MAGISTRATES COURT OF SOUTH AUSTRALIA
RULES
[amended to 26 Sept 2008]
NOTE: This is not an official reproduction of the Rules. Whilst every attempt has been made to accurately reproduce the rules, their accuracy is not guaranteed.
beingMagistrates Court of South Australia Rules (Govt. Gaz. 6 July 1992, p.395)
as amended by
Amendment No.1 to the Magistrates Court Rules (Govt. Gaz. 7 January 1993, p.106)
Amendment No.2 to the Magistrates Court Rules (Govt. Gaz. 18 March 1993, p.1010)
Amendment No.3 to the Magistrates Court Rules (Govt. Gaz. 29 March 1994, p.822) [1]
Amendment No.4 to the Magistrates Court Rules (Govt. Gaz. 19 May 1994, p.1238)
Amendment No.5 to the Magistrates Court Rules (Govt. Gaz. 28 July 1994, p.190) [2]
Amendment No.6 to the Magistrates Court Rules (Govt. Gaz. 7 September 1995, p.695)
Amendment No.7 to the Magistrates Court Rules (Govt. Gaz. 28 September 1995, p.862)
Amendment No.8 to the Magistrates Court Rules (Govt. Gaz. 21 March 1996, p.1695)
Amendment No.9 to the Magistrates Court Rules (Govt. Gaz. 12 December 1996, p.1881)
Amendment No. 10 to the Magistrates Court Rules (Govt. Gaz. 10 April 1997, p. 1485)
Amendment No. 11 to the Magistrates Court Rules (Govt. Gaz. 29 May 1997, p.2722)
Amendment No. 12 to the Magistrates Court Rules (Govt. Gaz. 12 February 1998, p.899)
Amendment No. 13 to the Magistrates Court Rules (Govt. Gaz. 23 April 1998, p.1952)[3]
Amendment No. 14 to the Magistrates Court Rules (Govt. Gaz 11 March 1999, p.1355)[4]
Amendment No. 15 to the Magistrates Court Rules (Govt. Gaz 8 July 1999, p 208)[5]
Amendment No 16 to the Magistrates Court Rules (Govt. Gaz. 24 February 2000, p 1126) [6]
Amendment No 17 to the Magistrates Court Rules (Gov. Gaz. 6 April 2000, p 2038)
Amendment No. 18 to the Magistrates Court Rules (Govt Gaz 1 June 2000, p 2900)
Amendment No. 19 to the Magistrates Court Rules (Govt Gaz 8 March 2001, p 869)
Amendment No. 20 to the Magistrates Court Rules (Gov Gaz 11 September 2003, p 3510)
Amendment No. 21 to the Magistrates Court Rules (Gov Gaz 6 May 2004, p 1216)
Amendment No. 22 to the Magistrates Court Rules (Gov Gaz 5 August 2004, p 2759 [7]
Amendment No. 23 to the Magistrates Court Rules (Gov Gaz 31 March 2005, p 732)
Amendment No. 24 to the Magistrates Court Rules (Gov Gaz 2 March 2006, p 824)
Amendment No. 25 to the Magistrates Court Rules (Gov Gaz 1 December 2005, p 4055)
Amendment No. 26 to the Magistrates Court Rules (Gov Gaz 11 May, 2006 p 1199)
Amendment No. 27 to the Magistrates Court Rules (Gov Gaz 1 March 2007, p 643) [8]
Amendment No. 28 to the Magistrates Court Rules (Gov Gaz 31 May 2007, p2192)
Amendment No. 29 to the Magistrates Court Rules (Gov Gaz 17 April 2008, p 1328)
Amendment No. 30 to the Magistrates Court Rules (Gov Gaz 22 May 2008, p 1712)
Amendment No. 31 to the Magistrates Court rules (Gov Gaz 24 July 2008, p 3451)
Amendment No. 32 to the Magistrates Court Rules (Gov Gaz 25 September 2008, p4561)[9]
[1] Came into effect 1 April 1994.
[2] Came into effect 1 August 1994.
[3] Came into effect 4 May 1998.
[4] Came into effect 6 April 1999.
[5] Came into effect 25 July 1999.
[6] Came into effect 6 March 2000.
[7] Paragraphs 7 to 10 (regarding new forms) to come into effect on 1 January 2005
[8] Came into effect 1 March 2007.
[9] Rule 54 will come into effect on the date of commencement of the Prevention of Cruelty to Animals (Animal Welfare) Act 2008.
PURSUANT to section 49 of the Magistrates Court Act 1991 and all other enabling powers, WE the undersigned do hereby make the following rules :
Rule Title
Section A - Rules of General Application
2 Definitions
3 Seal
4 Statutory Jurisdiction
5 Forms - Compliance
6 Authorisation to Enter and Inspect
Section B - Rules relating to the Criminal Jurisdiction
7 Definitions
8 Caseflow Management
9 Standards
10 Witnesses
11 Challenge to Classification of Offence
12 Complaint
13 Plea of Guilty in Writing - Summary Offence
14 Penalty Management
15 Notice before Penalty
16 Proof of Previous Convictions
17 Application to Set Aside
18 Restraining Orders, Supplementary Firearms Orders and
Foreign Restraining Orders
18A Domestic Violence Restraining Orders, Supplementary
Firearms Orders and Foreign Domestic Restraining Orders
19 Information
20 Preliminary Examination
21 Election - Minor Indictable Offence
22 Written Plea on Information
23 Alibi Statement
24 Procedural Provisions - C.L.C.A.
25 Order of Committal and Warrant of Remand
26 Pre-trial Preparation
27 Summons to Defendant
28 Police Disqualification
28A Wheel Clamping; Seizure of Vehicle
29 Applications
30 Contact Information
31 Contempt Warrant
32 Notice of Legal Representation
33 Proceedings Brought Forward
34 Substantiation on Oath
35 Affidavit Evidence - Procedure
36 Practice and Procedure
37 Electronic Records
38 Forms - Warrants of Apprehension and Remand
39 Registration of Interstate Orders against Bodies Corporate
40 Relief from Compliance with Rules
41 Criminal Law (Sentencing) Act 1988
42 Bail Act 1985
42A Dog and Cat Management Act 1995
43 Affidavits
44 Practice Directions
45 Custody of Records
46 Videolinks
47 Expiation of Offences Act 1996
48 Order for the Attendance of a Prisoner at Court
49 Criminal Law (Forensic Procedures) Act
49A Warrant - Road Traffic Act 1961
50 Criminal Law Consolidation Act - Mental Impairment
Provisions
51 Costs
52 Payment of Advisors, Elders and Experts
53 National Electricity Law and National Gas Law
54 Animal Welfare Act 1985
1.00 CITATION AND COMMENCEMENT
1.01 These Rules may be cited as the Magistrates Court Rules 1992.
1.02 These Rules shall be divided into the following Sections -
Section A Rules of General Application
Section B Rules Relating to the Criminal Jurisdiction
1.03 These Rules take effect on the 6th day of July 1992.
SECTION A - Rules of General Application
2.00 DEFINITIONS
2.01 In this Section "the Act" means the Magistrates Court Act 1991.
3.00 SEAL
3.01
The Court shall have a seal bearing the name of the Court.3.02 The seal of a Registry shall be in the custody of the Registrar.
3.03 The seal of the Court shall be fixed on such process or orders issued out of the Court as the Chief Magistrate shall direct.
