1 Laying of the information

1.1 Information must be reduced to writing (section 101(2)) and witnessed by a Registrar, Deputy Registrar or Justice of the Peace (rule 19.02) unless the informant is a "public authority" or "public officer" (rule 19.04).

1.2 An information laid by the police will be in the name of "Police v . . . ".

1.3 An information laid by a "public authority" will be in the name of the public authority v . . .

1.4 Form 4 is used (rule 19.01).

1.5 Where forfeiture, compensation, additional penalty, destruction or the like is sought, that fact must be stated in the information. (rules 15.02 and 19.10)

1.6 Information must be filed in the Court as soon as possible (section 101(3)). Rule 19.07 requires it to be lodged within seven days "unless not practicable".

1.7 A copy of the information must be given to the defendant at or before the first court appearance. (rule 19.09)

2 Joinder of charges

2.1 Any number of charges may be joined on the same information (either cumulatively or in the alternative) if they arise from the same set of circumstances or from a series of circumstances of the same or a similar character. (section 102(1))

2.2 An information may include any two or more of

2.2.1 major indictable offences

2.2.2 minor indictable offences

2.2.3 summary offences

(section 102(2))

2.3 The information must categorise each offence charged. (rule 19.08)

2.4 Charges dealt with on the one information are dealt with as though they were as serious as the most serious on the information, (section 102(3)) however there is power for the Court to deal with the charges on the one information either separately or together (section 102(4)).

3 Procedure - Minor indictable offences

3.1 When a defendant is provided with a copy of an information alleging a minor indictable offence, he must also be provided with a form 8 - form of election. (section 103(2))

3.2 If a defendant charged with a minor indictable offence does not elect for trial in a superior court, the charge will be dealt with in the same way as a charge of a summary offence. (section 103(3))

3.3 Rule 21 sets out the procedure for making an election.

3.3.1 An election is made by filing the form in the Court (rule 21.03).

3.3.2 Unless an election has been filed, the prosecution, upon request of the defence or direction of the court, are required to provide the defence with a summary of the evidence in support of a charge of a minor indictable offence no later than 3 weeks after such request or direction. A request for particulars must be made by the defendant within 3 weeks of his or her first appearance (rules 21.04, 21.05 and 21.06).

3.3.3 If a defendant wishes to elect the election must be made within 14 days of the delivery of the summary of evidence, or where no summary has been requested or directed, not later than 6 weeks after the defendant's first appearance. (rule 21.07)

3.3.4 In any event an election may not be made after the matter has, with the consent of the defendant, been set for trial. (rule 21.08)

3.3.5 Having made an election "for trial" in a superior court a defendant may at any time before the conclusion of the preliminary hearing withdraw that election (section 105(4)) in which case the charge is then dealt with in the same way as a charge of a summary offence.

3.3.6 Having made an election "for trial" in a superior court the matter proceeds from that point as a preliminary hearing. See page 10.3 para 4 regarding proceedings for preliminary hearings.

3.3.7 There are two views as to what happens if a person elects for trial before a superior court and then at some later stage in the preliminary hearing enters a plea of guilty in the manner described in 4.7.2.1 below.

3.3.7.1 One view is that one commits the defendant to the superior court for sentence. The view being taken that whilst the defendant can only elect for trial, the court may either commit for trial or sentence.

3.3.7.2 The other view is that in pleading guilty the defendant has in effect withdrawn that election by pleading guilty, as the two concepts of election "for trial" and a plea of guilty are mutually incompatible.

3.3.8 The rules of court and the forms have been drawn up on the basis that the view expressed in 3.3.7.1 is correct.

3.3.9 Some support for the view expressed in 3.3.7.2 is obtained from sections 108 and 109. See 4.8.4.2 below.

3.4 Section 19(3) of the Criminal Law (Sentencing) Act prohibits a Magistrate from imposing a penalty greater than a division 5 imprisonment or a fine of twice division 1. Section 19(4) of that Act reads:-

Where a court of summary jurisdiction has convicted a defendant of a minor indictable offence and there is, in the court's opinion, sufficient reason for imposing a penalty in excess of the limits imposed by subsection (3), the court must remand the defendant in custody or on bail to appear for sentence before a District Criminal Court at a time and place fixed by the court of summary jurisdiction.

4 Procedure - Preliminary hearing

4.1 Where a defendant is before the court (either in custody or on bail) the Court may appoint a time and place for the defendant "to answer the charge" (section 103(1)). This is the date of the preliminary hearing as section 105 talks of defendants appearing at a preliminary hearing "to answer the charge". To allow time for 4.2 and 4.5 to be complied with, the date set "to answer the charge" will have to be no less than 8 weeks on from the first appearance.

4.2 At least 14 days before the date "to answer the charge" and not more than 6 weeks after the defendants first appearance before the court the "prosecutor" must file in Court, and deliver to the defendant or his solicitor, copies of

4.2.1 statements of all witnesses on which the prosecution intend to rely

4.2.2 copies of any documents on which the prosecution intends to rely

4.2.3 a document describing any other "evidentiary material" on which the prosecution intends to rely

4.2.4 any other material relevant to the charge that is available to the prosecution

Section 104(1) and Rule 20.01.

