In the Magistrates Court, a person can be found guilty of, and convicted of, a summary offence in their absence [see Criminal Procedure Act 1921 (SA) ss 62A, 62BA, 62C]. This can occur when a summons is served but the defendant fails to attend on the date specified on the summons, or where the person is bailed to attend the hearing but fails to attend. The prosecution obtains the court's permission to proceed ex parte (without the person being present). The court will then hear only the prosecution version and if the Magistrate considers the charge is made out, the court can make a finding of guilty and convict the defendant, and in some cases, impose a penalty.

However, a person convicted may apply to the Magistrates Court to set aside that conviction and if the application is granted the case is reconsidered as though the conviction and penalty were never imposed.

The convicted person must complete and file with the court a Form 172A Interlocutory Application for Set Aside and Rehearing [Joint Criminal Rules 2022 (SA) r 161.1] (available from the Magistrates Court Registry or CourtSA portal) within 14 days of receiving notice of the conviction [see Criminal Procedure Act 1921 (SA) s 76A(1(b)].

The Court can also set aside the conviction on it's own initiative [s 76A(1)(a)].

The case will then be listed before a magistrate who will decide whether it is appropriate in all the circumstances to set aside the conviction and have the matter re-heard. Applications made out of time may still be considered by the court in special circumstances.

A court will set aside a conviction or order if it is satisfied that:

Where a conviction or order is set aside the Court can either re-hear the matter immediately or adjourn the proceedings for to a hearing at another time [s 76A(4)].

Appeals from the Magistrates Court to the Supreme Court are governed by section 42 of the Magistrates Court Act 1991 (SA) and the Joint Criminal Rules 2022 (SA) Chapter 9, Part 3.

Those appeals that are against conviction or sentence for summary or minor indictable offences go to a single judge of the Supreme Court [see s 42(2)(b)].

A second or subsequent appeal may be made against conviction with the permission of the Supreme Court. To obtain permission, the person must satisfy the Court that there is fresh and compelling evidence that, in the interests of justice, should be considered on an appeal. The Court may allow a second or subsequent appeal if it thinks that there was a substantial miscarriage of justice, quash the conviction and either substitute a verdict of acquittal or order a re-trial.

See Magistrates Court Act 1991 (SA) s 43A.

Appeals against sentence for major indictable offence

Those appeals that are against sentence for a major indictable offence go, with the permission of the Court of Appeal, to the Court of Appeal of the Supreme Court [see s 42(2)(ab)].

The completed Notice of Appeal must be filed within 21 days of the date of the judgment, decision or order being appealed [see Joint Criminal Rules 2022 (SA) r 185.1 and 185.3]

The appellant must serve the Notice of Appeal on both the other party and the registrar of the court where the decision being appealed was made, as soon as practicable [r 185.4].

A person who is in custody may apply to the court that sentenced them for bail while awaiting the outcome of their appeal.

In driving cases where the court has disqualified a person from driving (cancelled or suspended the licence), if the defendant appeals they can return to the court which imposed the disqualification and ask for the order of disqualification to be suspended until the appeal is heard. Before the application to suspend disqualification can be heard, the Notice of Appeal must first be filed in the Supreme Court and a copy of the notice must be served on the Magistrates Court which sentenced them. If the suspension of disqualification is granted by the Magistrates Court, then the defendant must show the Registrar of Motor Vehicles that such an order was made and that the appeal has been instituted and they will be able to continue driving until the appeal is heard and decided [Motor Vehicles Act 1959 (SA) s 139A].

A person who is represented at a hearing by a lawyer need not attend.

The matter is argued first by the lawyer of the person who is appealing, who puts to the judge legal propositions and previous cases (precedents) supporting the appellant's case. The respondent's case is then argued, usually by the Crown Solicitor, who takes cases over from the police (and other Government departments and statutory authorities) when they move to the Supreme Court. Again legal propositions and precedents are put to the judge, this time in support of the opposing view of the case.

It is up to the judge to decide which argument is correct. The appeal might be allowed or dismissed, with or without costs being awarded against the appellant.

If the appeal is allowed, the judge may:

A person who has been convicted following a trial or has pleaded guilty and been sentenced by a District or Supreme Court Judge has a right of appeal to the Court of Appeal of the Supreme Court [see Criminal Procedure Act 1921 (SA) s 157]. These appeals are governed by the Joint Criminal Rules 2022 (SA) Chapter 9 Part 4.

The appeal must be made on one of the following grounds [s 157]:

The appellant is entitled to be present at the appeal by audio-visual link unless the appeal is based on a question of law only, in which case the permission of the Court must be obtained for an appellant who is in custody to be present [see Criminal Procedure Act 1921 (SA) s 167].

The Notice of Appeal must be filed with the Court of Appeal within 21 days of the date of the judgment, decision or order being appealed [see Joint Criminal Rules 2022 (SA) r 193.1].

The Court of Appeal would ordinarily be comprised of 3 Judges [see Joint Criminal Rules 2022 (SA) r 192.3(a)]. In some matters the Chief Justice or President of the Court of Appeal may determine that the Court of Appeal should be comprised of 2 or 5 Judges, depending on the matter [see r 192.3(b) and (c)].

Under rule 192.4, a single Judge may hear applications which are interlocutory or ancillary to an appeal to the Court of Appeal such as [r 201.1]:

A person found guilty following a trial may appeal against that conviction.

An appeal is not a re-hearing of the case. The appeal is decided on issues arising from the transcript of the evidence at the trial. In exceptional circumstances the appellant may be allowed to present fresh evidence to the Court. This should be placed before the Court in the form of affidavits from witnesses saying what they would say if called in a new trial.

The appellant must convince the Court of one of the following:

The Court has wide powers to deal with an appeal. It may allow the appeal against conviction, quash the conviction and either substitute a verdict of acquittal or order a re-trial [Criminal Procedure Act 1921 (SA) s 158].

However, even if the Court finds in favour of the appellant on some point of law, it may still dismiss the appeal if it finds that no substantial miscarriage of justice has occurred [Criminal Procedure Act 1921 (SA) s 158(2)].

The Court may also allow an appeal by the Director of Public Prosecutions against acquittal, to quash the acquittal and order a re-trial [see s 158(4)], or an appeal against an interlocutory judgment with the permission of the Court of Appeal [Criminal Procedure Act 1921 (SA) s 157].

Second or subsequent appeals

A person found guilty following a trial may file a second or subsequent appeal against conviction with the permission of the Court of Appeal. To obtain permission, the person must satisfy the Court that there is fresh and compelling evidence that, in the interests of justice, should be considered on an appeal. The Court may allow a second or subsequent appeal if it thinks that there was a substantial miscarriage of justice, quash the conviction and either substitute a verdict of acquittal or order a re-trial [Criminal Procedure Act 1921 (SA) s 159].

A person found guilty following a trial can also appeal against the sentence imposed by the Judge in that case.

The appellant must convince the Court that the Judge made a mistake in law when imposing sentence (for example, ignored a factor which would point to a lesser sentence) or that the sentence imposed was so obviously outside the usual range of penalties imposed for the type of offence as to be manifestly inadequate or manifestly excessive.

The Court may allow an appeal, quash the sentence passed, and substitute what sentence it thinks ought to have been passed or order re-sentencing. However, on an appeal against sentence by the convicted person, the Court must not increase the severity of the sentence, except to extend the non-parole period where the Court otherwise decreases the sentence [see Criminal Procedure Act 1921 (SA) s 158(8)].

When a convicted person obtains permission to appeal against sentence, the Director of Public Prosecutions may then also appeal against the sentence, without the need to obtain the permission [see s 157(2)].