Div 1Informations

Division 1—Informations 100—Informations charging indictable offences (1) An information charging an indictable offence must contain— (a) a statement of the specific offence or offences that the accused person is charged with; and (b) such particulars as are necessary for giving reasonable information as to the nature of the charge. (2) Despite any rule of law or practice (but subject to the provisions of this Act), an information charging an indictable offence and laid in a court will not be open to objection in respect of its form or contents if it is framed in accordance with any requirements prescribed by the rules of that court. 101—Laying of information (1) Where a person is suspected of having committed an indictable offence triable in this State, an information may be laid in the Magistrates Court, in accordance with the rules, charging that person with the offence. (2) If the information is laid orally, it must be reduced to writing. (3) An information must be filed in the Magistrates Court as soon as practicable after it is laid. 102—Joinder and separation of charges (1) Subject to this Act, charges for 2 or more offences may be joined in the same information if those charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character. (2) The charges joined in the same information under subsection (1) may include charges of any 1 or more of the following: (a) major indictable offences; (b) minor indictable offences; (c) summary offences. (3) Subject to subsection (4)— (a) if an information contains a charge of a major indictable offence, all charges of minor indictable or summary offences included in the same information will be dealt with according to the procedures applicable to major indictable offences; and (b) if an information includes a charge of a minor indictable offence, but no charge of a major indictable offence, all charges of summary offences included in the same information will be dealt with according to the procedures applicable to minor indictable offences, but the penalty that may be awarded for an offence is unaffected by the fact that the offence is dealt with according to procedures applicable to offences of a more serious class. (4) If a person has been committed to a superior court for trial on an information which includes charges for both indictable offences and summary offences, the superior court may, if it thinks fit, order that the charges of summary offences be remitted to the Magistrates Court and dealt with in the same way as if the offences had been charged in a separate information. (5) A court may direct that— (a) charges contained in a single information be dealt with in separate proceedings; or (b) charges contained in separate informations be dealt with together in the same proceedings (provided that a court may only direct that charges contained in separate informations be tried together if the charges could, in accordance with subsection (1), have been joined together in the same information). (6) Despite subsection (5) and any rule of law to the contrary, if 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply: (a) subject to paragraph (b), those counts are to be tried together; (b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim. (7) Substantive charges may be laid in the same information (and tried together) against— (a) any number of accessories at different times to any offence; and (b) any number of receivers at different times of property stolen at 1 time, notwithstanding that the principal offender is not included in the same information or is not available to be tried. (8) Where— (a) 2 or more defendants are charged with committing a summary or minor indictable offence jointly; and (b) 1 or more of the defendants is to be tried in a superior court for that offence or for another offence charged on the same information, the Magistrates Court must order that all the defendants be committed for trial in the superior court together (notwithstanding that 1 or more of the defendants may have failed to elect for trial in a superior court or are charged only with 1 or more summary offences). sexual offence means— (a) an offence against section 48, 48A, 49, 50, 56, 58, 63B or 72 of the Criminal Law Consolidation Act 1935; or (b) an attempt to commit, or an assault with intent to commit, any of those offences; or (c) a substantially similar offence against a corresponding previous enactment; or (d) an offence against the law of the Commonwealth, another State or a Territory corresponding to an offence referred to in a preceding paragraph. 103—DPP may lay information in superior court (1) An information may only be presented to the Supreme Court or the District Court in the name and by the authority of the Director of Public Prosecutions, and, despite any other provision of this Part, a person named in that information may, as a result, be tried at any criminal sessions of the Supreme Court or District Court (as the case may be) for any offence on that information. (2) The fact that an information charging an indictable offence has been filed in the Magistrates Court does not prevent the Director of Public Prosecutions from subsequently presenting to the Supreme Court or District Court an information charging the same offence if the Director of Public Prosecutions thinks fit (and the information filed in the Magistrates Court will, on the giving of written