Criminal Procedure Act 1921

Police, prosecutors, defendants, and the criminal courts of South Australia. The Director of Public Prosecutions plays a central role in indictable matters (sections 103, 122, 146 to 147, 168). The Attorney-General has a discrete role in references on petition for mercy under section 173.

The Act also engages corporations as criminal defendants (section 177), children as defendants (sections 183 and 184), and victims who may be the subject of identity theft certificates (section 84) or beneficiaries of restraining orders (Division 7 of Part 4).

The Magistrates Court is engaged across summary and pre-committal procedure. The District Court and Supreme Court are engaged for trial of indictable offences (Division 6 of Part 5). The Court of Appeal is engaged on appeals (Part 6A).

A person prosecuting a summary offence must lay an information in compliance with section 49 within the limitation period in section 52. For an expiable offence, the proceedings must commence within six months of the expiry of the expiation period in the notice (where given) or within six months of the date of the alleged offence (where no notice was given). For non-expiable summary offences, the proceedings must commence within two years of the alleged offence date.

For indictable offences, the prosecution must comply with the pre-committal disclosure obligations in section 105. The prosecution must give the defendant the prescribed notice and the committal brief. Section 124 imposes obligations relating to expert evidence and evidence of alibi at the trial stage. Failure to comply with disclosure obligations can result in consequences under section 125.

The defendant has obligations once charged: section 110 requires committal appearance, section 111 deals with the committal brief, and section 112 deals with notices relating to committal proceedings.

For double jeopardy retrial, the prosecution must satisfy the strict thresholds in sections 146 and 147 and bring an application to the Court of Appeal within any time limit in the regulations.

For an appeal under Part 6A, the appellant must comply with the procedure including (in many cases) the leave requirement under section 157.

The Magistrates Court has powers under Part 4 to hear summary offences, to deal with pleas (sections 67 to 68), to convict or dismiss (sections 69 and 71), and to set aside or correct a conviction (sections 76A and 76B). It has powers to make non-association and place restriction orders (sections 78 to 83), to issue identity theft certificates (section 84), and to make various restraining orders (sections 99AA to 99K) including paedophile restraining orders, child protection restraining orders, and bushfire offender monitoring orders (section 99L).

The Magistrates Court has powers to issue summonses (section 57), arrest warrants (section 58), and to proceed in the absence of the defendant (sections 62, 62A, 62BA, 62C). The court has power to require expiable evidence and to take affidavit proof (section 28).

In committal proceedings, the Magistrates Court conducts the answer charge hearing (section 113), takes evidence (section 114), and evaluates evidence (section 115). The court can deal with pleas to alternative offences and attempts (Division 3A of Part 5).

The superior courts have powers under Division 6 of Part 5 to deal with objections to information (section 128), pleas (sections 129 to 132), determinations of law before empanelment (section 131), conviction on plea of guilty for an alternative offence (section 133), notice of evidence (section 134), and trial procedure (sections 136 to 139).

The Court of Appeal has the powers in section 158 (determination of appeals in ordinary cases), section 159 (second or subsequent appeals), section 160 (powers in special cases), section 162 (revesting and restitution of property on conviction), section 164 (enforcement of orders), and section 166 (supplemental powers).

The Act creates ancillary offences. Section 83 makes it an offence to contravene a non-association or place restriction order. Section 99I makes it an offence to contravene or fail to comply with a restraining order under Division 7. The penalties for these ancillary offences are in the relevant sections and the regulations.

The substantive penalties for summary and indictable offences sit in the substantive criminal Acts. The Act provides the procedure by which conviction and sentence are recorded (section 70) and enforced (section 188 deals with registration of orders for enforcement, and section 164 deals with enforcement of orders by the Court of Appeal).

Costs are dealt with in sections 189 to 189D. Section 189 deals with costs generally. Section 189A deals with costs payable by a defendant in certain criminal proceedings. Section 189B deals with costs in pre-committal and committal proceedings. Section 189C deals with costs against an informant in proceedings for a restraining order. Section 189D deals with costs where there has been delay or obstruction.

Forfeiture is abolished as a consequence of conviction by section 179. Defects in proceedings can be cured by verdict under section 178.

For a summary offence: an information is laid in the Magistrates Court (section 49) within the limitation period in section 52. A summons issues under section 57 or a warrant under section 58. The defendant is brought before the Magistrates Court (section 59). The hearing proceeds under Division 3, with conviction or dismissal under sections 69 and 71.

