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State offences

State Legislation

Offences arising pursuant to the Summary Offences Act 1953 (SA) and the Criminal Law Consolidation Act 1935 (SA) are the most commonly encountered offences [see chapter Penalty Summaries]. Other State legislation proscribing frequently encountered offences includes:

[see also Acts Interpretation Act 1915 (SA) s 28A for penalties and expiation fees; Magistrates Court Act 1991 (SA) Appendix - Divisional penalties and expiation fees].

For further information, the Law Handbook has an detailed chapter on Criminal Law and Traffic Offences which details the most common crimes and the law around them.

Expiable Offences

Many minor offences referred to in State legislation can be dealt with by expiation notice (on-the-spot fine) [see Expiation of Offences Act 1996 (SA) s 5(1)]. An expiation notice can be issued by the police or local council for an expiable offence instead of commencing proceedings in court. [see Expiation of Offences Act 1996 (SA) s 6(3)]. Expiation notices can be directly served upon the person at the time of the alleged offence, issued by post (for example, for a camera offence), or the notice can be attached to the vehicle (for example, for a parking fine) [see Expiation of Offences Act 1996 (SA) s 6(j)].

The alleged offender has 28 days from (and including) the date of issue of the expiation notice to pay the expiation fee [see Expiation of Offences Act 1996 (SA) s 6(1)(c)]. The offence is expiated upon payment of the fee, making the alleged offender no longer liable for prosecution for that offence [see s 15]. There is no court appearance and no conviction recorded. Payment of the expiation fee is not an admission of guilt or civil liability and it cannot be considered evidence of such [see s 15(4)]. Furthermore, the expiation of an offence cannot be referred to in any future reports assisting a court to determine sentence for any other offence [see s 15(4)(c)]. Any item seized in connection with the alleged offence is forfeited to the Crown upon expiation of the offence [see s 15(5)].

The alleged offender may elect to be prosecuted for the offence, in which case proceedings in court will be commenced [see Expiation of Offences Act 1996 (SA) ss 6(k) and 8].

The Fines Enforcement and Recovery Unit previously sat within the Magistrates Court and was operated by the Courts Administration Authority. Since 2014, the Fines Enforcement and Recovery Unit is a separate body and is not co-located within the Magistrates Court. Any queries relating to the payment of fines or pecuniary debts should be directed to the Fines Enforcement and Recovery Unit directly. Contact details are available via their website here.

The Fines Enforcement and Recovery Unit collects and enforces the payment of both overdue expiation fees, and other pecuniary debts [see Expiation of Offences Act 1996 (SA) s 11A for warning notices; s 13 for enforcement procedures; Fines Enforcement and Debt Recovery Act 2017 (SA) s 20 for arrangements as to manner and time of payment; section 22 for enforcement determinations]. The Chief Recovery Officer may agree for the expiation fee be paid in instalments, or extend the time to pay (not exceeding 6 months) in situations where the applicant (or dependants) would suffer hardship should he or she have to pay the expiation fee in full [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 20].

The Chief Recovery Officer can also agree for the person to undertake a period of community service or complete a treatment program in lieu of paying the expiation fee, where the Chief Recovery Officer is satisfied that the person does not have the ability to pay the fee without them or their dependants suffering hardship [see Fines Enforcement and Debt Recovery Act 2017 (SA) ss 20(6)(f), 20(7), and 20(8)].

The Fines Enforcement and Recovery Unit is also responsible for the collection of 'pecuniary debts' relating to other penalties such as court imposed fines, victims of crime levies, and compensation orders. These penalties must be paid within 28 days from (and including) the day of the court order [see Fines Enforcement and Debt Recovery Act 2017 (SA) section 9; section 11 for payment within 28 days; section 12 for pecuniary sums; section 18 for reminder notices; and section 19 for enforcement action].

The Chief Recovery Officer has a wide range of powers to deal with people who default on payment of pecuniary sums, including:

  • seizure and sale of assets [Fines Enforcement and Debt Recovery Act 2017 (SA) s 36];
  • garnishing of wages or bank accounts [s 37];
  • suspension of driver's licence [s 38];
  • restriction on transacting with the Registrar of Motor Vehicles [s 39];
  • clamping or impounding of vehicles [s 41];
  • disposal of impounded vehicle if uncollected [s 42];
  • seizure of number plates of vehicle [s 43];
  • publication of names of debtors subject to enforcement action [s 44].

The Chief Recovery Officer has the ability to seek court orders requiring you to undertake community service [s 46(1)(a)] or a treatment program [s 46(1)(b)] if other enforcement processes have failed or are inappropriate.

SUMMONS TO DEBTOR
A duty solicitor will receive many enquiries from people who have received communication from the Fines Enforcement and Recovery Unit in relation to a pecuniary debt or expiation notice. The duty solicitor simply needs to direct them contact the Unit, which as of February 2014 sits outside the Magistrates Court and is operated independently from the courts.