notice by the Director of Public Prosecutions to the Registrar of that fact, be taken to have been withdrawn). (3) Subject to any modifications prescribed by the regulations, the provisions of this Act, and any other law, relating to informations charging indictable offences apply to an information presented to the Supreme Court or District Court in accordance with this section. (4) For the avoidance of doubt, any power of the Supreme Court or the District Court to order the transfer of proceedings under this or any other Act or law applies to proceedings brought under this section in the same way as it applies to any other criminal proceedings. Division 2—Pre-committal hearings etc 104—Securing attendance in Magistrates Court If an information charging an indictable offence has been filed in the Magistrates Court— (a) if the defendant is in custody—the Court may remand the defendant in custody or on bail to appear before the Court at a nominated time and place in relation to the charge; or (b) if the defendant is not in custody— (i) the Court may, if the charge has been substantiated on oath, issue a warrant to have the defendant arrested and brought before the Court and then, on the appearance of the defendant, remand the defendant in custody or on bail to appear at a nominated time and place in relation to the charge; or (ii) the Court may appoint a time and place for the defendant to appear before the Court in relation to the charge and issue a summons requiring the defendant to appear at the time and place so appointed. 105—Pre-committal hearings and documents (1) A defendant charged with an indictable offence must be given the following documents at or before the defendant's first appearance in the Magistrates Court in relation to the charge (in accordance with any requirements imposed by the rules): (a) a notice, in a form prescribed by the regulations, containing the matters specified in subsection (2) and such other matters as may be prescribed; (b) a copy of the information; (c) a brief description of the alleged offending (whether in the form of an extract from a police report relating to the alleged offence or otherwise); (d) if the defendant is charged with a minor indictable offence—the appropriate form for electing for trial in a superior court. (2) A notice referred to in subsection (1)(a) must provide the defendant with information about— (a) sentencing reductions available under the sentencing laws in relation to guilty pleas; and (b) the process for having the matter called on in a court for the purpose of entering a guilty plea. (3) A document required to be given to the defendant under subsection (1) may be given to a person who is acting on behalf of the defendant. (4) Failure to comply with subsection (1) does not affect any proceedings relating to the offence or offences. (5) The Magistrates Court must, on adjourning the defendant's first appearance before the Court in relation to the charge, appoint a time and place for the defendant's second appearance before the Court in relation to the charge, having regard to any information provided by the prosecution as to the likely length of time the prosecution requires in order to obtain witness statements and other material prior to the next appearance (subject to any requirements applying under section 106). 106—Indictable matters commenced by SA Police (1) The following provisions apply in relation to an information charging an indictable offence where SA Police have been the investigating authority and the offence is to be subsequently prosecuted by the Director of Public Prosecutions (a State criminal offence): (a) SA Police must provide the Director of Public Prosecutions with information in relation to the matter (the preliminary brief) that is, in the opinion of the Director of Public Prosecutions, sufficient for the Director of Public Prosecutions to make a determination (the charge determination) as to the appropriate charge or charges to be proceeded with; (b) unless the Director of Public Prosecutions determines otherwise, SA Police will appear before the Magistrates Court on behalf of the prosecution until— (i) the Director of Public Prosecutions considers the preliminary brief and makes the charge determination; or (ii) the defendant elects to have the relevant offence or offences called on in the Magistrates Court for the purpose of entering a guilty plea, whichever occurs first; (c) SA Police must, as soon as practicable after providing the preliminary brief to the Director of Public Prosecutions— (i) give a copy of the preliminary brief to the defendant or a legal practitioner representing the defendant; and (ii) file a copy of the preliminary brief in the Magistrates Court; (d) the Magistrates Court must, in adjourning the proceedings under section 105(5)— (i) have regard to information provided by the prosecution as to the witness statements and other material to be obtained for the purposes of completion of the preliminary brief and the time within which it is expected that the preliminary brief can be completed; and (ii) ensure that the adjournment is for a period that— (A) allows sufficient time for the completion of the preliminary brief; and (B) allows an additional period of not less than 4 weeks for the Director of Public Prosecutions to consider the preliminary brief and make a charge determination; (e) the Magistrates Court must not commence