3.04 The Chief Magistrate may direct that documents, or classes of documents, issued from the Court may be authenticated by specified electronic means rather than having the seal physically affixed.
4.00 STATUTORY JURISDICTION
4.01 The jurisdiction conferred on the Court by a Statute other than the Act is assigned to that Division of the Court designated in the Rules.
4.02 Where a Statute provides for jurisdiction to vest in a Court of Summary Jurisdiction that jurisdiction shall vest in the Criminal Division.
4.03 Where a Statute provides for jurisdiction to vest in a Local Court of limited jurisdiction that jurisdiction shall vest in the Civil (General Claims) Division,
4.04 The jurisdiction conferred on the Court by the Criminal Assets Confiscation Act 2005, other than section 221, shall vest in the appropriate Civil Division of the Court.
4.05 The jurisdiction conferred on the Court by the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007, shall vest in the Criminal Division of the Court.
4.06 The jurisdiction conferred on the Court by the Serious and Organised Crime (Control) Act 2008, shall vest in the Civil (General Claims) Division of the Court.
5.00 FORMS - COMPLIANCE
5.01 It is sufficient compliance with these Rules, as to the form of any document, if the document is substantially in accordance with the Form.
5.02 Any number of forms may be incorporated in the one document.
6.00 AUTHORISATION
6.01 An authorisation under sec. 22(2) of the Act shall comply with Form No 27.
SECTION B - Rules relating to the Criminal Jurisdiction
DEFINITIONS7.01 In this Section "the Act" means the Summary Procedure Act 1921 unless otherwise provided.
8.00 CASEFLOW MANAGEMENT
8.01 These Rules are made for the purpose of establishing orderly procedures for the conduct of litigation in the Court and of promoting the just and efficient determination of such litigation. They are not intended to defeat the determination of litigation according to the merits of the case of litigants who are genuinely endeavouring to comply with the procedures of the Court, and are to be interpreted and applied with the above purpose in view.
8.02 With the object of -
(a) promoting the just determination of litigation;
(b) disposing efficiently of the business of the Court;
(c) maximising the efficient use of available judicial and administrative resources; and
(d) facilitating the timely disposal of business at a cost affordable by the parties;
proceedings in the Court will be managed and supervised in accordance with a system of positive caseflow management. These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects.
8.03 The practice, procedure and processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for the identification of the factual and legal issues bona fide in dispute between the parties and the preparation of the case for trial or other disposition.
8.04 To these ends -
(a) Parties to proceedings are required to be ready to proceed to trial by the date of the hearing at which a trial date is set.
(b) Parties must fully comply with Rule 26.
(c) A trial date which has been fixed will not be postponed unless the justice of the case, assessed having regard to the obligations of the parties pursuant to paragraph (a) hereof, so requires.
8.05 In the event that any application is made at trial to amend the complaint, information, application, particulars or other process the Court may, if the amendment would cause the postponement or adjournment of the trial, refuse such application, if it sees fit, in order to protect the integrity of the caseflow management system and to implement the Court's requirement that trials proceed at the time appointed for trial, notwithstanding that any injustice to the opposing party might have been avoided by an order for costs adjournment or otherwise.
8.06 The Court may from time to time establish and publish time performance standards for the various stages of proceedings before it as may be necessary and desirable for the most efficient disposal of its business and to this end may establish and promulgate case listing tracks on a differential basis by written practice direction. All proceedings thereafter shall be in accordance with such standards.
8.07 The Court may, at any time, of its own motion on notice to the parties review the progress of proceedings and make such orders or give such directions to lead to their efficient and timely disposal and make such orders concerning time defaults committed by any party as it may consider just and expedient.
8.08 Where there is time default or the conduct of a party is otherwise contrary to the objects stated in Rule 8.02 the Court may dismiss the proceedings and may do so in order to protect the integrity of the caseflow management system and to implement the Court's requirements that matters proceed at the time fixed for hearing whether by way of trial or otherwise notwithstanding that any injustice to the opposing party might have been avoided by an order for costs or some other order.
CONTENTS
9.00 STANDARDS
9.01 The Court pursuant to rules may establish and publish standards with respect to any aspect of the legal process.
10.00 WITNESSES - Magistrates Court Act
10.01 A summons to witness shall comply with Form No 11.
10.02 A summons to witness shall be served personally.
10.03 Service of a summons to witness may be proved by affidavit or certificate as provided by the Act.
10.04 A warrant to arrest pursuant to section 20 of the Magistrates Court Act shall be in the form set out in Form No 12.
10.05 A notice or warrant pursuant to section 23 of the Magistrates Court Act shall comply with Forms No. 13 and 14 respectively.
10.06 The Court may require an applicant under section 20 (1) of the Magistrates Court Act to tender appropriate travelling and sustenance expenses to the person to whom the summons is to issue. The Court may also order the applicant to pay any other reasonable expenses incurred in meeting the requirements of a witness in complying with a summons including the cost of producing evidentiary material to the court.
10.07 Where a person fails to comply with a summons under s.20(1) of the Magistrates Court Act, the Court may decline to issue a warrant to have that person arrested and brought before the Court, where at the time of the service of the summons there was not tendered to the person, appropriate travelling and/or sustenance expenses and/or other reasonable expenses to compensate the person for the expense of complying with the summons.
11.00 CHALLENGE TO CLASSIFICATION OF OFFENCE.
11.01 A challenge pursuant to section 5(8) of the Act must be made and determined before the matter is given a trial date.
12.00 COMPLAIN
T14.00 PENALTY MANAGEMENT 14.01 A notice under section 27c(5) or section 62b(8) of the Act shall comply with Form No 18.12.01 A complaint reduced to writing shall comply with Form No. 1.
12.02 Subject to Rule 12.04, the complainant (or other duly authorised person) may make a complaint by stating the matter of complaint to a witness who must be a Registrar, Deputy Registrar or Justice of the Peace.
12.03 The complaint when reduced to writing must be
(i) signed by the complainant (or other duly authorised person), and, subject to Rule 12.04
(ii) signed and dated by the witness.
12.04 A "public authority" or "public officer" (as defined in section 57a of the Act) or a legal practitioner may make a complaint in writing on signing and dating it without appearing before a witness.
12.05 Where a complaint is made by a police officer in the execution of his duty the complaint and proceedings thereon may be entitled "Police v ...... ".
12.06 Where a complaint is made by a "public authority" (as defined in section 57a of the Act) the complaint and proceedings thereon may be entitled " (Name of public authority) v.........".
12.07 A complaint, other than a complaint filed under Rule 28, must be filed in the Court within seven days of being made unless that is not practicable.
12.08 A copy of the complaint shall be given to the defendant on or before the time of the first Court appearance.
12.09 A complaint for contempt of Court may be made by a judicial officer as provided for in Rule 12.04.
12.10 A complaint shall comply with Rule 15.0
312.11 It shall be sufficient signature under rule 12.04 for a "public authority", a "public officer" (as defined in section 57A of the Act or a legal practitioner to cause a facsimile of their signature to be affixed to the complaint.
13.00 PLEA OF GUILTY WITHOUT APPEARANCE - SUMMARY OFFENCE
13.01 A complaint and summons under section 57a of the Act shall comply with Form No 3.
13.02 A written notice of intention to plead not guilty under section 57a(7a) must be served personally or by post on the Registrar at least three clear days before the date of appearance in the summons and at the address stated therein.