The duty solicitor may also receive enquiries from people referred to court for reconsideration of penalty due to their lack of capacity to pay the debt. The duty solicitor would not normally appear on these matters unless they have time to assist a particularly vulnerable person who is not able to represent themselves.
INSTRUCTIONS

It is important that the duty solicitor takes instructions in relation to the person’s ability to comply with a potential community service order or licence disqualification as well as providing clear advice as to the potential for imprisonment should that person fail to complete a community service order or drive whilst under disqualification.

Time limits

An expiation notice must be issued within 6 months of the day of the alleged offence [see Expiation of Offences Act 1996 (SA) s 6(1)(e)]. An expiation notice cannot be issued once prosecution for the offence commences [see s 6(1)(f)].

Where an expiation notice is not issued to a person, court proceedings must commence within 6 months of the offence [see Summary Procedure Act 1921 (SA) s 52(1)(a)(ii)]. In circumstances where an expiation notice has been given to a person, proceedings must commence within 6 months of the expiry of the expiation period [see Summary Procedure Act 1921 (SA) s 52(1)(a)(i)].

Summary offences

The Criminal Procedure Act 1921 (SA) s 5(1) sets out the categories of State offences. These fall into three groups:

In accordance with the Criminal Procedure Act 1921 (SA) , summary offences include:

  • offences not punishable by imprisonment [see s 5(2)(a)];

  • offences with a maximum penalty of imprisonment of two years or less [see s 5(2)(b)];

  • property offences under part 4 of the Criminal Law Consolidation Act 1935 (SA) involving $2 500 or less (including where the maximum imprisonment is more than two years) but not arson, causing a bushfire, offences of violence, or where the offence is part of a series of similar offences involving more than $2 500 in total [see Criminal Procedure Act 1921 (SA) s 5(2)(ba); Criminal Procedure Act 1921 (SA) s 4(1) for definition of offence of violence; Criminal Law Consolidation Act 1935 (SA) s 85 for arson and other property damage offences; Criminal Law Consolidation Act 1935 (SA) s 85B for causing a bushfire; Criminal Law Consolidation Act 1935 (SA) s 85A for recklessly endangering property; Criminal Law Consolidation Act 1935 (SA) s 86 for possession of an object to damage property; and Criminal Law Consolidation Act 1935 (SA)s 86A for illegal use of a motor vehicle];

  • dishonesty offences under part 5 of the Criminal Law Consolidation Act 1935 (SA) involving $2 500 or less (including where maximum imprisonment is more than two years) but not robbery, offences of violence or where the offence is part of a series of similar offences involving more than $2 500 in total [see Criminal Procedure Act 1921 (SA) s 5(2)(c); Criminal Procedure Act 1921 (SA) s 4(1) for definition of offence of violence; Criminal Law Consolidation Act 1935 (SA) s 137 for robbery; Criminal Law Consolidation Act 1935 (SA) s 134 for theft and receiving; Criminal Law Consolidation Act 1935 (SA) s 138 for money laundering; Criminal Law Consolidation Act 1935 (SA) s 138A for dealing with property previously used or intended for use in a crime; Criminal Law Consolidation Act 1935 (SA) s 139 for deception; Criminal Law Consolidation Act 1935 (SA) s 140 for deceptive dealings with documents; Criminal Law Consolidation Act 1935 (SA) s 141 for deceptive dealings with machines; Criminal Law Consolidation Act 1935 (SA) s 142 for exploitation of a position of advantage; Criminal Law Consolidation Act 1935 (SA) s 143 for interference with merchandise; Criminal Law Consolidation Act 1935 (SA) s 144 for make off without payment]; and

  • offences which have a maximum fine less than $120 000 [see Criminal Procedure Act 1921 (SA) s 5(c); Acts Interpretation Act 1915 (SA) s 28A for penalties and expiation fees; Magistrates Court Act 1991 (SA) Appendix - Divisional penalties and expiation fees].

In effect this includes all of the offences found in the Summary Offences Act 1953 (SA), some offences in the Criminal Law Consolidation Act 1935 (SA), and offences in other South Australian Acts. The maximum penalties for offences in the Summary Offences Act 1953 vary from a maximum term of imprisonment of three months up to two years, and fines ranging between $250 and $100 000 [see Brief penalty summaries].

Summary offences are only heard in courts of summary jurisdiction, or Magistrates Courts. They are prosecuted by police prosecutors. Only Magistrates can hear contested (trial) summary offences and there is no right to trial by Judge or jury [see section on the Magistrates Court (above)].

Time limits

The police must lay a complaint for summary offence proceedings within two years of the date of the offence [see Criminal Procedure Act 1921 (SA) s 52(1)(b)].