4.3 Any further material, of the kind referred to in 4.2.1 to 4.2.4, that comes into the prosecutors possession later than the time mentioned in 4.2 must be given to the defence as soon as practicable after it comes into the prosecutors possession (section 104(2)).

4.4 NOTE.

4.4.1 The word "prosecutor" is used in PART V (Division II) and in the rules, but does not seem to be defined anywhere. The "prosecutor" is usually thought to mean the actual person who appears in court for the complainant/informant. Who is the prosecutor though when the Act or Rules require something to be done out of court? Is it the last person who appeared? Is it interchangeable with "prosecution" or "informant"? Does it really matter?

4.4.2 Section 103(1) contains the requirement in relation to persons in custody, or for whom a warrant has been issued, that they be remanded in custody or on bail but where a defendant is before the Court in answer to a summons pursuant to section 103(1)(b)(ii), the provisions of section 17 of the Magistrates Court Act allows the Court to adjourn the proceedings. Bail is not necessary. Upon committal to a superior Court section 112 requires the defendant to be remanded either on bail or in custody. This section does seem to run contrary to the provisions of section 105(1)(a) which permits the Court to commit a person for sentence who does not appear at the committal.

4.5 Rule 20.02 requires a defendant to give notice to the Court and the prosecution (not prosecutor) of the witnesses in relation to whom an application to examine orally will be made and a brief outline of the reasons they are required, by the court appearance next following the service of the documents mentioned in 4.2.

4.6 Sections 104(3) & 104(4) provide for the reception of statements of children under 12 and persons who are illiterate or mentally retarded to be either in the form of a police officers record of an interview with the witness or in the form of a video-tape or audio-tape of the interview. Where a video-tape or audio-tape are filed, a written transcript must also be provided and the defendant has a right to have the tape played over to him or her or his or her legal representative. The time limit for both providing the transcript and having the tape played is, however, the same as for the presentation of the material itself - 14 days before the appearance "to answer the charge".

4.7 The preliminary hearing proper.

4.7.1 If the defendant appears personally (section 105(2)).

4.7.1.1 The charge is read.

4.7.1.2 The defendant will be asked how he or she pleads to it. At this time the defendant may

- admit the charge (see 4.7.1.3)
- deny the charge (see 4.7.1.4)
- assert previous conviction or acquittal of the charge (see 4.7.1.5)
- say nothing, in which case the defendant is taken to have denied the charge

4.7.1.3 If the defendant admits the charge he or she is committed for sentence with no preliminary hearing. Declarations will still have been prepared though although the Court has no statutory duty to ensure that the evidence is sufficient to put the defendant or trial for an offence.

4.7.1.4 If the defendant denies the charge the Court must consider the evidence for the purpose of determining whether it is sufficient to put the defendant on trial for an offence. So far as the taking of evidence is concerned see 4.7.2.

4.7.1.5 If the defendant asserts a prior conviction or acquittal, the Court reserves that question to the trial Court, and proceeds as if the defendant had denied the charge.

4.7.2 If the defendant does not appear personally (section 105(1).

4.7.2.1 If the defendant has returned a written form pleading guilty (rule 22.00) the Court will commit the defendant for sentence in the superior court.

NOTE:

- The plea of guilty must be to all charges.
- The form must be served on the defendant with the information.
- The form must be signed by the defendant in the presence of a solicitor who must certify that the defendant has had legal advice.
- The form must be returned at least 2 clear days before the date "fixed for attendance" (rule 22.06).
- What is the situation if a defendant pleads guilty in writing prior to the prosecution preparing their declarations? Do they still have to prepare them. The Act does not excuse preparation of statements in the situation nor should it as the defendant may well withdraw his plea.

4.7.2.2 If the defendant has neither returned a written plea nor personally appeared at the hearing, the Court may

- Summons the defendant and issue a warrant if he fails to answer the summons
- Issue a warrant for the apprehension of the defendant
- 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 preliminary examination as if the defendant had appeared and denied the charge.

4.7.3 Evidence at a preliminary examination.

4.7.3.1 The prosecutor tenders the statements and other material previously filed. Subject to any objections as to admissibility that are upheld, the Court will admit those statements as evidence.

4.7.3.2 The prosecutor is only required to produce witnesses for cross-examination if

- the defence has given notice as mentioned in 4.5 above and in rule 20.02, AND
- the Court grants leave to call the witness for oral examination.

4.7.3.3 Leave to call a witness for oral examination or cross-examination will not be granted unless there are special reasons for doing so. Section 106(3) provides that

In determining whether special reasons exist for granting leave 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;

(b) the need to ensure that the issues for trial are adequately defined;

(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 or a child under the age of 12 years, the Court must not grant leave unless satisfied that the interests of justice cannot be adequately served except by doing so.