For an indictable offence: the prosecution lays an information (section 101). The defendant is given the pre-committal documents under section 105. Pre-committal hearings and subpoenas are issued under sections 105 to 107. Committal proceedings then run under Division 3 of Part 5. The committing magistrate may commit the defendant for trial or for sentence under section 116. Following committal, the procedure in Division 5 of Part 5 governs the path to trial, including arraignment (section 120), case statements (section 123), expert and alibi notice (section 124), and subpoenas (section 126).

Trial in the superior court runs under Division 6 of Part 5. The Court of Appeal hears any appeal under Part 6A.

Double jeopardy retrial under Part 6 has its own application procedure. The DPP applies to the Court of Appeal for an order under section 146 or 147; the application must be made within the time limited by the rules.

The substantive offences are in the Criminal Law Consolidation Act 1935 (SA), the Summary Offences Act 1953 (SA), the Controlled Substances Act 1984 (SA), the Road Traffic Act 1961 (SA), the Firearms Act 2015 (SA), and many others. Section 5 expressly references Part 4 of the Criminal Law Consolidation Act 1935 in classifying offences.

The Juries Act 1927 (SA) governs trial by jury. Section 7 of the Juries Act 1927 (SA) allows a defendant in the Supreme Court to elect a trial without jury, and the judge then performs the function otherwise performed by the jury. The High Court in Dansie v The Queen [2022] HCA 25 considered the role of section 158 of this Act on appeal from a judge-alone trial in the Supreme Court of South Australia.

The Sentencing Act 2017 (SA) governs sentencing on conviction.

The Bail Act 1985 (SA) governs bail before trial. Section 170 of this Act deals with admission of an appellant to bail and custody when attending the Court of Appeal.

The Director of Public Prosecutions Act 1991 (SA) governs the DPP's role under sections 103, 122, 146, and 147.

The Cross-Border Justice Act 2009 (SA) and reciprocal interstate enforcement arrangements interact through the Court of Appeal's powers and section 188 (registration of orders for enforcement).

The summary offence limitation period in section 52 is short and unforgiving. For an expiable offence, the six-month clock can run from the expiry of an expiation period rather than from the date of the offence. Practitioners must check both possibilities.

The classification line between summary and indictable offences in section 5 is not always intuitive. The two-year imprisonment threshold catches some unexpected offences. The prescribed-offence list in section 5(2)(ba) imports specific Criminal Law Consolidation Act offences and is monetary-value sensitive.

Pre-committal disclosure under section 105 is mandatory at or before the first appearance. Failure to comply has procedural consequences and can be raised by the defendant.

The Part 6 double jeopardy exceptions are narrow. "Fresh and compelling" evidence in section 142 requires that the evidence was not adduced at trial and could not have been with reasonable diligence, and that it is reliable, substantial, and highly probative. "Tainted" in section 143 requires acquittal-related conduct constituting an administration of justice offence.

The appeal regime in Part 6A has a leave/no-leave distinction in section 157. A convicted person has appeal as of right against conviction on a question of law alone, but other grounds need leave or a certificate of fitness from the trial court.

The DPP can appeal sentence under section 157(1)(a)(iii), but the DPP cannot appeal conviction in most circumstances. Defendants and the prosecution have asymmetric appeal rights.

Restraining orders under Division 7 of Part 4 are powerful tools that can be issued in the absence of the defendant (section 99C). Service is then governed by section 99E and contravention is an offence under section 99I.

A defendant is charged with a summary offence under the Summary Offences Act 1953 (SA). The information is laid in the Magistrates Court under section 49 within six months of the alleged offence (section 52). The defendant pleads guilty in writing under section 27B; the court convicts on the written plea under section 62B. Costs are dealt with under section 189A.

A defendant is charged with a major indictable offence (eg homicide). The prosecution lays an information under section 101 and delivers the section 105 pre-committal documents. The committal proceeds under Division 3 of Part 5. The defendant is committed for trial in the Supreme Court (section 116). The defendant elects judge-alone trial under section 7 of the Juries Act 1927 (SA). On conviction, the defendant appeals to the Court of Appeal under section 157. The appeal is determined under section 158, including the unreasonableness ground in section 158(1)(a) and the inadequacy-of-reasons grounds in section 158(1)(b) and (c), as discussed in Dansie v The Queen [2022] HCA 25.

The DPP applies to the Court of Appeal for retrial of a person who was acquitted of a major indictable offence after fresh DNA evidence emerges. The application proceeds under section 147; the DPP must satisfy the Court of Appeal that the evidence is fresh and compelling within the strict definition in section 142 and that a retrial would be in the interests of justice.

A complainant is the victim of identity theft. Police bring an information under section 78 for a non-association order against the alleged offender, or seek an identity theft certificate under section 84 for the victim.