committal proceedings under Division 3 unless the Court has been advised by the prosecution that the Director of Public Prosecutions has made the charge determination. (2) If the Director of Public Prosecutions has not made the charge determination by the time of the defendant's second appearance before the Magistrates Court in relation to the charge, the prosecution may apply to the Court for an adjournment of the matter to enable that to occur. (3) On an application under subsection (2), the Magistrates Court— (a) must have regard to information provided by the prosecution as to the witness statements and other material to be obtained for the purposes of completion of the preliminary brief and the time within which it is expected that the preliminary brief can be completed and the charge determination made; and (b) having regard to that information, may grant the adjournment of the matter or may dismiss the charge, (and, if the proceedings are adjourned and at any subsequent appearance the Court is advised that the Director of Public Prosecutions has still not made the charge determination, subsection (2) and this subsection also apply to the Court in relation to that appearance). (4) The fact that a charge has been dismissed by the Magistrates Court under this section does not prevent the charge from being subsequently laid again. (5) If an information to which this section applies also includes charges of offences other than State criminal offences, the Magistrates Court may make such orders varying the operation of this section as it thinks necessary in the circumstances. 107—Pre-committal subpoenas A subpoena may only be issued in relation to proceedings for an indictable offence before committal proceedings relating to the offence have been completed in accordance with Division 3— (a) by the Registrar if— (i) the subpoena is sought in relation to a charge of a minor indictable offence and the Registrar is satisfied that the defendant will not be electing, in accordance with the rules, for trial in a superior court; or (ii) the subpoena is only issued for the purpose of compelling a witness to give oral evidence in committal proceedings; or (iii) each party to the proceedings and each person to whom the subpoena will apply (if granted) consent to the grant of the subpoena; or (b) by a magistrate on an application under this section. Division 3—Committal proceedings 108—Division not to apply to certain matters (1) If a defendant charged with a minor indictable offence does not elect, in accordance with the rules, for trial in a superior court, the Magistrates Court will not proceed to deal with the charge in accordance with this Division (and the matter will instead be dealt with by trial conducted in the Magistrates Court or by plea entered in the Magistrates Court) unless section 102(8) applies to the defendant. In relation to trials and pleas for minor indictable offences conducted in the Magistrates Court see Division 4. (2) If a defendant charged with a major indictable offence pleads guilty before the commencement of committal proceedings under this Division, the Magistrates Court may, subject to section 116(1)— (a) determine and impose sentence on the defendant; or (b) commit the defendant to a superior court for sentence. (3) To avoid doubt, subsection (2) applies regardless of whether the Director of Public Prosecutions has made a determination as to the appropriate charge or charges to be proceeded with in relation to the information charging the major indictable offence. 109—Committal proceedings generally (1) The committal proceedings for an indictable offence will consist of— (a) an appearance (the committal appearance) in the Magistrates Court conducted in accordance with section 110; and (b) a hearing (the answer charge hearing) in the Magistrates Court at which— (i) the defendant will be asked to formally answer the charge in accordance with section 113; and (ii) if the defendant does not plead guilty—the Court will go on to take evidence in accordance with section 114 and evaluate that evidence in accordance with section 115. (2) The Magistrates Court may exclude a defendant from any committal proceedings if his or her conduct is disruptive and may excuse a defendant from attendance at the committal appearance for any proper reason. (3) A defendant who has elected for trial of a minor indictable offence by a superior court may, at any time before the conclusion of the committal proceedings, withdraw the election and in that event— (a) the Magistrates Court will not proceed to deal with the charge in accordance with this Division (and the matter will instead be dealt with by trial conducted in the Magistrates Court or by plea entered in the Magistrates Court); and (b) if the matter is dealt with by trial conducted in the Magistrates Court, the Magistrates Court may, if the defendant agrees, admit evidence given or tendered at the answer charge hearing. In relation to trials and pleas for minor indictable offences conducted in the Magistrates Court see Division 4. (4) A defendant who has pleaded to a charge at or before committal proceedings may withdraw the plea and substitute some other plea before the conclusion of the committal proceedings. 