This chapter provides a basic guide to the courts of criminal jurisdiction in South Australia: the ways in which court proceedings are commenced, the categories of State and Commonwealth offences, and the essential elements of an offence.
The following courts have jurisdiction to hear and determine criminal matters:
Rules of Court
From 29 August 2022, the Joint Criminal Rules 2022 (SA) ('the Joint Criminal Rules') apply to all criminal proceedings in the [r 1.6]:
However, some rules apply to Lower Courts, Higher Courts, or a specified Court only.
A criminal proceeding is defined as [r 2.1]:
A criminal proceeding does not include an appellate proceeding. Appellate proceedings are dealt with and defined separately under Chapter 9 of the Rules.
Electronic court management system: CourtSA Online Portal
The Joint Criminal Rules establish an electronic court management system to perform the Principal Registrar’s functions (referred to in rule 16.2) and for use by court officers and external users [r 22.1(1)]. The electronic system may enable [r 22.1(2)]:
The Principal Registrar may determine that it is mandatory that all or specified classes of documents lodged for filing by all or specified classes of persons be filed electronically [r 22.1(3)]. The Principal Registrar may, however, waive the requirement for electronic filing as they think fit [r 22.1(5)].
Filing original affidavit evidence
The original of an affidavit, which is in hard copy form and is uploaded electronically, must be uploaded by scanning the original and not by scanning a copy [r 22.3(2)]. The person who uploads the affidavit must also retain possession of the original affidavit until the proceeding is finalised and any appeal period has expired [r 22.3(3)]. The original must be retained by the filing party, even if that party files the original with the Court, for the Court to upload to the electronic system [r 28.10].
Documents filed with or issued by the Court in electronic form, or which are converted by the Court into electronic form, represent the official record [r 22.4(1)].
Issuing of documents by Court
Documents are issued by the Court when [r 31.1]:
It is sufficient to serve a version of a document downloaded from the electronic system or in the same terms as the original in the electronic system [r 31.1(2)]. The electronic system provides a further method of service via the CourtSA Online Portal if the document is contained in the case on the electronic system, is accessible to the other party or their lawyer and the party serving the document sends the party to be served or their lawyer an email or text message identifying the case number, the existence of the document in the case and the title, date and FDN of the document [r 36.6]. Only the email address or mobile phone number provided specifically for the purpose of communications in relation to the case can be used [r 33.6(1)(d)].
The Criminal Division of the Magistrates Court is a court of summary jurisdiction [see Magistrates Court Act 1991 s 7(2)] and is the originating court for matters which are to be heard in the superior courts. The Court has jurisdiction to:
A magistrate cannot sentence a person to a penalty of imprisonment of more than five years for one offence or ten years for more than one offence, and cannot impose a fine exceeding $150 000 (or a fine exceeding $300 000 for an offence under the Work Health and Safety Act 2012 (SA)), regardless of whether the offence is summary or indictable [see Magistrates Court Act 1991 (SA) ss 9(4)(a), 9(4)(b), and 9(5)].
A magistrate may remit the imposition of a sentence to a superior court if the magistrate is of the opinion that the sentence imposed should exceed the above limits [see Magistrates Court Act 1991 (SA) s 9(7)] or where the Magistrate is of the that the interests of justice require committal to a superior court [see Criminal Procedure Act 1921 (SA) s 116(1)].
If a person pleads not guilty to an offence charged in the Magistrates Court, but guilty to an alternative offence or an attempt to commit the offence charged (and the plea of guilty is accepted by the prosecution) then the Court may sentence the person. Where the alternative offence, or attempted offence is a major indictable offence, the Court can either commit the person to a higher court for sentence, or sentence the person in accordance with section 116 of the Criminal Procedure Act 1921 (SA) [see Criminal Procedure Act 1921 (SA) s 115A].