14.02 Where a person has had a pecuniary sum imposed upon them, the Manager, Penalty Management, shall, within 7 days of the imposition, serve either personally or by post on the defendant a notice:
(a) if the defendant has, on the day that the pecuniary sum was imposed entered into a written arrangement pursuant to section 64 of the Criminal Law (Sentencing) Act, complying with form 55; or
(b) in any other case, complying with Form 18.
14.03 A reminder notice pursuant to section 65(1) of the Criminal Law (Sentencing) Act shall comply with Form 56, being a form approved by the Minister.
14.04 A summons issued to a debtor pursuant to Section 66 of the Criminal Law (Sentencing) Act shall comply with Form 57.
14.05 A summons issued to person other than a debtor pursuant to Section 66 of the Criminal Law (Sentencing) Act shall comply with Form 58.
14.06 A warrant issued pursuant to Section 66(4) of the Criminal Law (Sentencing) Act shall comply with Form 71, being a form approved by the Minister.
14.07 A notice pursuant to section 67(1) of the Criminal Law (Sentencing) Act shall comply with Form 59, being a form approved by the Minister.
Orders suspending driver’s licence and restricting business with Registrar of Motor Vehicles.
14.08 An order suspending a debtor’s driver’s licence pursuant to section 70E of the Criminal Law (Sentencing) Act made in conjunction with an order restricting a debtor from transacting business with the Registrar of Motor Vehicles pursuant to section 70F of the Criminal Law (Sentencing) Act shall comply with Form 60.
14.09 An order restricting a debtor from transacting business with the Registrar of Motor Vehicles pursuant to Section 70F of the Criminal Law (Sentencing) Act made without an order suspending a debtor’s licence pursuant to section 70E of the Criminal Law (Sentencing) Act shall comply with Form 61.
14.10 Where an order under this Rule is cancelled, the Manager, Penalty Management shall forthwith notify, in writing, both the debtor and the Registrar of Motor Vehicles that such an order has been cancelled.
Orders for seizure and sale of land or personal property
14.11 A warrant to enforce an order pursuant to section 70G(1) of the Criminal Law (Sentencing) Act shall comply with Form 62.
14.12 A notice pursuant to section 70G(5) of the Criminal Law (Sentencing) Act shall comply with Form 63.
14.13 A notice pursuant to section 70G(11) of the Criminal Law (Sentencing) Act shall comply with Form 64 and shall be given to the Manager.
14.14 A notice referred to in Rule 14.13 may be:
(a) given to the authorised officer holding an order for sale of the property; or
(b) delivered to the office of the Manager.
14.15 Upon receipt of a notice referred to in Rule 14.13, the Manager shall make application to the court. Such an application shall:
(a) comply with Form 65;
(b) be lodged in the criminal registry of the Magistrates Court;
(c) have a copy of the notice attached to it, and be served on the debtor and the person claiming an interest in the property; and
(d) be listed for first mention as soon as practicable, but in any event within 5 working days.
14.16 Pending hearing of the application any seized property, the subject of such an application, shall not be disposed of, but held at such place and in such a manner as the Manager directs.
Garnishee orders
14.17 Where the Registrar makes an attachment order pursuant to section 70H(I) of the Criminal Law (Sentencing) Act without notice to the garnishee or the debtor (or both), the order shall be an interim order complying with Form 66, and:
(a) the order will, upon service of the garnishee, operate to restrain the garnishee from dealing with money to which the order relates until both the debtor and the garnishee have had an opportunity to be heard in the proceedings;
(b) the Registrar must adjourn the consideration of the order to a date, time and place fixed by the Registrar to give the debtor and the garnishee an opportunity to be heard; and
(c) the Registrar must serve the interim order and notice of the adjourned hearing on a garnishee or judgment debtor who was not present when the order was made at least 4 days before the adjourned date.
14.18 On proof of service of any document required to be served under rule 14.17, the Registrar may proceed in the absence of a garnishee or a judgment debtor.
14.19 An order for attachment, which is confirmed or varied at an adjourned hearing in the absence of a garnishee, must be served forthwith by the Registrar on the garnishee.
14.20 An attachment order made pursuant to section 70H(1) of the Criminal Law (Sentencing) Act after notice to the debtor and garnishee shall comply with Form 67.
14.21 The Registrar may vary or revoke an attachment order on the Registrar’s application, or on the application of a debtor or a garnishee. Such an application shall comply with Form 72.
14.22 The application must be served on the other parties at least 4 clear days before the date fixed for the hearing of the application.
14.23 The Registrar must not vary or revoke an order for attachment, unless there are material facts or circumstances that have changed since the attachment order was made.
Reconsideration of means to pay Pecuniary Sum
14.24 A remission of a matter to a Court for reconsideration under section 70I of the Criminal Law (Sentencing) Act shall comply with Form 68.
Review of Penalty Enforcement Orders
14.25 An application to the Registrar for review of an order of an authorised officer pursuant to section 70M of the Criminal Law (Sentencing) Act shall comply with Form 69.
14.26 Such an application shall be made within 14 days of the debtor being given notice of the order.
14.27 The Registrar may entertain an application made out of time if the Registrar thinks good reason exists for doing so.
14.28 The Registrar may hear and determine an application for review in the absence of the applicant, or by telephone, videolink or such other means as the Registrar thinks appropriate.
Appeal against decision of Registrar
14.29 An appeal against a decision of a Registrar pursuant to section 70N or 71AB of the Criminal Law (Sentencing) Act:
(a) shall comply with form 70;
(b) shall be accompanied by a detailed summary of the payment history of the appellant, and reasons for the decision of the authorised officer and the Registrar.
14.30 Such an appeal shall be made within 14 days of the debtor being given notice of the order.
14.31 The Court may entertain an application made out of time if it thinks good reason exists for doing
so. 15.00 NOTICE BY PROSECUTION OR COURT BEFORE IMPOSITION OF PENALTY 15.01 When the Court is contemplating making an order that a defendant be disqualified from holding or obtaining a driver's licence and notice is required pursuant to Section 62c(2) or Section 27c(3) of the Act, the notice shall comply with Form No 15.15.02 A notice pursuant to Section 62c(2) or Section 27c(3) of the Act, other than a notice to which Rule 15.01 applies, shall comply with Form No 16.
15.03 Where a complainant or informant seeks an order in the
nature of forfeiture, compensation, additional penalty or destruction, the
complaint or information must so state.
15.04 A summons under section 168 (2) of the Road Traffic Act 1961, shall comply with Form No. 15A.
16.00 PROOF OF PREVIOUS CONVICTIONS
16.01 A notice under section 62d of the Act shall comply with Form No 17.
17.00 APPLICATION TO SET ASIDE
17.01 An application under section 76a of the Act shall comply with Form No 19 or be in a form that appears on the reverse of Forms No 15 or 18.
17.02 A copy of the application shall be served on the other party.
17.03 Service and proof thereof shall be effected as for notices.
17.04 Upon the filing of the application the Registrar shall notify the parties of a hearing date and time.
18.00 RESTRAINING ORDERS, PAEDOPHILE RESTRAINING ORDERS, SUPPLEMENTARY FIREARMS ORDERS AND FOREIGN RESTRAINING ORDERS
18.01 A complaint for a Restraining Order pursuant to Section 99 shall comply with Form No 28.
18.02 A summons to a defendant on a complaint for a Restraining Order pursuant to Section 99 shall comply with Form No 29.
