Criminal law

Charged with an offence in South Australia? You need to know this.

The Criminal Procedure Act 1921 (CP Act) divides criminal offences in South Australia into the following classes:

  1. Summary offences.
  2. Minor indictable offences.
  3. Major indictable offences.

The classification of offences is important because different rules and processes govern different types of offences.  In this blog we explore some of the ways that proceedings operate differently depending on offence classification.

Summary offences

Summary offences include offences either not punishable by imprisonment or for which a maximum penalty of, or including, imprisonment for two years or less is prescribed.

Some other offences, including dishonesty and property-related offences, are also classified as summary offences, depending on the circumstances of the offending and provided that certain aggravating factors are not present.

Summary offences are heard and determined in the summary jurisdiction of the Magistrates Court before a Magistrate.

In the case of a summary offence that is not expiable, proceedings must be commenced within two years of the date on which the offence is alleged to have been committed.

The Magistrates Court in its summary criminal jurisdiction has the power to award costs as it thinks fit.  Ordinarily, costs will be ordered in favour of a successful party against an unsuccessful party in accordance with the Lower Court costs scale.

Indictable offences

All offences that are not summary offences are classified by the CP Act as indictable.

The minor indictable category includes offences for which the maximum term of imprisonment does not exceed five years. Certain other offences, including dishonesty offences, offences against the person and property-related offences, are classified as minor indictable offences, depending on the circumstances of the offending and provided that certain aggravating factors are not present.

Minor indictable offences

If you are charged with a minor indictable offence or offences, you have the right to elect to be tried by a jury in the District Court, or to remain in the Magistrates Court.

That is, a minor indictable offence or offences can be tried by a Magistrate sitting as the sole arbiter of fact, or 12 jurors who make a decision after hearing all of the evidence.

There are advantages and disadvantages of electing to be tried in either jurisdiction.  Advice in relation to the appropriate forum for a trial will be dependent on the specific circumstances of any matter. Crucially, there are cost implications depending on the jurisdiction you elect to be tried in.  Following a successful defence in the Magistrates Court, costs can be sought.  However, there are no such rights to recover costs following a District Court trial.

Major indictable offences

Major indictable offences are the most serious category of offences before the Court.

Defendants charged with a major indictable offence or offences are subject to a process called the “Committal” process, which first commences in the Magistrates Court.  Several hearings are generally conducted before a defendant is required to answer the charge; that is, before a defendant is required to plead guilty or not guilty.

In certain circumstances, a defendant can apply to the Court for evidence to be taken during Committal proceedings.  A defendant can also make submissions to the Court that there is not sufficient evidence to put the defendant on trial for any offence.

Defendants who plead guilty at the answer charge hearing are subsequently committed to a superior Court (either the District Court or the Supreme Court, depending on the charge) for the sentencing process.

Defendants who plead not guilty at the answer charge hearing are subsequently committed to a superior Court to stand trial, provided that the Magistrates Court finds that a case to answer has been established.

A defendant committed to the District Court or Supreme Court for trial has the right to waive their right to trial by jury and elect to be tried by a Judge sitting alone.   The decision to elect to be tried by a Judge sitting alone is one which must be considered very carefully.  It is therefore very important that defendants charged with major indictable offences are advised in relation to their own unique set of circumstances.

TGB Lawyers is here for you

The outline of the different classifications of offence in South Australia and what it might mean for you is by no means exhaustive.  You should always seek legal advice at an early stage of your criminal matter, to ensure you understand important information that relates to you.

TGB’s team of criminal lawyers can provide you with advice and representation at all stages of your criminal matter. Contact the author, Hanna Rogers or any member of our team today on (08) 8212 1077 to discuss your matter and how we can work towards reaching the best outcome for you.

Criminal law is legislated at a State or Territory level. Our criminal law team also has a thorough understanding of the criminal offence framework in the other jurisdictions in which we operate: WA, QLD and the NT.