Criminal Procedure (General) Regulations 2017

Defence case statement. This is the central document described in Schedule 1. It is not optional for a defendant facing an indictable trial. Within four weeks of receiving the prosecution case statement (which must be provided six weeks before arraignment), the defendant must file and serve a statement that admits or denies facts and elements, lists witnesses the defence wants the prosecution to call, indicates whether the defence consents to prosecution applications, and declares intentions on expert evidence, alibi evidence, judge-alone trial, interpreters, and various pre-trial issues. The statement must also be provided to co-defendants if jointly charged. Importantly, the defendant must disclose any changes to the information in the statement as soon as practicable, effectively creating a continuing obligation of disclosure. Failure to comply carries evidentiary consequences but not criminal penalties.

Prescribed class. This concept appears only in regulation 5, identifying persons who can perform certain functions under the Act. The three current categories are: prescribed interviewers under the Summary Offences Act 1953 (likely for vulnerable witness interviews), and persons designated by ministerial notice under the Disability Services Act 1993 or the Children’s Protection Act 1993. The class is not static; Ministers can add or remove persons by gazette notice without amending the regulations. This gives the executive capacity to respond to changes in specialist roles without legislative delay.

Witness fees. Two separate regimes operate. Prosecution witnesses have a statutory right to payment capped at $100 per day for loss or expenses (whichever is less), with travel and accommodation additional. State and Commonwealth employees are excluded unless on leave. Defence witnesses have no right; the court may order payment of the same amounts but is not obliged to do so. The discretion is in the prescribed authority, which is the court itself for superior courts or a magistrate for the Magistrates Court. This asymmetry reflects the state’s interest in securing prosecution attendance while leaving defence witness compensation to judicial discretion.

Sentencing reductions notice. Regulation 4 obliges the prosecution or court to inform defendants of the sentencing discount available for a guilty plea and how to enter that plea. The regulation does not specify the quantum of the reduction; that is left to sentencing laws. The notice can be in pictorial or graphical form, suggesting an attempt to make it comprehensible to defendants with limited English or education. However, the regulation imposes no penalty for failure to give the notice; the practical consequence may be that a defendant could argue that a sentence should not be reduced because they were not informed.

Costs payable by defendant. Regulation 10 fixes $150 as the amount of costs a court may order against a defendant under section 189A(2) of the Act. This is a modest, fixed sum that avoids the expense of taxing costs in minor criminal matters. It applies only in certain proceedings, likely summary offences, and is not discretionary as to quantum; the only discretion is whether to order costs at all.

Defendants charged with indictable offences. These regulations impose the heaviest burden on defendants. The defence case statement requirement applies to any person charged with an indictable offence proceeding to trial in the Supreme or District Court. The defendant must file the statement within four weeks of receiving the prosecution case statement. For an unrepresented defendant, this is a complex document requiring technical knowledge of issues like joinder, severance, cross-admissibility, chain of custody, and points of law. The cost of legal advice to comply is a private burden. There is no exemption for financial hardship, though the court may grant extensions or variations. The regulation also applies to defendants who are jointly charged, who must serve their statement on each co-accused.

Prosecution authorities. The Director of Public Prosecutions and police prosecutors must provide the prosecution case statement six weeks before arraignment, must respond to defence case statements that challenge expert or alibi evidence, and must arrange payment of prosecution witness fees. The prosecution also benefits from the defence’s disclosure obligations: the defence statement narrows issues, identifies contested facts, and forces early indication of expert or alibi evidence. This reduces trial uncertainty and may encourage early pleas or case management.

Witnesses for the prosecution. They are entitled to fees covering lost income or expenses up to $100 per day, plus travel and accommodation. The cap is low; $100 per day may not cover actual wages for a skilled worker or professional. The regulation does permit a prescribed person to authorise a higher amount if just and reasonable, but that is discretionary. State employees and police officers receive nothing unless on leave, presumably because their salary continues during court attendance.

Witnesses for the defence. They have no entitlement to fees; payment is at the court’s discretion. This creates a disincentive for ordinary citizens to attend court as defence witnesses, especially if they lose income or incur travel costs. The court may exercise its discretion to award the same amounts as for prosecution witnesses, but the uncertainty may affect witness availability. A defendant needing a critical witness who cannot afford to lose a day’s pay may be at a disadvantage.

Persons designated under the Disability Services Act 1993 or the Children’s Protection Act 1993. These persons, designated by ministerial notice, form part of a prescribed class under regulation 5. The regulation does not specify what functions they may perform; that depends on the Act’s cross-referenced provisions. Likely these are specialist interviewers or support persons for vulnerable witnesses or defendants. The designation process is executive, not judicial, and requires no consultation.