18.03 A complaint for a Restraining Order pursuant to Section 99AA shall comply with form No 28A.
18.04 A summons to a defendant on a complaint for a Restraining Order pursuant to Section 99AA shall comply with Form No 29A.
18.05 A Restraining Order shall comply with Form No 30.
18.06 A Restraining Order made ex parte pursuant to Sections 99 and 99C(2) of the Act and summons to a defendant shall comply with Form No 31.
18.07 A Restraining Order made ex parte pursuant to Sections 99AA and 99C(2) of the Act and summons to a defendant shall comply with Form No 31A.
18.08 An application pursuant to section 99F (1) to vary or revoke a restraining order shall comply with Form No. 32.
18.09 A defendant seeking leave to make such an application shall also file an affidavit setting out details of the substantial change in the relevant circumstances since the order was made or last varied. The Registrar shall serve a copy of the application for leave and affidavit on the complainant by pre-paid post directed to the complainant’s last known address. Should leave to make an application to vary or revoke a restraining order be granted, the Form No. 32 filed shall be treated as the application to vary the order and served with the affidavit. The hearing of the application shall be adjourned to enable the Registrar to serve a copy of the Form 32 on the person or persons for whose benefit the order was made (if they are not the complainant) by pre-paid post directed to their last known address
18.10 An application by a complainant or a person for whose
benefit the order was made, shall be served by the Registrar on the defendant,
the complainant and the person or persons for whose benefit the original order
was made (if not the complainant), by pre-paid post directed to their last known
address.
18.11 An order varying a Restraining Order shall comply with Form No 33.
18.12 An order revoking a Restraining Order shall comply with Form No 34.
18.13 A Restraining Order made after an application by telephone pursuant to Sections 99 and 99B of the Act shall comply with Form No 34A.
18.14 A Restraining Order made after an application by telephone pursuant to Sections 99AA and 99B of the Act shall comply with Form No 34B.
18.15 A copy of the document sent to the Court pursuant to Section 99B(1)(c)(ii) of the Act shall be accompanied by the complaint reduced into writing.
18.16 A request to register a Foreign Restraining Order pursuant to Section 99H of the Act shall comply with the Form No 34C and shall be filed at the Adelaide (Criminal) Registry of the Magistrates Court.
18.17 The Principal Registrar shall refer an application to register a Foreign Restraining Order to the Court for consideration of whether directions, adaptions or modifications to the order are necessary or desirable for the effective operation of the order in this State.
18.18 The Principal Registrar shall register the Foreign Restraining Order as adapted or modified pursuant to the previous sub-rule.
18.19 The Principal Registrar shall notify the defendant and the Commissioner of Police of the registration of a Foreign Restraining Order. The notice shall comply with Form No 34D.
18A.00 DOMESTIC VIOLENCE RESTRAINING ORDERS, SUPPLEMENTARY FIREARMS ORDERS AND FOREIGN DOMESTIC VIOLENCE RESTRAINING ORDERS
18A.01 In this Rule "the Act" means the Domestic Violence Act 1994.
18A.02 A complaint for a Domestic Violence Restraining Order shall comply with Form No 37.
18A.03 A summons to a defendant on a complaint for a Domestic Violence Restraining Order shall comply with Form No 38.
18A.04 A Domestic Violence Restraining Order shall comply with Form No 39.
18A.05 A Domestic Violence Restraining Order made ex parte pursuant to s.9(2) of the Act and Summons to a Defendant shall comply with Form No 40.
18A.06 An application to vary or revoke a Domestic Violence Restraining Order pursuant to s.12 of the Act shall comply with Form No 41.
18A.07 An application to vary a Domestic Violence Restraining Order shall contain particulars of the variation sought.
18A.08 An application pursuant to section 12 (1) of the Domestic Violence Act to vary or revoke a domestic violence restraining order shall comply with Form No. 41.
18A.09 A defendant seeking leave to make such an application shall also file an affidavit setting out details of the substantial change in the relevant circumstances since the order was made or last varied. The Registrar shall serve a copy of the application for leave and affidavit on the complainant by pre-paid post directed to the complainant’s last known address. Should leave to make an application to vary or revoke a restraining order be granted, the Form No. 41 filed shall be treated as the application to vary the order and served with the affidavit. The hearing of the application shall be adjourned to enable the Registrar to serve a copy of the Form 41 on the person or persons for whose benefit the order was made (if they are not the complainant) by pre-paid post directed to their last known address.
18A.10 An application by a complainant or a person for whose benefit the order was made, shall be served by the Registrar on the defendant, the complainant and the person or persons for whose benefit the original order was made (if not the complainant), by pre-paid post directed to their last known address.
18A.11 A Domestic Violence Order made after an application by telephone pursuant to s.8 of the Act shall comply with Form No 44.
18A.12 A copy of the document sent to the Court pursuant to s.8(1)(c)(ii) of the Act shall be accompanied by the complaint reduced into writing.
18A.13 A request to register a Foreign Domestic Violence Restraining Order pursuant to s.14 of the Act shall comply with Form No 45, and shall be filed at the Adelaide Registry of the Magistrates Court (Criminal Division).
18A.14 The Principal Registrar shall refer an application to register a Foreign Domestic Violence Restraining Order to the Court for consideration of whether directions, adaptions or modifications to the order are necessary or desirable for the effective operation of the order in this State.
18A.15 The Principal Registrar shall register the Foreign Domestic Violence Restraining Order as adapted or modified pursuant to the previous sub-rule.
18A.16 The Principal Registrar shall notify the defendant and the Commissioner of Police of the registration of a Foreign Domestic Violence Restraining Order. The notice shall comply with Form No 46.
19.00 INFORMATION
19.01 An information shall be reduced to writing and comply with Form No 4.
19.02 The informant in person may lay an information by stating the matter of information to a witness who must be a Registrar, Deputy Registrar or Justice of the Peace.
19.03 The information when reduced to writing must be -
(i) signed by the informant,
(ii) signed and dated by the witness.
19.04 A "public authority" or "public officer" (as defined in section 57a of the Act) or a legal practitioner may lay an information in writing on signing and dating it without appearing before a witness.
19.05 Where an information is laid by a police officer in the execution of his duty the information and proceedings thereon may be entitled "Police v................".
19.06 Where an information is laid by a "public authority" (as defined in section 57a of the Act) the information and proceedings thereon may be entitled " (Name of public authority) v.............".
19.07 An information must be filed in the Court within seven days of being laid unless not practicable.
19.08 An information shall state as to each charge whether it is a major indictable, minor indictable or summary offence.
19.09 A copy of the information shall be given to the defendant on or before the time of the first Court appearance.
19.10 An information shal
l comply with Rule 15.03.19.11 It shall be sufficient signature under rule 12.04 for a "public authority", a "public officer" (as defined in section 57A of the Act) or a legal practitioner to cause a facsimile of their signature to be affixed to the information.
20.00 PRELIMINARY EXAMINATION
20.01
The prosecutor shall file and serve the documents specified in section 104 (1) (a)
within such period not exceeding 13 weeks as the Court at the defendant’s
first appearance before the Court may specify.
20.02 The defendant must, not later than 7 working days prior to the date appointed by the Court for the defendant to answer the charge, give notice in writing to the Court and to the prosecution of the witnesses in relation to whom application to examine orally will be made, and a brief outline of the reasons for which they are required.