110—Committal appearance (1) If the defendant pleads guilty at the committal appearance, an answer charge hearing will not be required and the Magistrates Court may (subject to section 116(1))— (a) determine and impose sentence on the defendant; or (b) commit the defendant to a superior court for sentence. (2) If the defendant does not plead guilty— (a) the prosecution must provide the Court with information as to the witness statements and other material to be obtained for the purposes of completion of the committal brief in accordance with the requirements of section 111 and the time within which it is expected that the committal brief can be completed; and (b) the defendant must be given an opportunity to respond to the information provided by the prosecution and to advise the Court whether any negotiations are taking place with the prosecution or provide the Court with information as to any other relevant matter; and (c) the Court must adjourn the proceedings and appoint a time and place for the answer charge hearing, ensuring that sufficient time is allowed for the completion of the committal brief in accordance with the requirements of section 111. (3) If the defendant advises the Court that negotiations are taking place with the prosecution, the defendant may, at any time within the period of 4 weeks after the committal appearance, have the matter called on in the Magistrates Court for the purpose of entering a guilty plea in relation to the charge (and in such a case the defendant will, for the purposes of this Act and the sentencing law, be treated as if the defendant had pleaded guilty at the committal appearance). 111—Committal brief etc (1) Where a charge of an indictable offence is to proceed to an answer charge hearing, the prosecutor must, at least 4 weeks before the date appointed for that hearing, file in the Magistrates Court a brief (the committal brief) containing— (a) statements of witnesses for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant; and (b) copies of any documents on which the prosecutor relies as tending to establish the guilt of the defendant (other than sensitive material or documents that are of only peripheral relevance to the subject matter of the charge); and (c) a document describing any other evidentiary material (including sensitive material and documents that are of only peripheral relevance to the subject matter of the charge) on which the prosecutor relies as tending to establish the guilt of the defendant together with a statement of the significance the material is alleged to have; and (d) all other material relevant to the charge (whether relevant to the case for the prosecution or the case for the defence) that is available to the prosecution except material exempt from production because of privilege or for some other reason, provided that any such material that has already been included in the preliminary brief (filed in the Magistrates Court and given to the defendant or a legal practitioner representing the defendant under section 106) need not be included in the committal brief. (2) If material of the kind required to be included in the committal brief comes into the prosecutor's possession after the filing of the committal brief, the prosecutor must file the new material in the Magistrates Court as soon as practicable after it comes into the prosecutor's possession (and on so doing it will be taken to form part of the committal brief for the purposes of this Act). (3) If material is filed in the Court in accordance with subsection (1) or (2), a copy of that material must be given to the defendant or a legal practitioner representing the defendant as soon as practicable after it is so filed. (4) A witness statement included in a committal brief— (a) must be in the form of an affidavit; and (b) if— (i) the statement is tendered for the prosecution and relates to an interview between an investigating officer and the defendant; and (ii) an audio visual record or audio record of the interview, or the reading over of a written record of the interview, was made under the Summary Offences Act 1953, must be accompanied by a copy of the audio visual record or audio record. (5) However, if the witness is a witness to whom this subsection applies, the following provisions apply: (a) the witness's statement may be— (i) in the form of a written statement taken down by an investigating officer at an interview with the witness and verified by the officer as an accurate record of the witness's oral statements at the interview so far as they are relevant to the subject matter of the charge; or (ii) in the form of an audio visual record or audio record of an interview with the witness that is accompanied by a written transcript verified by an investigating officer or person of a prescribed class who was present at the interview as a complete record of the interview; (b) if a recording referred to in paragraph (a)(ii) is filed in the Court, the prosecutor must— (i) provide the defendant with a copy of the verified written transcript of the recording at least 4 weeks before the date appointed for the answer charge hearing or, if the recording comes into the prosecutor's possession on a later date, as soon as practicable after the recording comes into the prosecutor's possession; and (ii) inform the defendant that the defendant is entitled to have the recording played over to the defendant or his or her legal representative (or both) and propose a time and place for the playing over of the recording; (c) the time proposed for playing the recording must be at