The distinction between the test to be applied to a witness at large and a witness in a sexual case or a child under 12 (not of or under the age of 12 as in the Evidence Act) is significant. The first 3 criteria in section 106(3) do not apply to such a witness.

The provisions of section 106(3) were considered by the Full Court in Goldsmith v Newman 59 SASR 404. King CJ said, at page 411:-

It may be helpful to magistrates to indicate some circumstances which may amount to special reasons.

1 It may appear that there is sound reason to suppose that some degree of cross-examination will eliminate possible areas of contention and refine the matters really in dispute.

2 Cross-examination may be desirable to establish important facts as the foundation of a defence. For example, it may be important to ascertain from witnesses in advance of trial whether the defendant showed signs of intoxication or irrationality at relevant times.

3 It may be necessary for a fair trial that the defence have a limited opportunity to explore in advance of trial key issues which may be relevant to possible defences such as bona fide claim of right or duress.

4 In some cases some limited questioning of scientific witnesses may be necessary to explore possible avenues of inquiry as to alternative hypotheses, or the need for further testing or analysis.

5 There may be reason for dissatisfaction with the extent of prosecution disclosure by filing statements and documents pursuant to s. 104 or otherwise, and cross-examination may appear to be the best way to obtain such disclosure.

...magistrates ought not to accept general assurances that oral examination is necessary, or mere expressions of hopes or expectations that something useful will emerge. They should insist on the disclosure of solid grounds for supposing that oral examination will make a significant contribution to the achievement of a fair trial.

Where special reasons are held to exist, the oral examination should be restricted to the needs and objectives which are thought to amount to special reasons.

4.7.3.4 The prosecutor may not call other oral evidence in support of the case for the prosecution without leave of the Court.

4.7.3.5 Where a statement or video-tape or audio-tape is tendered under section 104(3)(b) the "witness" is not the police officer whose declaration was submitted, but the person whose statement it was.

4.7.3.6 The defendant may give or call evidence.

4.7.3.7 The prosecutor may call evidence in rebuttal of the evidence given for the defence.

4.7.4 Evaluation of the evidence.

Section 107(1) sets out the approach to be taken at preliminary hearing towards evidence, the admissibility of which is challenged. Evidence that is plainly inadmissible should be rejected, but if there are arguments of substance that can be advance for its admission, it must be admitted for the purpose of the preliminary hearing, leaving the final decision as to its admissibility to the trial Judge.

4.8 Committal process

4.8.1 The Court must decide if the evidence submitted is sufficient to put the defendant on trial for any offence, and to that end review the charges on the information and make the necessary amendments to ensure that the information accurately reflects the charges for which there is a case to answer.

4.8.2 Following the review

4.8.2.1 If the defendant is charged with a major indictable offence commit the defendant for trial as to which Court see 4.8.4.

4.8.2.2 If the defendant is charged with a minor indictable offence and has not elected for trial in a superior court, the defendant must be allowed a reasonable opportunity to do so. If the defendant does elect he must be committed as per 4.8.2.1. If he does not, deal with it in accordance with 4.8.2.3.

4.8.2.3 If the defendant stands charges with a summary offence only the court deals with the charge(s) in the same way as if the proceedings had been commenced on complaint.

4.8.3 Alibi Notice

A notice (form 21) must be given to all persons committed for trial.

4.8.4 Forum for trial or sentence.

4.8.4.1 Generally speaking matters are committed to the District Court unless the charge is treason or murder or attempts, conspiracy to commit or assault with intent to commit either of those.

4.8.4.2 The difference between sections 108 and 109 should be noted as whilst only major indictable offences can be committed to the Supreme Court for trial because of their gravity, it would seem that that restriction does not apply to committal for sentence. Does this mean that the legislature does not envisage that matters can be committed for sentence.

Form No. 21

SOUTH AUSTRALIA

MAGISTRATES COURT

ALIBI EVIDENCE

Notice to Defendant

Summary Procedure Act, 1921 - Section 107(5)

If at the trial of the offence with which you are charged, you wish to call alibi evidence (i.e. that you were at some place other than the scene of the crime when the offence was committed) and you have not called such evidence at the preliminary examination, you must give notice of the proposed evidence to the Director of Public Prosecutions.

The notice MUST -

1. be in writing;

2. contain the name and address of any witness by whom such evidence is to be given;

3. be delivered or posted to THE DIRECTOR OF PUBLIC PROSECUTIONS at

Natwest Centre,
7th Floor,
45 Pirie Street,
ADELAIDE, S.A. 5000

WITHIN 7 DAYS FROM TODAY

If you do not give notice as required, you will not be prevented from calling evidence of alibi, but the Crown Prosecutor may inform the jury of your failure to do so and may further comment as to that failure.

If you do give notice as required the Crown may not, after the close of the prosecution case, except by leave of the Court, give evidence in rebuttal of the evidence of alibi.