20.03 A statement referred to in s.104(3)(a) of the Act, must be verified as follows:
"This statement consisting of ... page/s signed by me is true to the best of my knowledge and belief. I know that this statement is to be used for the purposes of a prosecution and that if it contains material which I know to be false or misleading, I will be guilty of an offence.
20...Dated the ..... of ..........
Signature .............
Witnessed by .......... (name) of .......... (address)
Signature of Witness .........."
20.04 The documentary material required to be filed by the prosecution pursuant to sec. 104 of the Act shall be:
(i) in triplicate
(ii) accompanied by a document:
(a) containing the names of the witnesses providing each statement;
(b) identifying exhibits and other evidentiary material
21.00 ELECTION
21.01 The form of election pursuant to section 103(2) of the Act shall comply with Form No 8.
21.02 The defendant shall be provided with a form of election -
(a) where the defendant is served with a summons, at the time of service of the summons.
(b) In any other case when the defendant first appears before the Court.
21.03 An election is made by filing a copy of the information to which the election relates with duly completed form of election annexed thereto.
21.04 Unless an election has been sooner made, the prosecution shall, upon the request of the defence or direction of the Court, provide the defence with a summary of the evidence in support of each charge.
21.05 A request for a summary of evidence must be made not later than three weeks after the first appearance of the defendant before the Court.
21.06 A summary of evidence shall be provided within three weeks of the request being made or a direction given.
21.07 An 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 before the Court.
21.08 Notwithstanding any other provision of this rule, an election may not be made after a matter has, with the consent of the defendant, been set for trial.
21.09 When a defendant makes an election the provisions of Rule 20 apply mutatis mutandis as if the election had been made at the first appearance of the defendant before the Court.
21.10 The Registrar shall notify the prosecutor of the filing of an election.
21.11 If an election is made it must be made with respect to all the charges in the information unless the Court orders otherwise.
21.12 Except for sub-rule 21.11 this Rule does not apply to an election made pursuant to section 107(3)(b)(ii) of the Act.
22.00 WRITTEN PLEA OF GUILTY WHERE INFORMATION LAID
22.01 A written plea pursuant to section 105(1)(a) of the Act shall comply with Form No 9.
22.02 A written plea can only be made if it is a plea of guilty to all charges.
22.03 The defendant shall be provided with the form at the time the defendant is provided with a copy of the information.
22.04 The form shall be signed by the defendant in the presence of a solicitor who shall certify that the defendant has had legal advice before signing the form.
22.05 If the information does not include a major indictable offence the written plea must be accompanied by a duly completed form of election.
22.06 Upon due completion of the form pleading guilty to all charges the defendant shall return it with a copy of the Information to which it relates by delivering it or posting it to the Court at the place indicated in the form so that it reaches the court :
(a) if the defendant does not wish to attend the date fixed for attendance - at least two clear days before that date.
(b) Subject to (a) at any time before completion of the preliminary examination.
22.07 A defendant who does not appear after duly pleading guilty in writing shall be informed of the outcome by the Registrar by service on the defendant or the defendant's representative of a notice which shall comply with Form No 20.
22.08 Service of the notice may be by post.
22.09 A copy of the notice endorsed with the manner of service shall accompany the documents to be forwarded to the Director of Public Prosecutions.
22.10 The Registrar shall inform the prosecutor of the receipt of a written plea of guilty.
NOTICE UPON COMMITTAL
23.01
The written statement referred to in section 107 (5) of the Act shall, in the case of an information being prosecuted by the Director of Public Prosecutions of South Australia, comply with Form No. 21A.23.02
The written statement referred to in section 107 (5) of the Act shall, in the case of an information being prosecuted by the Director of Public Prosecutions for the Commonwealth, comply with Form No. 21B.24.00 PROCEDURAL PROVISIONS - C.L.C.A.
24.01 The following provisions of the Criminal Law Consolidation Act 1934 apply (with necessary adaptations and modifications) to the trial or sentencing of a person charged with a minor indictable offence :
So much of rule 6 of Schedule 3 as relates to the naming of the owner of property, and rule 10 of Schedule 3.
25.00 ORDER OF COMMITTAL
25.01 An order of committal for trial or sentence shall comply with Form No 10.
25.02 A Warrant remanding a defendant for trial or sentence to a superior Court shall comply with Form No 7.
26.00 PRE-TRIAL PREPARATION
26.01 Prior to any matter being listed for summary trial the parties must have ascertained the precise matters in issue both as to fact (in detail) and law so as to :
(a) fully explore the possibility of disposing of the charge other than by way of trial;
(b) enable the duration of the hearing to be estimated as accurately as possible,
(c) determine what evidence if any may be proved by affidavit;
(d) facilitate the course of the trial,
and shall inform the Court as to each of the above.
26.02 To the extent necessary to comply with this Rule the parties must confer fully and frankly.
26.03 Prior to a matter being set down for hearing the defence must give notice to the prosecution if evidence of alibi may be called. The notice must give details of the proposed evidence including the name and address of the witnesses.
26.04 Insufficient compliance with this Rule must be taken into account on the question of costs.
26.05 To ensure compliance with Rule 8 and this Rule the Court may on notice to the parties require that they attend a pre-trial conference.
26.06 A pre-trial conference may be presided over by such person as the Court may nominate.
26.07 Nothing said by or on behalf of a defendant at a pre-trial conference and no failure by a defendant or a defendant's representative to answer a question at a pre-trial conference shall be used in any subsequent trial or shall be made the subject of any comment at that trial.
26.08
Where in the course of any criminal proceedings:
(a)
a person seeks separate trials of different charges alleged against him or her
in the same complaint or information;
(b)
a person seeks a separate trial from that of another person and charged in the
same complaint or information;
(c)
a party desires to make an application which, if granted, would have the effect
of postponing or delaying a trial which has been listed for hearing;
(d)
a Magistrate directs that a written application should be made,
the application shall be made by issuing and serving an application in Form No. 23.
26.09
Where an application is made under Rule 26.08 it shall state:
(a)
the order or orders sought;
(b)
sufficient particulars of the grounds relied upon to enable any other party to
have proper notice of whether the calling of evidence will be necessary in order
to resolve the issues raised;
(c)
the nature of any question of law sought to be raised.
26.10
An application under Rule 26.08 shall be filed and served on all other parties
not less than 14 days prior to the date fixed for the hearing of the trial in
such proceedings.
26.11
Subject to any Act and these Rules, on the filing of an application under Rule
26.08, the Registrar must fix a date, time and place for the hearing of the
application and give at least 21 days notice of the hearing by providing a copy
of the application to the person(s) nominated by the applicant to be the
person(s) to be served.
27.00 SUMMONS TO DEFENDANT
27.01 Unless otherwise provided a summons to a defendant shall comply with Form No.2, Form No.3, Form No.5 or Form No.5A as the case may be.
POLICE DISQUALIFICATION
28.01 Where a member of the police force gives a person a notice of immediate licence disqualification under section 47IAA(2) of the Road Traffic Act 1961 then the member must cause a complaint to be made as soon as reasonably practicable about the offence to which the notice relates and any associated offences and, subject to this rule, the complaint must be filed with the court within seven days of the notice being given. The complaint must note the fact that a notice of immediate licence disqualification or suspension has been given.
28.02 An application to have the disqualification or suspension lifted or reduced under section 47IAB shall comply with form 79.