Minor Indictable Offences

The Criminal Procedure Act 1921 (SA) s 5 defines minor indictable offences as:

  • offences where the maximum term of imprisonment does not exceed five years [see Criminal Procedure Act 1921 (SA) s 5(3)(a)ii)]; or
  • offences where the maximum term of imprisonment exceeds five years and are one of the following categories of offences:
  • threatened or actual interference with, damage to, or destruction of property where the loss resulting from commission of the offence does not exceed $30,000 [see Criminal Procedure Act 1921 (SA) ss 5(3)(a)(iii)(A) and s 5(3)(a)(iii)(AB); Criminal Law Consolidation Act 1935 (SA) s 85];
  • indecent assault (not committed against a child under the age of 14 years) [see Criminal Procedure Act 1921 (SA) s 5(3)(a)(iii)(C) and Criminal Law Consolidation Act 1935 (SA) s 56];
  • dishonesty offences under part 5 of the Criminal Law Consolidation Act 1935 (SA) involving $30 000 or less but not robbery, or an offence of violence [see Criminal Procedure Act 1921 (SA) s 5(3)(a)(iii)(D); Criminal Procedure Act 1921 (SA) s 4(1) for definition of offence of violence; Criminal Law Consolidation Act 1935 (SA) s 137 for robbery; Criminal Law Consolidation Act 1935 s 134 for theft and receiving; Criminal Law Consolidation Act 1935 (SA) s 138 for money laundering; Criminal Law Consolidation Act 1935 (SA) s 138A for dealing with property previously used or intended for use in a crime; Criminal Law Consolidation Act 1935 (SA) s 139 for deception; Criminal Law Consolidation Act 1935 (SA) s 140 for deceptive dealings with documents; Criminal Law Consolidation Act 1935 (SA) s 141 for deceptive dealings with machines; Criminal Law Consolidation Act 1935 (SA) s 142 for exploitation of position of advantage; Criminal Law Consolidation Act 1935 (SA) s 143 for interference with merchandise; Criminal Law Consolidation Act 1935 (SA) s 144 for make off without payment]; or
  • serious criminal trespass where the offence is a basic offence within the meaning of the Criminal Law Consolidation Act 1935 (SA) and the intended offence is an offence of dishonesty (not being an offence of violence) involving $30,000 or less or an offence of interference with, damage to or destruction of property involving $30 000 or less [see Criminal Procedure Act 1921 (SA) s 5(3)(a)(iii)(E); Criminal Law Consolidation Act 1935 (SA) ss 169(1) and 170(1)].

Proceedings for minor indictable offences are commenced in the Magistrates Court. Minor indictable offences can be tried and heard within summary jurisdiction or, if the defendant so elects and is pleading not guilty, can be tried before a Judge and jury in the District Court [see Criminal Procedure Act 1921 (SA) s 108(1); and District Court (above)].

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 [ss 108(1) and 117(1) Criminal Proceedure 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 - see Major Indictable Offences for information on this process.

If no election is made the case follows the procedures of the Magistrates Court for 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 senior legal advice.

ELECTION FOR MATTER TO BE HEARD IN THE DISTRICT COURT
As a duty solicitor you should not give advice to a person on the issue of whether they should elect to be tried by jury. This requires referral for more senior legal advice. The rationale for this is that Magistrates can only sentence up to two years imprisonment for each offence, whereas a Judge can invoke a higher penalty range. If a minor indictable offence is heard at trial in a superior court, and the accused found guilty, with the loss of a potential discount for an early guilty plea, coupled with the higher penalty for the cost of the trial (cost to the State), the associated risk of raising a minor indictable matter to a superior court for trial needs to be carefully considered.

Most minor indictable offences are referred to in the Criminal Law Consolidation Act 1935 (SA) . Some examples of minor indictable offences are listed below [see Brief penalty summaries].

  • Threaten to cause harm [see Criminal Law Consolidation Act 1935 (SA)s 19(2)];
  • Stalking [see Criminal Law Consolidation Act 1935 (SA) s 19AA];
  • Assault occasioning actual bodily harm [see Criminal Law Consolidation Act 1935 (SA) s 20(4)];
  • Act likely to cause harm [see Criminal Law Consolidation Act 1935 (SA) s 29(3)];
  • Indecent assault (victim over 14 years of age) [see Criminal Law Consolidation Act 1935 (SA) s 56];
  • Gross indecency [see Criminal Law Consolidation Act 1935 (SA) s 58];
  • Property damage (between $2 500 and $30 000) [see Criminal Law Consolidation Act 1935 (SA) s 85];
  • Illegal use/illegal interference (subsequent offence) [see Criminal Law Consolidation Act 1935 (SA) s 86A(1)];
  • Theft and receiving (between $2 500 and $30 000) [see Criminal Law Consolidation Act 1935 (SA) s 134];
  • Deception (between $2 500 and $30 000) [see Criminal Law Consolidation Act 1935 (SA) s 139];
  • Serious criminal trespass - non residential [see Criminal Law Consolidation Act 1935 (SA) s 169];
  • Serious criminal trespass - residential [see Criminal Law Consolidation Act 1935 (SA) s 170];
  • Attempting to pervert the course of justice [see Criminal Law Consolidation Act 1935 s 256];
  • Going equipped for the commission of an offence [Criminal Law Consolidation Act 1935 s 270C].