The Petty Sessions Division of the Magistrates Court [see Magistrates Court Act 1991 (SA) s 7(1)(e)] has jurisdiction to:
The Magistrates Court sits at the following metropolitan locations:
Adelaide Magistrates Court (AMC)
260-280 Victoria Square
Adelaide SA 5000
Telephone: 61 8 8204 2444
Facsimile: 61 8 8204 0670
Christies Beach Magistrates Court (CBMC)
96 Dyson Road
Christies Beach SA 5165
Telephone: 61 8 8204 2444
Facsimile: 61 8 8329 5947
Elizabeth Magistrates Court (EMC)
15 Frobisher Road
Elizabeth SA 5112
Telephone: 61 8 8204 2444
Facsimile: 61 8 8207 9231
Port Adelaide Magistrates Court (PAMC)
260 St Vincent Street
Port Adelaide South Australia 5015
Telephone: 61 8 8204 2444
Facsimile: 61 8 8207 6233
The Magistrates Court also sits at a number of country locations. For more information regarding country sitting locations visit the Courts Administration Authority website at: https://www.courts.sa.gov.au/our-courts/
The Criminal Division of the District Court is the principal indictable trial court in South Australia [see District Court Act 1991 s 7(b)]. The District Court has jurisdiction to hear all indictable matters, except for murder, treason, and related offences [see District Court Act s 9(1); Criminal Procedure Act 1921 (SA) s 116(1) for committal for sentence; Criminal Procedure Act 1921 (SA) s 117 for committal for trial].
The District Court has jurisdiction to hear summary offence(s) when alleged on information in conjunction with indictable offence(s) [see District Court Act 1991 s 9(3)]. The District Court can remit summary offence(s) to the Magistrates Court to be dealt with as if the summary offence(s) originated on complaint [see Criminal Procedure Act 1921 (SA) s 102(4)]. The Court may order matters be heard in the Supreme Court for trial or sentence [see Criminal Procedure Act 1921 (SA) s 118(3)].
District Court criminal trials for state offences are conducted before a Judge sitting alone or with a jury [see District Court Act 1991ss 20(1) and 20(2); Juries Act 1927 s 7].
The Supreme Court is the superior court of the State with original and appellate jurisdiction [see Supreme Court Act 1935 s 17]. The court hears the most serious criminal matters, including murder, treason and related offences [see Criminal Procedure Act 1921 (SA) s 116 for committal for sentence; s 117 for committal for trial; s 117(3)(a)(ii) for major indictable offences of unusual gravity; s 117(3)(a)(iii) for offences involving unusually difficult questions of law or fact].
The Supreme Court can remit summary offence(s) to the Magistrates Court to be dealt with in the same manner as if the summary offence(s) originated on complaint [see Criminal Procedure Act 1921 s 102(4); Magistrates Court Act 1991 s 19(2a)]. The Supreme Court can order matters be listed in the District Court for trial or sentence, and may alternatively call matters listed in the District Court to the Supreme Court for trial or sentence [see Criminal Procedure Act 1921 (SA) ss 118(1) and 118(2)].
Supreme Court criminal trials for state offences are conducted before a Judge sitting alone or with a jury [see Juries Act 1927 s 7].
Court of Appeal
The Court of Appeal hears appeals arising from proceedings in the District Court, and single Judges of the Supreme Court [see District Court Act 1991s 43; Supreme Court Act 1935 s 50]. Most appeals from the Magistrates Court are heard by a single Judge of the Supreme Court in its General Division [see Magistrates Court Act 1991 s 42(2)]. Appeals against decisions from the District Court or the Supreme Court are determined by the Court of Appeal of the Supreme Court [see Supreme Court Act 1935 s 48; District Court Act 1991 s 43(2)(c)].
The Court of Appeal would ordinarily be comprised of 3 judges [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 [r 192.3(b)-(c)].
Pursuant to rule 192.4, a single Judge may hear applications which are interlocutory or ancillary to an appeal to the Court of Appeal under rule 201.1, such as [r 201.1]:
Matters can also be referred to the Court of Appeal division for consideration of questions of law [see Magistrates Court Act 1991 s 43; District Court Act 1991 s 44(2); Supreme Court Act 1935 s 49].
The Supreme Court regularly sits in Port Augusta and Mount Gambier. When it does so, it holds a call over at the beginning of the sitting period to determine which cases are for mention or plea and which are proceeding to trial and when.
Contempt of Court
Contempt of court is the failure to obey a court order or an act which shows a disregard for the authority of the court or judge. For example, a failure to comply with a subpoena which as been properly addressed and served on a person [see eg. Joint Criminal Rules 2022 (SA) r 127.7 Failure to comply with summons to witness - contempt of court]. This is a common law offence, and procedure surrounding written charges, warrants etc can be found in the Joint Criminal Rules 2022 (SA) [see eg. Part 12 Contempt - rr 48.1-51.4].