28.03 Once an application to have the disqualification or suspension lifted or reduced is filed it shall be listed for directions before a magistrate immediately and if no magistrate is available in the registry where it is filed the directions hearing may be heard by a magistrate by telephone.
28.04 The registrar must advise the criminal justice section of SAPOL who deal with matters in the registry when and where the directions hearing will be heard but if the police do not attend the directions hearing it may be heard in the absence of the police.
28.05 At the directions hearing the magistrate may appoint a time and place for hearing the application and give directions as to the service of the application and notice of the hearing and other matters. Unless otherwise ordered the hearing should be in the registry where the complaint about the offence to which the notice relates would normally be filed.
28.06 Service on the criminal justice section of SAPOL who deal with matters in the registry where the application will be heard shall be deemed to be service on the Commissioner of Police.
28.07 Once the Commissioner of Police is served with an application, the complaint, if not already filed with the court, must be filed as soon as reasonably possible and an apprehension report detailing the police case must be available at the hearing of the application.
28.08 When hearing an application the court may take any failure to provide a complaint or an apprehension report into account in assessing the merits of the application.
28A.00 WHEEL CLAMPING; SEIZURE OF MOTOR VEHICLE
28A.01. In this Rule "the Act" means the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007.
28A.02. An application made pursuant to s 7, s 12 or
s 21 of the Act shall comply with Form No. 83.
28A.03. An order to extend a clamping period or to impound
or forfeit a motor vehicle shall comply with Form No. 84.
28A.04. An order for relief shall comply with Form No. 85.
28A.05. An application for a warrant to seize a motor
vehicle pursuant to s 17 must comply with Form No. 86.
28A.06. A warrant to seize a motor vehicle must comply with
Form No. 87.
28A.07. A warrant to seize a motor vehicle after a
telephone application must comply with Form No. 88.
28A.08. A duplicate warrant made pursuant to s 17(6)(f)
must comply with Form No. 89.
28A.09. An application made under this Act and notice of
the hearing date must be served by the Registrar on all the registered owners of
the motor vehicle, anyone who holds a registered security interest in respect of
the motor vehicle under the Goods Securities Act 1986 and any person
known to the prosecution or credit provider who claims ownership of the motor
vehicle or who is likely to suffer financial or physical hardship as a result of
the making of the order.
28A.10. If an application for relief is made by a credit provider, the application and notice of the hearing date must also be served by the Registrar on the Commissioner of Police (if the motor vehicle is clamped or impounded under Part 2) or the Sheriff (if the motor vehicle is impounded or has been forfeited under Part 3).
29.00 APPLICATIONS
29.01 The jurisdiction of the Court pursuant to section 10 of the Magistrates Court Act 1991 may be invoked on Application complying with Form No 23.
29.02 An Application may be served and service thereof proved in the same manner as for a summons.
29.03 If the Court is satisfied that:
(i) an application has been duly served,
and
(ii) the respondent does not appear at any hearing thereof ,
the Court may hear and determine the application in the absence of the respondent.
30.00 CONTACT INFORMATION
30.01 An address for personal service and the telephone number of the party filing or serving a document must appear on the document unless the Court, a Registrar or Deputy Registrar directs otherwise.
31.00 CONTEMPT - WARRANT
31.01 A Warrant of Commitment for contempt under section 46 of the Magistrates Court Act 1991 shall comply with Form No 24.
32.00 LEGAL REPRESENTATION
32.01 The legal representative of a party to proceedings must inform the Court of that status and of any change therein as soon as practicable.
33.00 PROCEEDINGS BROUGHT FORWARD
33.01 Notwithstanding that proceedings are listed for a future date and time the Court may of its own motion or on the application of a party bring the proceedings forward.
34.00 SUBSTANTIATION ON OATH
34.01 Where it is necessary for a complaint or information to be substantiated on oath before a warrant to arrest can issue it is not necessary that the substantiation be by the informant or complainant.
35.00 AFFIDAVIT EVIDENCE
35.01 In any proceedings before the Court unless the Court directs otherwise any matter may be proved by affidavit without the necessity of calling oral evidence unless the other party objects.
35.02 The party intending to rely on the affidavit must serve the other party with a copy thereof at least 21 days before the hearing together with a copy of this Rule.
35.03 The party upon whom the affidavit is served may object by notice in writing (giving detailed reasons therefor
e) to the party intending to rely on it at least 10 days before the hearing.35.04 Service of the affidavit or notice may be effected by post either on the party or the party's legal representative.
35.05 The manner of service must be endorsed on a copy of the affidavit or notice.
35.06 The Court may order costs against a party unreasonably objecting to the use of an affidavit.
35.07 The Court may if it is not satisfied that a genuine dispute exists between the parties or that compliance with the rules of evidence might involve unreasonable expense or delay direct that certain evidence be given by way of affidavit.
35.08 Where any proceedings before the Court or a Registrar may be dealt with, without notice to any other party, any matter may be proved by affidavit filed in the registry without service on any other party.
36.00 PRACTICE AND PROCEDURE
36.01 Subject to these Rules the practice and procedure of the Court in its Criminal Division shall be that which pertained immediately prior to the commencement of the Justices Amendment Act 1991.
36.02 The Court may direct that any person or persons may attend any hearing by means of a video link or telephone.
36.03 In deciding whether to conduct a court in the manner described in Rule 36.02, the judicial officer constituting the court shall have regard to:
(a) the nature of the proceedings;
(b) the day, or time of day at which they are being conducted;
(c) the location of the various parties;
(d) the urgency of the matter before the court;
(e) the cost and inconvenience in having the person attend before the court;
(f) the health of the person wishing to appear by telephone or video link, or the effect on their health if they were required to attend before the court;
(g) the attitude of the parties to the matter being dealt with in that way;
and
(h) any other matter that the court thinks is relevant.
36.04 A hearing conducted in accordance with Rule 36.02
(a) shall be deemed to have taken place at the place at which the judicial officer constituting the court is, unless the judicial officer orders otherwise; and
(b) need not be open to the public.
ELECTRONIC RECORDS
37.01 The Registrar may keep the record of the Court in an electronic form.
37.02 A minute or memorandum of a conviction or order required to be made by section 70 of the Act may be made, recorded, authenticated and maintained in an electronic form.
38.00 FORMS
38.01 Forms not provided for herein may be prepared at the direction of the Court or by the Registrar on behalf of the Court.
38.02 The party instituting a proceeding or process shall prepare the requisite form and shall provide such number of copies thereof as the Registrar directs.
38.03 Forms under the following sections of the Act shall comply with the corresponding forms set out hereunder:
| Section 57a(7a) | Notice of Hearing |
Form No 35 |
| Section 58 | Warrant of Apprehension |
Form No 6 |
| Sections 59,103 and 112 | Warrant of Remand | Form No 7 |
39.00 ENFORCEMENT OF ORDER AGAINST BODY CORPORATE
39.01 A request for the registration of an Order to which section 188 of the Act applies shall comply with Form No 25.
39.02 Upon registration, such an Order may be enforced as if it were an order of a Court in South Australia 40.00 RELIEF FROM COMPLIANCE WITH RULES40.01 The Court may relieve any party from compliance with the Rules if the justice of the case requires it and on such terms as the Court orders.
41.00 CRIMINAL LAW (SENTENCING) ACT 1988
41.01 In this rule 'the Act' means the Criminal Law (Sentencing) Act 1988.
41.02 The powers of the Court must be exercised by a magistrate in:
* * * * * * * * * * * * * *(i)
(ii) proceedings under section 71(3) of the Act where failure to comply with a community service order is disputed.