least 2 weeks before the date appointed for the answer charge hearing or, if the recording comes into the prosecutor's possession at a later date, as soon as practicable after the recording comes into the prosecutor's possession (but the time and place may be modified by agreement). (6) Subsection (5) applies to a witness who is— (a) illiterate; or (b) a child of or under the age of 14 years; or (c) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions; or (d) the victim of an alleged sexual offence; or (e) the victim of an alleged offence involving domestic abuse (within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009). (7) If the prosecutor relies on evidence that is sensitive material as tending to establish the guilt of the defendant, the prosecutor must, at least 4 weeks before the date appointed for the answer charge hearing— (a) give the defendant copies of the sensitive material; or (b) give the defendant a sensitive material notice in relation to the material. 112—Notices relating to committal proceedings (1) A defendant charged with an indictable offence may file in the Magistrates Court, and give to the prosecution, a notice indicating that the defendant intends to assert that there is no case to answer on the charge in committal proceedings conducted in accordance with section 114. (2) A defendant charged with an indictable offence may file in the Magistrates Court, and give to the prosecution, a notice requesting the oral examination of a witness or witnesses in committal proceedings conducted in accordance with section 114. (3) A notice under this section must— (a) be filed in the Court and given to the prosecution before the date appointed for the answer charge hearing; and (b) in the case of a notice under subsection (1)—specify why the defendant asserts that there is no case to answer; and (c) in the case of a notice under subsection (2)—specify which witness or witnesses and why the defendant asserts there are special reasons for the oral examination; and (d) comply with any other requirements prescribed by the regulations. (4) If a notice under this section is given to the prosecution less than 2 weeks before the date appointed for the answer charge hearing, the Magistrates Court must, at the request of the prosecution, adjourn the answer charge hearing for a period of up to 2 weeks (or such longer period as the Court thinks fit) to allow the prosecution time to consider the notice and properly prepare for the answer charge hearing. 113—Conduct of answer charge hearing (1) In cases where the defendant does not appear at the answer charge hearing, the Magistrates Court will proceed as follows: (a) if the defendant has, in accordance with the rules, returned a written plea of guilty, the Court may, subject to section 116(1)— (i) determine and impose sentence on the defendant; or (ii) commit the defendant to a superior court for sentence; (b) if the defendant neither returns a written plea in accordance with the rules nor appears to answer the charge, the Court may— (i) issue a summons requiring the defendant to appear at a nominated time and place to answer the charge (and if the defendant then fails to appear, issue a warrant to have the defendant arrested and brought before the Court); or (ii) issue a warrant to have the defendant arrested and brought before the Court to answer the charge; or (iii) if there is reason to believe that the defendant has absconded, or there is some other good reason for proceeding in the absence of the defendant—proceed with the committal proceedings as if the defendant had appeared and denied the charge. (2) In cases where the defendant appears to answer the charge, the Magistrates Court will proceed as follows: (a) the charge will be read and the defendant will be asked how the defendant pleads to it; (b) the defendant may then— (i) plead guilty; or (ii) deny the charge; or (iii) assert previous conviction or acquittal of the charge, and if the defendant refuses or fails to plead to the charge, the defendant will be taken to have denied the charge; (c) the Court will then proceed as follows: (i) if the defendant pleads guilty—the Court may (subject to section 116(1))— (A) determine and impose sentence on the defendant; or (B) commit the defendant to a superior court for sentence; (ii) if the defendant denies the charge—subject to subsection (3), the Court will consider the evidence for the purpose of determining whether it is sufficient to put the defendant on trial for an offence; (iii) if the defendant asserts previous conviction or acquittal, the Court will reserve the questions raised by the plea for consideration by the court of trial and proceed with the committal proceedings as if the defendant had denied the charge. (3) If a defendant who is represented by a legal practitioner concedes that there is a case to answer in relation to an offence, the Court may act on that basis and need not itself consider the evidence for the purpose of determining whether it is sufficient to put the defendant on trial for the offence. 