A person in contempt may face a fine, or imprisonment, or both.
Disrespectful Conduct in Court
A person who is a party to proceedings in court must not intentionally engage in disrespectful conduct before the court during the proceedings.
Maximum penalty: $1250 or 3 months imprisonment
[s 60(1) Summary Offences Act 1953 (SA)]
Disrespectful conduct includes:
A person must first be warned by the court that the person's conduct may result in a charge. [s 60(2)]
It is a defence to section 60(1) if the conduct of the person charged was due to a cognitive impairment (including mental illness) or a physical disability. [s 60(3)]
This section does not apply to children in the Youth Court. [s 60(8)]
Generally, a summons is a document notifying a person of a court hearing on a specified date. In relation to a defendant, it is a summons to attend court to answer the charge as contained in an Information and filed with the Court by prosecution [Criminal Procedure Act 1921 (SA) ss 22 and 57; Joint Criminal Rules 2022 (SA) r 62.1]. The hearing date selected on the summons will be in the normal course listed several weeks after the Information is filed [r 65.1(2)].
The Form 2 Information and Summons Lower Courts must be served as a soon as practicable, and in any event at least 7 days before the first hearing date. Unless the Court otherwise orders, service of the Information must be effected by original service. [r 62.4(6)-(7)]. For the definition of original service, see rule 33.7 of the Joint Criminal Rules 2022 (SA), as original service now includes portal service using Court SA. The service requirements outlined in the Joint Criminal Rules 2022 (SA) should be read in conjunction with section 27 of the Criminal Procedure Act 1921 (SA).
Failure to attend court on the date of the hearing may result in the matter(s) proceeding in the defendant’s absence or the issue of a warrant for their arrest [see Criminal Procedure Act 1921 (SA) ss 58 and 103; s 62A for failure to answer bail; s 62BA for failure to lodge written plea of guilty or to appear].
A summons is usually served by a police officer or an officer or employee of a public authority, who either gives it personally to the person to whom it is directed or leaves it with someone else who appears to be aged 16 years and over at the person's last or most usual address [Criminal Procedure Act 1921 (SA) s 27]. A summons can also be served [s 27]:
If serving a summons via electronic means, it must be ascertained that the person receiving the summons has the means to download/access and (if required) print the document(s) [Criminal Procedure Act 1921 (SA) s 27(2)].
A summons to a debtor may be issued for unpaid fines and requires the debtor to attend the Fines Payment Unit in a local Magistrates Court (see Expiable offences). A witness or the holder of documents needed as evidence for a trial may receive a summons (a subpoena) to either attend the court registry (to hand over documents) or to appear to give evidence to the Court on a specified date [see Magistrates Court Act 1991 (SA) s 20; Joint Criminal Rules 2022 (SA); District Court Act 1991 (SA) ss 25 and 26; Supreme Court Act 1935 (SA) s 35].
The forms used pursuant to the Joint Criminal Rules 2022 (SA) are available on the Courts Administration Authority website
An Information is a document outlining the details of the offence as charged [Criminal Procedure Act 1921 (SA) s 100] and may include summary, minor indictable and major indictable offence(s) [s 102(2)]. The Information must state the category of offence for each charge and whether it is a major indictable, minor indictable or summary offence. A person can be charged for a number of offence(s) on the same information so long as they relate to the same circumstances or a series of circumstances of similar character [Criminal Procedure Act 1921 (SA) s 102(1)].
The Information must be filed with the Court by prosecution as soon as possible after it is made [Criminal Procedure Act 1921 (SA) s 101(3)]. Court proceedings commence upon the filing of the Information in court (for matters committed to the District or Supreme Court for trial) [see Major indictable offences]. The accused must be provided with a copy of the Form 1 Information Lower Courts as soon as practicable and in any event at least 7 days before the first hearing date [Criminal Procedure Act 1921 (SA) s 105; Joint Criminal Rules 2022 (SA) r 62.4(6)].
