial has begun

If a juror becomes ill during a trial or a matter of special urgency or importance arises for them, the Judge may order that the juror be excused from further attendance during that trial and for such further period (if any) as the Judge determines.

The minimum number of jurors for a trial is 10. If any of the twelve jurors is excused, does not turn up, or dies, then the trial can continue with 11 or 10 jurors.

Payment while on a jury

Employers must permit their employees to take leave for jury service. Employers are not required to provide paid leave. However, it is possible to apply to be excused from jury service or to defer jury service for work related reasons.

If an employer provides paid leave to a juror, the employer is entitled to be reimbursed the actual amount paid up to a maximum of $158 per day (indexed - amount as at March 2018).

Unless a juror is paid by an employer for the period during which they attend court, jurors are paid $20 for each day they attend, regardless of how long they are present.

Actual monetary loss or expenditure incurred as a direct result of jury service may be claimed (up to a maximum of $158 per day (indexed- amount as at March 2018)). For example, lost wages, the cost of extra child care or the cost of employing someone to cover absence at work if self-employed can be claimed.

A travelling allowance of 76 cents per kilometre, at a minimum of $9.12, (at March 2018) is paid to all jurors based on the distance from the juror's residence to the court and back for each day's attendance.

Higher daily rates apply to trial declared to be long trials.

Claims for these amounts have to be substantiated and made on the forms available on the Courts website.

The trial

Once the jury is empanelled the trial begins. The prosecutor makes an opening statement to the jury and then calls the prosecution witnesses one by one.

Witnesses must either take an oath on the Bible, Koran or other appropriate religious text or solemnly declare to tell the truth (an affirmation).

The prosecutor then questions the witnesses (examination-in-chief) who may then be asked questions (cross-examined) by the accused's lawyer.


Only information that complies with certain rules (the rules of evidence) can be given to the jury by a witness. It is on this information alone that the jury must decide if the accused is guilty or not guilty.

If the prosecutor or the defendant object to certain information being given to the jury, the judge must decide (usually when the jury is not present in the courtroom) whether it complies with these rules.

If it does comply, then it is included in the evidence and the jury can hear it, if not, it is excluded and the jury do not hear this evidence, see evidence.

No case to answer

When all the witnesses for the prosecution have been heard and the prosecution case has closed, the accused can, in the appropriate case (this is rare), submit to the Judge that there is no case to answer. The jury are not in the courtroom when this is done.

In this submission, the accused asks the Judge to tell the jury to find the accused not guilty without even hearing from the accused, on the basis that the prosecution has not produced sufficient evidence to support the charge.

If the Judge agrees, the jury come back into the courtroom and the judge then directs the jury deliver a not guilty verdict and the jury must do so. The case is then finished. If the Judge does not agree, the accused must present her or his case to the jury (however the accused does not have to give evidence and still has a right to silence).

The defence

In every trial the prosecution must prove that the accused is guilty beyond a reasonable doubt. The accused does not have to prove that she or he is not guilty.

The accused does not have to present any evidence. She or he may simply argue to the jury that the prosecution has not proved her or him guilty because after hearing all the prosecution evidence they should still not be satisfied beyond a reasonable doubt the she or he is guilty.

The accused however, may go into the witness box to give evidence on oath and be cross-examined and call other witnesses on her or his behalf. The accused may choose not to give evidence personally but call other witnesses, who may be cross-examined by the prosecutor.

Prosecutor's reply

When the defence case is closed, the prosecutor may bring evidence in reply to any new point raised in the defence case that could not have been foreseen by the prosecution. One example of this is where the accused raises an alibi for the first time at the trial and has not given any prior notice of this to the prosecution [s 124(1)(b) Criminal Procedure Act 1921 (SA)].

Addresses and summing up

After all the evidence is given, both the prosecutor and the accused's lawyer address the jury. The Judge then sums up the case to the jury, explains the law that applies to the case and the jury goes to the privacy of the jury-room to consider its verdict.


When the jury has reached its verdict, they return to the courtroom and the foreperson gives the verdict, which must be unanimous (all twelve of the same opinion). A majority verdict (where 10 or more agree unless the jury is only 10, then 9 is the majority) is accepted after four hours. There is an exception where the defendant is on trial for murder or treason, in which cases must be unanimous [s 57 Juries Act 1927 (SA)].

If the jury reach a point where they cannot agree upon a verdict and they say that more time will not help, the jury may be discharged and a new trial may be held. This is called a hung jury.

If the accused is found not guilty, she or he is discharged and free to go.

If the accused is found guilty the Judge must consider what penalty to impose, see The sentencing process. The case may be adjourned to another date for the judge to consider what penalty should be given. If the offence is a serious crime, an accused who may have been on bail up to the jury verdict, may have their bail revoked and be remanded in custody to await sentence.

    Indictable Offences  :  Last Revised: Wed Feb 28th 2018
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