Courts. The Supreme Court, District Court, and Magistrates Court are responsible for administration of these regulations. The sheriff in superior courts, and magistrates or justices in the Magistrates Court, act as prescribed persons for witness fees. The court may also make orders regarding defence case statements and co-defendant service.

Ministers. The Ministers administering the Disability Services Act 1993 and the Children’s Protection Act 1993 have the power to designate persons or classes by gazette notice. They can also vary or revoke designations. This gives those Ministers a role in criminal procedure regulations, which is unusual but reflects the cross-portfolio nature of vulnerable witness provisions.

Duty to file defence case statement. The defendant’s most significant duty is to file and serve a defence case statement within four weeks of receiving the prosecution case statement. The statement must admit or deny each fact and element in the prosecution case statement. This is not a simple yes/no checkbox. The defendant must also list any witnesses they want the prosecution to call, provided those witnesses have given a statement but are not on the prosecution’s list. This forces the defence to reveal its strategy and potential witnesses early, reducing the element of surprise at trial. The duty is ongoing: if information changes or new evidence arises, the defendant must disclose it as soon as possible, typically by filing an updated statement.

Duty to notify of expert evidence. If the defence intends to call expert evidence, it must give written notice at the same time as filing the defence case statement, unless the evidence becomes available later, in which case notice must be given as soon as practicable. The notice must include the expert’s name, qualifications, the general nature of the evidence and what it tends to establish. The form is prescribed by the Supreme/District Court Criminal Rules. Failure to comply may result in the court refusing to allow the evidence, and the prosecutor or court may comment to the jury on the non-compliance.

Duty to submit to medical examination. For expert psychiatric or medical evidence about the defendant’s mental state or medical condition at the time of the offence, the court may require the defendant to submit to an examination by an independent expert approved by the court. Refusal to submit can lead to the court refusing to allow the defence to call such expert evidence. This is a significant power, effectively forcing the defendant to cooperate with a government-appointed expert or lose the ability to present their own mental state evidence.

Duty to notify of alibi evidence. Alibi evidence not given at committal must be notified at the same time as the defence case statement. The notice must include a summary of facts, the name and address of the alibi witness, and any other particulars required by the court rules. Failure to notify may result in the evidence being excluded, and the prosecutor or court may comment to the jury.

Duty to respond to prosecution notices. The court may authorise the prosecution to serve notices requiring the defence to provide information on specific matters: notification of prosecution witnesses not required, notice of defences (mental unfitness, mental incompetence, accident, property entitlement, defensive purpose), and notice of provocation, automatism, necessity, duress, or intoxication. Failure to respond to a notice regarding prosecution witnesses leads to an assumption of no objection. Failure to give notice of these defences does not bar calling evidence, but the prosecutor or court may comment to the jury.

Rights of defendants. Defendants have a right to be informed of sentencing reductions for guilty pleas and the process for entering the plea. This is a statutory right under section 105 of the Act, implemented by regulation 4. The notice may be pictorial, which could assist defendants with low literacy. However, the right is only to be informed; there is no guarantee of a particular discount.

Rights of witnesses. Prosecution witnesses have a right to claim the lesser of actual loss or $100 per day, plus travel, accommodation, and, if accompanied, fees for an accompanying person. The prescribed person may authorise further amounts if just and reasonable. This is a limited right; in practice the cap may not cover genuine loss. Defence witnesses have no right; they depend on the court’s discretion.

Right of the prosecution to challenge expert/alibi evidence. Regulation 7 gives the prosecution the right to file a response outlining the basis for challenging admissibility, but it also imposes a duty to do so if it intends to challenge. This ensures the defence knows the grounds of challenge before trial.

These regulations do not create criminal offences or penalties. Instead, they enforce compliance through procedural consequences that can severely affect a defendant’s case. The most significant enforcement mechanisms are evidentiary exclusion and adverse comment to the jury.

Exclusion of expert evidence. If a defendant fails to give proper notice of expert evidence, the court may refuse to allow the evidence to be called without the court’s permission. This is a powerful sanction; in a case that turns on expert opinion, such as mental state or forensic analysis, exclusion can effectively defeat the defence. The court does have discretion to grant permission, but the defendant bears the risk.

Exclusion of alibi evidence. Non-notified alibi evidence may be excluded entirely. The regulation states that if the defendant does not give notice, they may not be able to call alibi evidence. Again, the court has discretion, but the default position is exclusion.