An informant must file with the Information or immediately upon the Information being filed at Court a summary of the allegations in the prescribed form in respect of each count (Form 9A), an antecedent report in the prescribed form providing particulars of any previous convictions of each defendant or youth (Form 9B), and if the defendant or youth has been granted bail by a police officer under s 5(1)(e) of the Bail Act, the bail agreement. See further rule 62.3 of the Joint Criminal Rules 2022 (SA). The informant may file a Form 9C Combined Summary of Allegations and Antecedent Report, and instead of filing a bail agreement may provide to the Court data in an acceptable format identifying the date and conditions of the bail agreement.
A notice in the prescribed form appropriate to the highest charge category and Court must be served with the Information [r 62.4(2)].
Both the State and the Commonwealth prosecute people for criminal offences. In practice, most matters before the courts are State offences.
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 Legislation Interpretation Act 2021 (SA) s 54 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.
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:
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 |
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| 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 |
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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)].
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:
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)].
The Criminal Procedure Act 1921 (SA) s 5 defines minor indictable offences as:
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 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 - 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:
This consideration should always be made with the assistance of senior legal advice.
| ELECTION FOR MATTER TO BE HEARD IN THE DISTRICT COURT |
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| 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].
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 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]. The Court expects that a charge determination under section 106(1) of the Criminal Procedure Act 1921 (SA) will generally have been made by the second hearing. The informant must notify the Court and each defendant in writing whether a charge determination has or has not been made 2 days before the second hearing [Joint Criminal Rules 2022 (SA) r 84.1].
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 [Criminal Procedure Act 1921 (SA) s 113(2)(c), Joint Criminal Rules 2022 (SA) r 71.1]. 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:
| PRE-COMMITTAL APPEARANCES |
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| 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.
It is unlikely that a duty solicitor will appear on a Commonwealth matter, other than to conduct a bail application. However, for the sake of completeness, a basic discussion of Commonwealth offences follows. It is worth noting that the Commonwealth can lay State charges and State law applies in these cases. Many Commonwealth statutes contain criminal offences. A large percentage of offences before the courts is social security fraud. The most commonly encountered Commonwealth offences are found in the following Acts:
Commonwealth law is different from State law in that there are only two categories of offences; summary and indictable offences. If the matter is to be dealt with summarily then the same procedure as for any State matter applies [see Judiciary Act 1903 (Cth) s 68]. Summary offences are those involving a maximum penalty of twelve months or less or no penalty of imprisonment [see Crimes Act 1914 (Cth) s 4H].
Indictable offences involve a penalty of more than 12 months imprisonment [see Crimes Act 1914 (Cth) s 4G]. Indictable offences with penalties of imprisonment not exceeding 10 years may be dealt with summarily or either party can elect to have the matter indicted, and the committal process commences [see Crimes Act 1914 (Cth) s 4J]. When matters are indicted to a higher court for trial, the trial must be by jury [see Commonwealth of Australia Constitution Act (Cth) s 80].
The Commonwealth Director of Public Prosecutions (DPP) prosecutes a wide range of offences on behalf of the Commonwealth. Whilst the DPP prosecutes the bulk of Commonwealth offences, it does not deal with all such offences.
| BAIL APPLICATIONS FOR COMMONWEALTH OFFENCES |
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| A duty solicitor's first acquaintance with a Commonwealth matter is likely to be in a bail application. Here the State Bail Act 1985 applies as it would to any offender. The issue of whether the matter is to be indicted or not may be raised at this point. You may need to seek some advice from a senior practitioner. |
Time limits
There is no time limit for the commencement of proceedings for offences with penalties of imprisonment of more than six months. Proceedings must commence for all other offences within twelve months of the date of the alleged offence [see Crimes Act 1914 (Cth) s 15B].
The prosecution has the burden of establishing all elements of an offence in order to prove a person has committed the offence. The majority of offences have two elements: mental (mens rea) and physical (actus reus). Discussion of such a broad and complex area of the criminal law is best left to the textbooks.
Strict liability offences are an exception to the rule that the prosecution must establish the mental element inherent in criminal offences. These offences have no mental element and only require the occurrence of the prohibited conduct for an offence to occur. Strict liability offences are usually minor offences such as speeding, driving an unregistered vehicle, or failing to wear a seatbelt. Such offences are often expiable.
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