114—Taking evidence at committal proceedings (1) Where a charge is not admitted by a defendant in committal proceedings, the following procedure applies: (a) the prosecutor will tender the statements and other material filed in the Court as part of the committal brief and the Court will, subject to any objections as to admissibility upheld by the Court, admit them in evidence; (b) the prosecutor will call a witness whose statement has been filed in the Court as part of the committal brief for oral examination if— (i) the defendant has filed and given to the prosecution a notice in accordance with section 112(2) indicating that the defendant required production of that witness; and (ii) the Court grants permission to call that witness for oral examination; (c) the prosecutor may, with the permission of the Court, call oral evidence in support of the case for the prosecution; (d) if the defendant has filed and given to the prosecution a notice in accordance with section 112(1) indicating that the defendant intends to assert that there is no case to answer on the charge—the defendant may give or call evidence, or make submissions, in support of that assertion; (e) the prosecutor may call evidence in rebuttal of evidence given for the defence. (2) The Court will not grant permission to call a witness for oral examination under subsection (1) unless it is satisfied that there are special reasons for doing so. (3) In determining whether special reasons exist for granting permission to call a witness for oral examination, the Court must have regard to— (a) the need to ensure that the case for the prosecution is adequately disclosed; and (b) the need to ensure that the issues for trial are adequately defined; and (c) the Court's need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and (d) the interests of justice, but if the witness is the victim of an alleged sexual offence, the victim of an alleged offence involving domestic abuse (within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009), a person with a cognitive impairment that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions or a child of or under the age of 14 years, the Court must not grant permission unless satisfied that the interests of justice cannot be adequately served except by doing so. (4) If a witness is called for oral examination the usual oath will be administered (unless the witness is not liable to the obligation of an oath) and the witness will be examined, cross-examined and re-examined in the usual manner. 115—Evaluation of evidence at committal proceedings (1) The following principles govern the Magistrates Court's approach to evidence in committal proceedings: (a) evidence will be regarded as sufficient to put the defendant on trial for an offence if, in the opinion of the Court, the evidence, if accepted, would prove every element of the offence; (b) although the Court may reject evidence if it is plainly inadmissible, the Court will, if it appears that arguments of substance can be advanced for the admission of evidence, admit the evidence for the purpose of the committal proceedings, reserving any dispute as to its admissibility for determination by the court of trial. (2) If the Magistrates Court, after completing its consideration of the evidence, is of the opinion that the evidence is not sufficient to put the defendant on trial for any offence, the Court will— (a) reject the information; and (b) if the defendant is in custody on the charges contained in the information (and for no extraneous reason)—order that the defendant be discharged from custody. (3) If, after completing consideration of the evidence, the Magistrates Court is of the opinion that the evidence is sufficient to put the defendant on trial for an offence— (a) the Court will review the charges, as laid in the information, in order to ensure that they properly correspond to the offences for which there is, in the opinion of the Court, sufficient evidence to put the defendant on trial and make any necessary amendment to the information; and (b) following the review of the charges— (i) if the defendant stands charged with a major indictable offence—the Court will commit the defendant to a superior court for trial; (ii) if the defendant stands charged with a minor indictable offence but with no major indictable offence—the Court will, if the defendant has not previously elected for trial by a superior court on that charge, allow the defendant a reasonable opportunity to do so and, if the defendant does so elect, will commit the defendant to a superior court for trial but otherwise will proceed to deal with the charge in the same way as a charge of a summary offence; (iii) if the defendant stands charged with a summary offence but with no indictable offence—the Court will proceed to deal with the charge in the same way as if the proceedings had been commenced on information charging the defendant with summary offences only. (4) Where the Magistrates Court commits a defendant for trial, the Court must— (a) provide the defendant with a written statement in the prescribed form— (i) setting out the more important statutory obligations of the defendant to be fulfilled in anticipation of trial; and (ii) explaining that non-compliance with those obligations may have serious consequences; and (b) give the defendant such further explanations of the trial procedure and the defendant's obligations in regard to the trial as the Court considers appropriate. (5) If, in any legal proceedings, the question arises whether a defendant has been provided with the statement and explanations required by subsection (4), it will be presumed, in the absence of proof to the contrary, that the defendant has been provided with the statement and explanations.