Adverse comment by prosecutor or judge. For failures to notify of particular defences (provocation, automatism, necessity, duress, intoxication, mental incapacity, accident, etc.), the prosecutor or court may comment to the jury on the defendant’s failure to give notice. This can be highly prejudicial, as it invites the jury to draw an inference that the defence is manufactured or late-breaking. The jury is not told they must draw such an inference, but the comment is permissible and cannot be countered by the defence as a breach of silence.

Exclusion of expert psychiatric/medical evidence for non-cooperation. If the court orders a psychiatric or medical examination and the defendant refuses, the court may refuse to allow the defendant to call expert psychiatric or medical evidence. This is a particularly harsh sanction: the defendant must either submit to an independent expert chosen by the court, or lose the ability to present their own case on mental state. It arguably compels self-incrimination to some degree, though it is limited to medical evidence.

Assumption of no objection. If the defence fails to respond to a notice about prosecution witnesses not required, the court assumes the defence has no objection. This waives any right to challenge the prosecution’s decision not to call a witness, which could be important if the witness is exculpatory.

Costs order. Regulation 10 prescribes $150 as costs payable by a defendant under section 189A(2) of the Act. This is a fixed sum, not a penalty for non-compliance with these regulations; it is a cost order that may be imposed in certain criminal proceedings. The amount is modest, but the order itself can be enforced like a civil debt.

No penalty for failing to give sentencing reductions notice. Notably, regulation 4 imposes no consequence on the prosecution or court for failing to give the notice. A defendant who was not informed of the sentencing discount might argue that the lack of notice should be a mitigating factor, but the regulations do not provide a remedy.

Criminal Procedure Act 1921 (SA). These regulations are made under and give effect to specific provisions of the Act. Regulation 4 implements section 105(1)(a); regulation 5 implements section 111(5)(a)(ii); regulation 6 implements section 115(4)(a); regulation 7 implements section 123(9); regulation 10 implements section 189A(2)(a). The Schedule 1 information is prescribed under sections 115 and related disclosure provisions. Any amendment to the Act’s sections referenced will affect the operation of these regulations. Conversely, these regulations fill in details that the Act leaves open, such as the length of notice periods and the quantum of fees.

Summary Offences Act 1953. Regulation 5(1)(a) incorporates by reference the definition of “prescribed interviewer” under section 74EB of the Summary Offences Act. That section deals with audio-visual recordings of interviews with vulnerable witnesses in summary offence matters. By cross-referencing, the Criminal Procedure (General) Regulations extend the use of such interviewers to indictable proceedings under the Criminal Procedure Act. This ensures consistency in the treatment of vulnerable witnesses across different court levels.

Disability Services Act 1993 and Children’s Protection Act 1993. Regulation 5(1)(b) and (c) allow the responsible Ministers to designate persons or classes by gazette notice. These designations have effect for the purposes of section 111(5)(a)(ii) of the Criminal Procedure Act. The regulations themselves do not define who qualifies; that is left to ministerial discretion. This means the definition of the prescribed class can change without legislative amendment, simply by a new gazette notice. The Acts themselves are primarily about disability services and child protection, not criminal procedure, so this cross-referencing leverages expertise in those fields.

Supreme Court Criminal Rules and District Court Criminal Rules. Schedule 1 repeatedly refers to forms required by the Supreme/District Court Criminal Rules. For example, the notice of expert evidence must be given in the form required by those rules; the alibi notice must be in the form required by those rules. This means the regulations are not exhaustive; practitioners must also consult the court rules to determine the precise format. The court rules can be amended more easily than regulations, so the actual compliance burden may shift over time.

Sentencing laws. Regulation 4 refers to “sentencing reductions available under the sentencing laws in relation to guilty pleas in accordance with section 105(2)(a) of the Act.” This does not specify the reduction percentage; it is a reference to other laws, likely the Criminal Law (Sentencing) Act 1988 (SA) or common law principles. The notice must inform defendants of reductions, but the regulation does not define them, and the reductions may change over time.

Legislation Revision and Publication Act 2002. The legislative history notes that regulation 2 and Schedule 2 were omitted under that Act from 1 January 2019. This is a technical interaction relevant to how the regulations are published and maintained.

The Criminal Procedure (General) Regulations 2017 were made on 12 December 2017 and commenced on 5 March 2018. They revoked two previous sets of regulations: the Summary Procedure (Section 107 Statements) Regulations 2007 and the Summary Procedure (Witness Fees) Regulations 2007. The revocation consolidated these into a single instrument.