(iii) applications under section 71a of the Act.
41.03 A warrant remanding a defendant to the District Court for sentence pursuant to section 19(4) of the Act shall comply with Form No 7.
41.04 Where a court
(a) orders that a defendant enter into a bond, extends or varies a bond in any way, pursuant to the provisions of the Criminal Law (Sentencing) Act;
or
(b) orders that a defendant enters into a recognisance or undertaking of any kind, or extends or varies a recognisance or undertaking or any kind;
the bond, recognisance, or undertaking may be entered into, varied or extended before a Registrar or Justice of the Peace.
41.05 An application to the Court pursuant to s.72(5) of the Act in respect of an order made by an appropriate officer pursuant to sections 65 or 67 of the Act may be made by telephone where:
(a) there is no Magistrate readily available to constitute a Court;
and
(b) an application is made during business hours.
41.06 (i) A person wishing to furnish the Court with a victim impact statement pursuant to s7A of the Criminal Law (Sentencing) Act 1988 (the Act) shall provide such statement in writing either to the Director of Public Prosecutions (the DPP), or to the Officer in Charge of Prosecution Services of South Australia Police (SAPOL) whoever shall have the conduct of the prosecution.
(ii) A copy of the statement shall be provided to the presiding magistrate upon the defendant pleading guilty to, or being found guilty of, the offence or offences to which the statement relates.
(iii) The presiding magistrate shall appoint the time at which the statement will be read to the Court and may refuse to postpone the reading of the statement if the resulting delay would be unreasonable in the circumstances.
(iv) If the person providing the statement is not in the Court when the presiding magistrate gives directions pursuant to Sub-Rule 41.06(iii), the DPP or SAPOL shall advise the person of the time fixed by the Court for the reading of the statement.
(v) Subject to Sub-Rule 41.06 (vi), the person making the statement may amend it at any time prior to the time at which it is read to the Court.
(vi) The presiding magistrate may direct that irrelevant material in the statement not be read out to the Court.
(vii) A person who has furnished a statement in accordance with s7A(1) of the Act may at any time withdraw the statement as a victim impact statement provided pursuant to that section in which event the statement will not be read out to the Court.
(viii) A statement which is withdrawn pursuant to Sub-Rule 41.06(vii) may be furnished to the court by the prosecutor pursuant to s7 of the Act.
41.07
A warrant for the arrest of a person pursuant to section 71 (3) (a)
and section 71 (4) of the Criminal Law (Sentencing) Act 1988, shall comply
with Form No. 78.
41.08 A warrant for the arrest of a person pursuant to section 71 (3) (b) of the Criminal Law (Sentencing) Act 1988, shall comply with Form No. 82.
42.00 BAIL ACT 1985
42.01 In this rule "the Act" means the Bail Act 1985.
42.02 A warrant of arrest under s.18(1)(a) of the Act shall comply with Form No 6.
42A.00 DOG AND CAT MANAGEMENT ACT 1995
42A.01 An application pursuant to sections 47(4), 59 or 61(5) of the Dog and Cat Management Act 1995 shall be made in the Criminal Division of the Court.
43.00 AFFIDAVITS
43.01 An affidavit shall be in accordance with Form 36.
43.02 In this rule the jurat is called "the witnessing clause".
43.03 The body of an affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject matter.
43.04 An affidavit used in interlocutory proceedings may contain statements based on information received and believed by the person making the affidavit to be true with the sources and the grounds thereof.
43.05 Except as provided by sub-rule 43.04, or unless the Court otherwise orders, an affidavit shall contain only such facts as the person making the affidavit is able of his or her own knowledge to prove.
43.06 Where an affidavit is made by two or more persons, it shall have the full name of each person stated in the witnessing clause, or if sworn separately in separate witnessing clauses.
43.07 Where an affidavit is filed on behalf of a corporate party which does not have a solicitor acting for it, the affidavit shall be sworn by a director, secretary or other person duly authorised by the body corporate to make the affidavit on its behalf.
43.08 Where it appears to the witness before whom an affidavit is sworn that the person is illiterate or blind, that witness shall certify in or below the witnessing clause that at the time the affidavit was sworn -
(a) the affidavit was read to the person making the affidavit; and
(b) the person making the affidavit seemed to understand the affidavit.
43.09 Where it appears to the witness before whom an affidavit is sworn that the person is by reason of physical incapacity incapable of signing the affidavit, the person shall certify in or below the witnessing clause that-
(a) the affidavit was read by or to the person making the affidavit
(b) the person making the affidavit seemed to understand the affidavit; and
(c) that the person making the affidavit swore the affidavit.
43.10 Where an affidavit is made by a person who does not have an adequate command of the English language -
(a) the affidavit and the oath to be taken shall be translated to the person making the affidavit by an interpreter into a language which the person making the affidavit understands; and
(b) the interpreter in writing state his/her full name and shall certify in or below the witnessing clause that paragraph (a) has been complied with.
43.11 Where an affidavit is made by:-
(a) an illiterate or blind person;
(b) a person making the affidavit who by reason of physical incapacity is incapable of signing the affidavit; or
(c) a person who does not have an adequate command of the English language,
and the certificate required by sub-rule 43.08, 43.09 or 43.10 has not been provided, the affidavit may not be used unless the Court is satisfied that the affidavit was read or translated to the person making the affidavit, as the case requires, and the person making the affidavit seemed to understand it.
43.12 Subject to sub-rule 43.14, each page of an affidavit shall be signed by the person making the affidavit and the witness before whom it is sworn.
43.13 Subject to sub-rule 43.14, alterations, interlineations or erasures in an affidavit shall be initialled by the person making the affidavit and the witness before it is sworn.
43.14 It shall not be necessary for a person making the affidavit who is physically incapable of signing the affidavit to do so, or to initial alterations, interlineations or erasures but the witness before whom the affidavit is sworn shall initial alterations interlineations or erasures.
43.15 A document to be used in conjunction with an affidavit may be annexed and not exhibited.
43.16 An annexure or exhibit to an affidavit shall bear an endorsement, signed by the witness before whom the affidavit is sworn, that identifies the annexure as the particular annexure referred to in the affidavit.
43.17 An affidavit may, unless the court otherwise orders, be received in evidence notwithstanding any irregularity in form.
43.18 The Court may, at any stage of proceedings, order to be struck out any matter in an affidavit which -
(a) is unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) sets out opinions other than opinions of persons properly qualified to give them.
43.19 An affidavit may be sworn within South Australia before a Registrar, a Deputy Registrar, a Notary Public, a commissioner for taking affidavits in the Supreme Court, a Justice of the Peace for this State, a commissioned office of the South Australian Police Force, an Officer-in-Charge of a Police Station of, or above, the rank of Sergeant or as permitted by the Evidence (Affidavits) Act 1928.
43.20 An affidavit may be sworn outside South Australia before any of the persons specified in Section 66 of the Evidence Act 1929.
44.00 PRACTICE DIRECTIONS
44.01 The Chief Magistrate may issue, vary or revoke a Practice Direction and the practice and procedure of the Court, subject to these Rules, must be in conformity with any Practice Direction.
