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].

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 higher 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]. The committal brief must be filed and served in the prescribed form, either a in electronic form - Form 71e Evidentiary Material Brief, or if served in physical (hard copy) form - Form 71h Evidentiary Material Brief. However, unless the court orders otherwise, evidentiary material brief will generally be required to be filed and served in electronic form (see Joint Criminal Rules 2022 r 82.3].

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, a victim of an alleged sexual offence or a victim of an alleged offence involving domestic abuse (within meaning of the Intervention Orders (Prevention of Abuse) Act 2009 (SA)) - see section 111(6) of the Criminal Procedure Act 1921 (SA).

If the matter relates to a child sexual offence by a young offender, pursuant to section 19A of the Young Offenders Act 1993 (SA), the alleged victim cannot be required to give oral evidence for the purposes of the committal proceedings (except in the form of an audio-visual record under that section).

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)]. The defendant must file a request to have the matter called on for guilty plea in the prescribed form- Form 52 Request to Have Matter Called on for Guilty Plea. 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)].

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 prescribed form is a Form 121 Notice of Intention to Assert No Case to Answer, and must be filed and served at least 14 days before the answer charge date [Joint Criminal Rules 2022 (SA) r 86.1].

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)].

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 higher court if the magistrate determines that there is a 'case to answer'.

Where a defendant pleads guilty during an answer charge hearing , sentencing may occur in the Magistrates Court provided a signed Form 61 has been submitted [see Joint Criminal Rules 2022 (SA) r 71.1].

Sentencing for a major indictable offence only happens 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 higher 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:

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 higher court for sentencing, they may only change their plea in the higher 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.

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 higher 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 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)].

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.

An information (the formal charge sheet) may only be filed in the Supreme Court or District Court in the name of the Director of Public Prosecutions (DPP) [Criminal Procedure Act 1921 (SA) s 103]. Lawyers from the Office of the DPP prosecute matters on behalf of the State.

If the DPP considers the case against the defendant is not strong enough, they 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.

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 higher court with the offence), on the next arraignment day.

In the higher courts 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, where different procedures will apply as explained below).

If after arraignment the matter is resolved on the basis of entry of a guilty plea or the defendant wishes to change their plea to guilty, the defendant must as soon as practicable file and serve on the Director a request to have the matter called on for guilty plea in the prescribed form. Upon filing of a request to have matter called on for guilty plea under subrule (1), the matter will be placed into an arraignment list and any listed hearing or trial for that matter will be vacated [Joint Criminal Rules r 96.5].

Different processes and time frames apply for priority proceedings [see Joint Criminal Rules 2022 (SA) r 2.1 for definition of priority proceeding; r 96.2].

Supreme Court

If a defendant was committed for sentence or pleads guilty at arraignment, the proceeding will generally be remanded to a sentencing hearing. If a defendant pleads not guilty at arraignment, the proceeding will generally be remanded to a directions hearing.

If at arraignment an issue of fitness to stand trial or mental competence of the defendant is raised, procedural orders will generally be made and the proceeding will be remanded to a directions hearing.

[Joint Criminal Rules 2022 r 96.3].

District Court

If a defendant pleads not guilty at arraignment in the not guilty arraignment list, the proceeding will generally be listed for trial and remanded to a first directions hearing callover.

The Court expects parties to make realistic and achievable estimates of the length of trials to be listed. The Court also expects counsel to be available for the whole of the period for which the trial has been listed.

If at arraignment an issue of a defendant’s fitness to stand trial or mental competence is raised, the proceeding will generally be remanded either to a first directions hearing callover or to a hearing before the arraignment Judge.

If a defendant was committed for sentence or pleads guilty at arraignment and there is to be a disputed fact hearing, the matter will generally be listed for a disputed fact hearing with or without sentencing submissions.

If a defendant appears at arraignment in the guilty arraignment list, generally submissions on sentence are expected to be made on the arraignment date.

If a defendant appears at arraignment in the not guilty arraignment list and pleads guilty, generally the defendant will be remanded for sentencing submissions.

[Joint Criminal Rules 2022 r 96.4].

For District Court circuit proceedings, the procedures for listing trials, disputed fact hearings and sentencing submissions are adapted to the circumstances of circuit hearings and differ from the procedures set out above.

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 [Criminal Procedure Act 1921 (SA) s 134 ].

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:

Sometimes the accused calls a witness, or presents evidence to show that they 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].

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 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.

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 they 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.

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 SA website.

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

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

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:

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 persons 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.

The jury panel list is not a public document and is supplied to the parties in court for the purpose of jury selection only.

Further requirements about the selection of jurors by ballot, and how jury panels are formed are outlined in rules 132.1-132.6 of the Joint Criminal Rules 2022 (SA).

Powers of Sheriff or Sheriff’s officer

The Sheriff must ensure that jurors while in a jury pool room, jury retiring room, courtroom, building in which a courtroom is situated, at a view or moving between any of those places are in the charge of the Sheriff or a Sheriff’s officer [Joint Criminal Rules 2022 (SA) r 132.5].

If a juror does not attend court in response to a summons, or comply with a direction by the Sheriff, then the Sheriff must report the fact to a judge [r 132.6].

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 [s 56(2)].

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 $178 per day (indexed - amount as at 1 July 2022).

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 1 July 2022)). 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. This amount is on top of the $20 mentioned above.

A travelling allowance of 85 cents per kilometre (as at 1 July 2022) 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.

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.

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).

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.

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)].

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.