The only substantive amendment recorded in the legislative history is by the Criminal Procedure (General) Variation Regulations 2018 (No 250 of 2018), gazetted on 13 December 2018 and commencing 1 January 2019. That amendment inserted regulation 10, which prescribes $150 as the costs payable by a defendant under section 189A(2)(a) of the Act. Prior to that insertion, there was no prescribed amount under these regulations for that purpose; it is likely that either no such costs were ordered or the amount was at large. The amendment brought certainty but also established a low fixed sum.

Additionally, the legislative history shows that regulation 2 (which would have been the commencement provision) and Schedule 2 were omitted under the Legislation Revision and Publication Act 2002 on 1 January 2019. This is a housekeeping measure; the commencement provision was spent after the regulations commenced, and Schedule 2 presumably contained transitional or revoked provisions. Their omission does not affect current operation.

There are no other amendments. The regulations are relatively stable. The absence of frequent amendment suggests little legislative attention to the procedural details they govern, or that the primary Act has not been amended in ways requiring consequential changes. However, the ministerial designation power under regulation 5 allows flexibility without amending the regulations themselves.

The regulations themselves do not cite any cases, and a search of available databases reveals no reported decisions that specifically interpret or apply these regulations in a contested manner. This is unsurprising for procedural regulations that are largely administrative. Litigation is more likely to focus on the primary Act or on the court rules. However, the practical operation of the regulations may be tested in criminal appeals.

For example, a defendant might appeal a conviction on the ground that the trial judge erred in excluding expert evidence for non-compliance with the notice requirements in Schedule 1. The appellate court would then construe the phrase “as soon as practicable” in item 3 of Schedule 1. Similarly, an appeal could arise from a judge’s adverse comment to the jury about a defendant’s failure to give notice of a defence. The courts would need to consider whether the comment was permissible under the regulation and whether it caused an unfair trial.

The costs provision in regulation 10 is likely to be applied without controversy; $150 is a small sum unlikely to justify an appeal. The witness fee provisions have not been litigated, probably because the amounts are low and discretionary.

The prescribed class under regulation 5 could be challenged if a designated person acted beyond their authority, but no such challenge is recorded. The regulation’s interaction with the Acts it references could also be litigated, but again no known cases.

In summary, these regulations have generated little reported litigation. This may reflect their precise wording and limited scope, or it may indicate that any disputes are resolved at the trial level without appellate decisions. Practitioners should be aware that the absence of case law does not mean the regulations are immune to challenge; novel issues could arise.

The four-week deadline. The defence case statement must be filed within four weeks of receiving the prosecution case statement. This is a short period, especially for complex cases with multiple charges or defendants. The regulations do not provide for automatic extensions; any extension must be sought from the court. Missing the deadline can have consequences even if the statement is filed late, as the prosecution may argue prejudice.

The continuing obligation to update. The defence is required to disclose changes to information in the defence case statement “as soon as possible.” This is an open-ended duty; the defence must constantly monitor its case and update the statement when new information arises or old information changes. Failure to do so could lead to exclusion of evidence or adverse comment, even if the original statement was compliant.

Expert evidence and the medical examination trap. If the defence wants to call expert psychiatric or medical evidence about the defendant’s mental state at the time of the offence, the court may require the defendant to submit to an examination by an independent expert approved by the court. If the defendant refuses, the court may refuse to allow the defence to call its own expert evidence. This is effectively a forced examination; the defendant cannot refuse without forfeiting that line of defence. The independent expert is not the defendant’s choice; it is court-approved. The report may be unfavourable, and the prosecution may use it.

Alibi notice must include witness address. The alibi notice must include the name and address of the witness. If the alibi witness is a friend or family member, revealing their address to the prosecution early may expose them to investigative pressure or intimidation. There is no provision for withholding the address on safety grounds, though the court may make orders.

Failure to respond to prosecution notices. The court may authorise the prosecution to serve a notice requiring the defence to state whether it objects to the prosecution not calling certain witnesses. If the defence fails to respond, the court assumes no objection. This is a waiver by inaction. Solicitors must calendar such notices to avoid inadvertent waiver.

$100 per day cap on prosecution witness fees. The actual amount lost by a witness may be well over $100, especially for professionals. The regulation says the lesser of actual loss or $100 per day is payable. However, the prescribed person may authorise a further amount if just and reasonable. But this is discretionary, and many witnesses will not know to request the higher amount. The default creates a perverse incentive for prosecution witnesses to inflate expenses to exceed $100, so they can then seek a just and reasonable further amount.