Time limits

There is no time limit to lay a charge for an indictable offence. This includes alleged sexual offences which occurred before December 1982.

Major indictable offences

Major indictable offences are those indictable offences which are not minor indictable offences [see Criminal Procedure Act 1921 (SA) ss 5(3)(b) and 4(1)]. Major indictable offences can only be dealt with, whatever the defendant is pleading, in the District or Supreme Court [see District Court and Supreme Court (above)]. These offences are first heard in the Magistrates Court through pre-committal hearing(s) and committal proceedings . The committal proceedings in the Magistrates Court are administrative.

The SAPOL Major Indictable Brief Unit will have carriage of major indictable matters until a charge determination is made by the Director of Public Prosecutions (DPP). At this time, the DPP will assume conduct of the matter. Until a charge determination is made, any offers of resolution or negotiation should be directed to the SAPOL Major Indictable Brief Unit.

During the pre-committal process, certain documents must be provided to the defendant (or their solicitor) prior to or on the first court appearance [see section 105 of the Criminal Procedure Act 1921 (SA)]. During the first court appearance, the police prosecutor will advise 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 material [Criminal Procedure Act 1921 (SA) s 106], and the matter will be adjourned to enable this to occur. The time it is adjourned for is at the discretion of the magistrate.

The preliminary brief is then provided to the Brief Assessment Unit within the DPP to enable them to make a charge determination i.e. to determine what charge(s) to proceed with [Criminal Procedure Act 1921 (SA) s 106].

Once a charge determination has been made, the matter can proceed through the committal process in the Magistrates Court and conduct of the matter is assumed by the DPP. The committal process involves both a committal appearance and an answer charge hearing .

If the defendant does not plead guilty during the committal appearance, the matter is adjourned to an answer charge hearing. The DPP is required to prepare a committal brief containing witness statements, evidentiary material, and all other relevant material to the charge(s) [Criminal Procedure Act 1921 (SA) s 111(1)].

During the answer charge hearing, the defendant must enter a plea. If they plead guilty, they will be committed for sentencing, either in the Magistrates Court (if certain conditions are met) or in a superior court [see Criminal Procedure Act 1921 (SA) s 113(2)(c) and Magistrates Court Rules 1992 r22A]. If they plead not guilty, they will be committed to a superior court for trial if the magistrate determines there is a 'case to answer' (a prima facie case) after considering all the relevant materials in the committal brief.

The time frames for the listing of hearings and provision of briefs through this process is a combination of discretionary (at the magistrate's discretion) and mandatory (mandated by legislation). The following is a guide for the time frames for hearings and provision of briefs:

  • the first court appearance is adjourned (for a period of time at the court's discretion) to allow for both (a) time for the police prosecutor to compile a preliminary brief and (b) at least an additional 4 weeks after being provided with the brief, for the DPP to consider the brief and make a charge determination;
  • the preliminary brief must be both filed in the Magistrates Court and provided to the defendant (or his solicitor) as soon as possible after it has been provided to the DPP;
  • if no plea is entered (or a not guilty plea is entered) during the committal appearance, the matter will be adjourned by a period set by the court to an answer charge hearing, taking into account the time it will take the DPP to complete a committal brief. The brief must be filed in the court and provided to he defendant at least 4 weeks prior to the answer charge hearing.
  • after the answer charge hearing, prosecution is given at least 6 weeks to complete the prosecution case statement. The defendant is given at least 4 weeks after receipt of the prosecution case statement to complete their case statement. When fixing an arraignment date, the magistrate must allow a period of at least 12 weeks between the answer charge hearing and the arraignment [s 120].
PRE-COMMITTAL APPEARANCES
This issue may arise during the course of a duty solicitor's appearance for an overnight arrest. If a duty solicitor appears on such a matter, the magistrate will adjourn the hearing for a period of time that they see fit based on the circumstances, taking into account how long the police prosecutor may need to prepare the preliminary brief A defendant in this position should get substantive advice or representation as soon as possible, taking into account the guilty plea sentencing reductions that apply for the first appearance onwards, at a reducing rate.

Persons charged with major indictable offences must be subject to bail conditions [see Criminal Procedure Act 1921 (SA) ss 104 and 120; and Bail Chapter].

See the Law Handbook for further information on the process of attending a superior Court.

State offences  :  Last Revised: Mon May 21st 2012