INFORMATION
The criminal process
Which courts hear criminal disputes in South Australia
The courts that try offences against the criminal law are the Supreme Court of South Australia (the Supreme Court), the District Court of South Australia (the District Court), and the Magistrates Court of South Australia (the Magistrates Court). The Supreme Court hears trials for murder, treason and other very serious crimes. Trials for other serious crimes are heard in the District Court and trials of summary (minor) offences are heard in the Magistrates Court.
If people disagree with the decision of a court, they can appeal to a higher court to attempt to have the decision reversed. The Supreme Court hears appeals from decisions made in the Magistrates Court. Appeals from convictions in both the District Court and in the Supreme Court are heard in the Court of Criminal Appeal, which is comprised of three judges of the Supreme Court. (Supreme Court cases only have one judge but extra judges are needed to review cases sent to the Court of Criminal Appeal.)
Two classes of offences
Criminal conduct is divided into two classes, summary offences and indictable offences.
Summary offences are the less serious kinds of criminal offending. Summary offences include parking and traffic offences, offensive or indecent behaviour, minor assaults against the person, shoplifting and minor offences against property. A person is charged with a summary offence by a document called a “complaint”. A complaint states the offence with which the person is charged. The complaint will also include a summons requiring the person charged to attend a named Magistrates Court on a specified date.
Indictable offences are the more serious kinds of offences. They include more serious assaults against the person, almost all forms of sexual assaults ranging from indecent assault to rape; criminal trespass; robbery; fraud and other serious financial crimes; and other crimes against property such as arson. Indictable offences are divided into minor indictable offences and major indictable offences.
Proceedings in respect of indictable offences are more complex than for summary offences. Where a defendant pleads guilty (except for treason or murder), with permission of the Director of Public Prosecutions (DPP) and defendant, the matter can be determined (i.e. a sentence be given without trial) in the Magistrate’s Court. If the defendant pleads not guilty, the matter must be sent to a trial.
Minor indictable offences are heard in the Magistrates Court unless the defendant chooses to have the matter heard by a judge and jury in the District Court. From July 2013, The Magistrate’s Court can impose a maximum term of imprisonment of up to five years for a first offence and ten years for multiple offences.
Trials for major indictable offences are generally heard in the District Court or the Supreme Court. Most sexual offences are major indictable offences and are usually heard in the District Court but, on rare occasions, are heard in the Supreme Court. A person is charged with an indictable offence by a document called an “information”.
Minor indictable offences which are jointly charged with major indictable offences are also heard in the District Court or Supreme Court.
Police Investigation and Arrest
There is often a great deal of work to do before a person even gets to a court. In the ordinary course of events, police will be informed of allegations that a person has committed a crime. Police will then investigate those allegations. The investigation will show whether there is sufficient evidence to arrest and charge the defendant.
If police believe there is sufficient evidence to convict the defendant, they will arrest and charge the defendant. If they are not satisfied there is sufficient evidence, the matter will proceed no further, or might be filed in case further evidence should come to light.
After a defendant has been arrested and charged, police might wish to conduct further investigations to ascertain whether there is more evidence to prove the case against them. If those investigations establish other offending, the defendant will be charged with those offences too.
Bail
Once police have charged the defendant, they will generally release him or her on bail. This means the defendant does not have to wait in gaol before going to court. If they are not given bail, they must wait in gaol.
If a defendant is released on bail, it will be a condition of the bail that s/he is required to attend at a Magistrates Court to plead guilty or not guilty. Additional conditions of bail may be imposed such as restrictions upon their movement, or orders that the defendant not contact the victim. There are also mandatory firearms conditions attached to every grant of bail.
If the police decide not to release the defendant on bail, the defendant must be taken to a Magistrates Court as soon as possible where they may apply for bail. Generally speaking, bail will be granted but with conditions restricting the defendant’s movements. Those conditions would be similar to the kind of conditions on which the police would have released the defendant when granting police bail.
If the defendant is released on bail s/he will usually appear in the Magistrates Court a few weeks later. All cases begin the court process in the Magistrates Court
Trials of Summary and Minor Indictable Offences
Trials of summary and minor indictable offences are conducted in the Magistrates Court. When the matter is called on, the defendant may either plead guilty or not guilty. If s/he pleads guilty, the magistrate will then determine the appropriate penalty.
If the defendant pleads not guilty, the matter will be adjourned to a pre-trial conference on another date. If at the pre-trail conference, parties are not able to resolve the matter there will be a further adjournment for a trial on another date. On this date the matter will be tried by a magistrate sitting alone. The magistrate will decide whether the defendant is guilty or not guilty. If the magistrate finds the defendant guilty, the magistrate will then determine the appropriate penalty.
Trained police prosecutors usually prosecute these trials on behalf of the State. The defendants either defend themselves, or appoint a solicitor to run the defence..
The Committal Process
Prosecution of a person charged with a major indictable offence also starts in the Magistrates Court. In these cases, however, the preliminary examination, (often called a “committal hearing) is to determine whether there is sufficient evidence to put the defendant on trial in a higher court.