Defence witness fees are discretionary, not a right. A defence witness may incur significant loss to attend court, but the court has no obligation to pay anything. This can deter witnesses from cooperating, especially if they are not family or friends of the defendant. The defendant may have to compensate the witness privately, adding to the cost of defending criminal charges.

$150 costs order is fixed, not proportionate. Regulation 10 prescribes $150 as costs payable by a defendant under section 189A(2). This is a low amount, but it is not linked to the actual costs incurred by the prosecution. In a minor matter, $150 may exceed the prosecution’s costs; in a more complex matter, it is far below. It is a blunt instrument that may either overcompensate or undercompensate, but it avoids the cost of detailed taxation.

No penalty for failing to give sentencing reductions notice. The prosecution or court must give the notice, but the regulation does not prescribe a consequence for failing to do so. A defendant who was not informed could argue that they were denied the opportunity to plead guilty early and thus received a higher sentence. However, the appellate courts would have to decide whether the failure is a procedural irregularity that can be remedied.

For defence solicitors, compliance with the regulations is procedural but carries significant strategic implications. The critical document is the defence case statement. The following steps outline a practical approach.

Step 1: Obtain the prosecution case statement. The prosecution must serve this six weeks before arraignment. Upon receipt, the defence has four weeks to file and serve the defence case statement. The solicitor should immediately calendar the deadline and, if necessary, seek an extension early if the case is complex. The solicitor should also confirm that the prosecution case statement includes all required matters, such as a summary of facts, list of witnesses, and prosecution applications.

Step 2: Prepare the defence case statement. The statement must admit or deny each fact and element alleged. This requires careful analysis of the elements of the offence and the evidence available. The defence should not admit facts that are not clearly established, but should consider strategic admissions to narrow issues. The statement must also list any witnesses the defence wants the prosecution to call, provided those witnesses have given statements but are not on the prosecution’s intended call list. This is an important tactical tool: the defence can compel the prosecution to call a witness if that witness is relevant and not hostile.

Step 3: Indicate pre-trial issues. The defence must indicate whether it consents to prosecution applications, whether it intends to apply for judge-alone trial, whether it requires an interpreter, and whether it intends to raise issues such as joinder, severance, cross-admissibility, search legality, stay of proceedings, chain of evidence, or points of law. These indications should be made after full consideration, as they may affect case management decisions.

Step 4: Notice of expert evidence. If any expert evidence is intended, the defence must give notice at the same time as filing the defence case statement. The notice must include the expert’s name and qualifications, and a description of the general nature of the evidence and what it tends to establish. The form is required by the court rules; the solicitor must check those rules. If the expert evidence becomes available later, notice must be given as soon as practicable. For psychiatric or medical evidence, the defence should anticipate a court order for an independent examination. The solicitor should advise the client that refusal to comply may forfeit that line of evidence.

Step 5: Notice of alibi evidence. If alibi evidence was not given at committal, notice must be given at the time of the defence case statement. The notice must include a summary of facts, the name and address of the alibi witness, and any other particulars required by court rules. The solicitor should assess whether revealing the witness’s address at this stage creates any risk and seek appropriate court orders if necessary.

Step 6: Monitor for changes. The obligation to update the defence case statement is ongoing. If the defence decides not to call a previously notified expert, or develops a new alibi, or changes its position on pre-trial issues, it must disclose that as soon as possible. A good practice is to file an updated defence case statement rather than relying on informal correspondence.

Step 7: Respond to prosecution notices. The prosecution may serve notices requiring the defence to state whether it consents to not calling certain witnesses, or to give notice of specific defences. These notices have short response times, and the consequence of non-response is either an assumption of no objection (for witnesses) or adverse comment at trial (for defences). The solicitor must ensure these notices are not lost in the paperwork.

Step 8: Understand witness fee arrangements. For prosecution witnesses, the solicitor should inform the witness that they can claim the lesser of actual loss or $100 per day, plus travel and accommodation. If the loss exceeds $100, the witness should request the sheriff or magistrate to authorise a further amount as just and reasonable. The witness should keep written evidence of loss. For defence witnesses, the solicitor should advise that fees are discretionary, and the witness cannot rely on being reimbursed. The defendant may need to pay the witness privately or make a request to the court in advance.

Step 9: Costs. If a defendant is convicted in certain proceedings, the court may order costs of $150 under regulation 10. The solicitor should inform the client of this potential liability early. It is a fixed amount with no assessment, so there is no scope to argue it down.

Step 10: Maintain records. The defence should keep a compliance checklist: date of receipt of prosecution case statement, deadline for defence case statement, date filed, content of notices, updated statements, and responses to prosecution notices. This record may be crucial if there is a dispute about compliance at trial.