The process begins with the defendant’s first appearance in the Magistrates Court, where the magistrate will fix a date for the prosecution to give the defendant all the statements of the prosecution witnesses. These statements are called “declarations” and the date they must be given to the defendant is called the “declarations date”.
Four weeks after the declarations date, by which time the defendant has had a chance to study the witness statements, the magistrate will set a date for the defendant to answer the charges. That date is referred to as the “answer charge date”.
The prosecution also studies the evidence during this time. In particular, the Director of Public Prosecutions, or one of the lawyers in his office, will consider whether there is sufficient evidence to convict the defendant. If the Director of Public Prosecutions comes to the conclusion that there is insufficient to convict the defendant, the prosecution will not proceed.
If the prosecution does proceed, the defendant attends the Magistrates Court on the answer charge date, and is asked if he or she pleads guilty or not guilty. If he or she pleads guilty, he or she will be committed for sentence in the District Court or the Supreme Court.
If the defendant pleads not guilty, the prosecution has the task of satisfying the magistrate that it has sufficient evidence to put the defendant on trial for the offence named in the information. The magistrate must consider the evidence that the prosecution intends to lead (present) and decide whether it is may be sufficient to prove the offence. If the magistrate reaches that conclusion, the defendant will be committed for trial.
If the magistrate is not satisfied that the evidence is sufficient to put the defendant on trial, he or she will reject the information and the defendant is free to go. That will usually be the end of the case.
[NB: The Director of Public Prosecutions (DPP) has the power to file an ‘ex officio’ information. That enables the DPP to continue with the matter even though the magistrate has found that the defendant has no case to answer. The DPP will not make such a decision lightly. It will be made if the DPP believes that the magistrate erred or if fresh evidence has since become available and that evidence would have led to the defendant being committed for trial if that evidence had been before the magistrate].
The Arraignment
A defendant who has been committed for trial or sentence is remanded, either in custody or on bail, to appear before the District Court or the Supreme Court to be formally charged with that offence, that is to say, to be ‘arraigned’. The arraignment day will be four weeks after the committal hearing. The defendant must attend in person to be arraigned. The charge stated on the information is read out and the defendant is asked to plead guilty or not guilty.
If the defendant pleads guilty, the matter will usually be adjourned to a later date for submissions to be made as to the type and severity of sentence to be ordered against the defendant. The defendant will be remanded either in custody or on bail until the date of the adjourned hearing.
Defendants who plead not guilty are remanded for trial, either in custody or on bail. They will be required to attend a directions hearing which is held four to six weeks after the date of the arraignment.
Directions Hearings
Directions hearings are held for the purpose of resolving all the procedural matters that must be attended to before the trial begins. Directions hearings also give the judge the opportunity to explore with the prosecution and the defendant whether the matter can be resolved without having to go to trial. If not, a trial date will be set. The judge will also hear any preliminary applications, for example, an application by the defendant to be tried by a judge alone.
The Trial
The next step is the actual trial. The trial will usually take place before a judge and jury. However, in certain circumstances, the defendant may apply to be tried by a judge sitting alone without a jury.
Before the trial actually begins, the defendant is again asked whether he pleads guilty or not guilty. Although the defendant was asked whether s/he pleaded guilty or not guilty at the arraignment, he is again asked that question because the defendant may in the interim have decided to change his plea. If the defendant pleads guilty, the judge will proceed to sentence him.
If the defendant still pleads not guilty, a jury is empanelled and the trial begins. The prosecution presents its case first. The prosecutor will open the case by giving a brief outline of the prosecution case. The witnesses are then called. They are asked questions by the prosecution and then by the defendant. That process is called examination and cross-examination of the witnesses. After each witness has been examined and cross-examined, the prosecution may ask questions to clarify matters that arise in cross-examination, a process called re-examination. After the prosecution has called its evidence, it closes its case. The defendant may then open his/her case and call evidence or decide not to do so. That is entirely for the defendant to decide. The defendant has the right to remain silent and does not have to give evidence. If the defendant calls evidence, each defence witness, including the defendant, will be examined and cross-examined and perhaps re-examined. Once the defendant has called all her witnesses, she closes her case. In strictly limited circumstances, the prosecution might be permitted to call witnesses in reply.
As a general rule, a trial is open to the public. Open justice is one of the most fundamental principles of our legal system.
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view”. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hall-mark of judicial as distinct from administrative procedure”.
Russell v Russell (1976) 134 CLR 495, 520.
On rare occasions the court might be closed to the public. The court might make an order excluding the public from the court if the court considers it desirable in the interests of the administration of justice or in order to prevent hardship or embarrassment to any person. The only persons then permitted to be in the courtroom will be the judge and necessary officers of the court, the jury, the prosecution and the defendant and his legal advisers and the witness.
There is one occasion when the court must make an order clearing the courtroom. That occasion is when a child who is the alleged victim of a sexual offence is about to give evidence. The judge will then make an order clearing the court while the child is giving evidence. The court will then be cleared of all persons except the judge and necessary officers of the court, the jury, the prosecution and the defendant and his legal advisers and the witness. In addition, a person may be present at the request of, or with the consent of, a child to provide emotional support for the child as well as any other person who, in the opinion of the court, should be allowed to be present. Thus, the child could have one or both parents present in the courtroom while giving evidence.