44.02 The Principal Registrar and each Registrar of the Court must maintain registers of all Practice Directions.
45.00 CUSTODY OF RECORDS
45.01 The Registrar has the custody of all records and proceedings of the Court and of all evidentiary material filed with, or submitted to the Court.
45.02 Subject to the Act, or to an order of the Court, the Registrar shall retain custody of all evidentiary material until the expiration of any relevant appeal period.
45.03 The Registrar may keep a record of proceedings of the Court in electronic form.
46.00 VIDEOLINKS
46.01 This rule applies to proceedings which involve an application for remand, a review of bail pursuant to section 11(9) of the Bail Act 1985 and other classes of proceedings specified by practice direction.
46.02 If a party in proceedings to which this Rule applies is in custody, the proceedings may be conducted by videolink facilities.
46.03 Videolink facilities used pursuant to this Rule must be operated in a manner which ensures two way audio and visual communication between the court room and the person in custody.
46.04 Facilities must be available for private audio communication between a person in custody and the person's representative at the Court.
46.05 No person shall, by any means, listen to, intercept or record any such private communication.
46.06 The room at the custodial institution from which the videolink facilities are being used in proceedings in accordance with this Rule are to be taken as part of the Court premises for the purpose of conducting those proceedings.
46.07 A person present in the room from which videolink facilities are being used in proceedings pursuant to this Rule is taken to be in the presence of the Court.
46.08 Should a party in proceedings to which this Rule applies wish to be brought to the courtroom, notice of not less than 2 working days must be given to the Court.
46.09 Where, in the course of the proceedings, the person in custody indicates a wish to be present in the courtroom, the person will be further remanded and an order made for that person to be brought to the Court not later than the next working day.
46.10 If videolink facilities fail in the course of proceedings, the Court may adjourn the proceedings and may make such other order as is appropriate in the circumstances as if a person present in the room in which the videolink facilities are located were in the presence of the Court.
46.11 Notwithstanding the provisions of this Rule or any practice direction given pursuant thereto, the Court may, in the interests of justice, order that the defendant be brought to the place where the Court is sitting.
47.00 EXPIATION OF OFFENCES ACT 1996
47.01 (i) An application for relief must be accompanied by a clear, legible copy of the expiation notice to which the application relates, or in the absence of the original expiation notice being available, details of the notice provided by the issuing authority.
(ii) A person who is making application for relief must, if requested to do so by a Registrar, provide proof of identity.
47.02 An order may not be made pursuant to s.9(12) cancelling an order for relief until 14 days after the day on which the failure to comply with the order occurred.
47.03 A Notice of Cancelled Relief and Order of Enforcement issued under sections 9(12) and 13(2) shall comply with Form No 47.
47.04 An Application for Review of an Order Cancelling Relief shall comply with Form No 48.
47.05 (i) A Certificate for Enforcement shall comply with Form No 49.
(ii) An issuing authority may, with the approval of the Principal Registrar of the Court, lodge Certificates for Enforcement electronically. In circumstances where approval for electronic lodgement has been given by the Principal Registrar, the data sent to the court need not be formatted in a manner that replicates Form No 49 and may be transmitted in any form and in any manner that is approved of by the Principal Registrar.
47.06 An Order of Enforcement shall provide that no further action will be taken if the amount to which it refers is paid in full within 28 days.
47.07 A Notice of Order of Enforcement shall comply with Form No 50.
47.08 An application for review of an enforcement order pursuant to section 14 of the Expiation of Offences Act shall comply with Form 51.
47.09 Upon receipt of an application the Registrar shall:
(a) notify the issuing authority of the application;(b) set the matter down to be heard by a Magistrate in the absence of all parties not less than 14 days from the date of notification to the issuing authority (the first hearing date).
47.10 If the issuing authority does not notify the Registrar of an objection to the application a Magistrate shall consider the application on the first hearing date. Neither the applicant nor the issuing authority need be present at the time it is considered.
47.11 If the issuing authority notifies the Registrar of an objection as provided in Rule 47.10 or a Magistrate, having considered the application does not intend to grant the application on the basis of the evidence provided with the application, consideration of the application shall be adjourned to later time and date (second hearing date).
47.12 The applicant and the issuing authority shall be notified of the second hearing date.
47.13 At the second hearing the Court may hear and determine the application on the basis of the matters set out in the application and any further evidence or submissions made by or on behalf of the applicant and the issuing authority.
47.14 It shall be sufficient notification for the purpose of this rule if the party is notified in writing, by telephone or by e-mail at the address supplied by the party.
48.00 ORDER FOR THE ATTENDANCE OF A PRISONER AT COURT
48.01 An order pursuant to s.28(2) of the Correctional Services Act shall comply with Form No 13
49.00 CRIMINAL LAW (FORENSIC PROCEDURES) ACT
200749.01 The applicant for a warrant under section 29 of the Criminal Law (Forensic Procedures) Act 2007 must file a copy of the application for the procedure, the order authorising the procedure, and if it was an order of special urgency made under section 18, a note of the time when it was made, the direction under section 29(1) and an affidavit giving details of the identity of the suspect or offender, the notification of the direction given to the suspect or offender and the failure(s) to comply with the direction.
49.02 A Warrant issued under section 29(3) shall comply with Form 74 and must have the order authorising the forensic procedure attached to it.
49A.00
WARRANT – ROAD TRAFFIC ACT 1961
49A.01 An
application for a warrant made pursuant to section 41B of the Road Traffic
Act shall comply with Form 90.
49A.02 A warrant issued pursuant to section 41B shall
comply with Form 91.
49A.03 A duplicate warrant made pursuant to regulation
23A(e) of the Road Traffic (Miscellaneous) Regulations shall comply with
Form 92.
49A.04 When filing an application for a warrant, the
applicant must also file with the court an affidavit verifying the grounds for
the application.
49A.05 When an application for the issue of a warrant is
made by facsimile, the applicant must send an affidavit verifying the grounds
for the application with the application form.
49A.06 If a warrant is issued after an application by telephone or facsimile, the warrant, or a copy of the warrant, the duplicate warrant (if applicable) and the affidavit must be filed in the Court on the next working day. The relevant court registry shall be that closest to the location of the premises which are the subject of the warrant. Should this not be practicable, it shall be that to which the Magistrate is assigned.
50.00 CRIMINAL LAW CONSOLIDATION ACT, DIVISION 8A – MENTAL IMPAIRMENT PROVISIONS
50.01 An order for the detention of a person pursuant to section 269O or 269U of the Criminal Law Consolidation Act 1935 shall comply with Form 73.
51.00 COSTS
51.01 Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful party.51.02 For the purpose of this Rule a successful party includes a party who instigates proceedings that are admitted by plea of guilty, and a party who defends proceedings that are withdrawn or dismissed as a result of no evidence being tendered.
51.03 Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
52.00 PAYMENT OF ADVISORS, ELDERS AND EXPERTS
52.01 The Court may appoint such cultural advisors, Aboriginal elders and experts within any field as it sees fit to advise it in the conduct of its work and pay them in accordance with rates determined by the Principal Registrar from time to time.
53.00 NATIONAL ELECTRICITY LAW AND NATIONAL GAS LAW
53.01 An application for a search warrant issued pursuant to section 21 of the National Electricity Law or section 35 of the National Gas Law shall comply with Form 93.
53.02 A search warrant shall comply with Form 94.
53.02 An application for extension of period of retention made pursuant to section 26 of the National Electricity Law or section 40 of the National Gas Law shall comply with Form 95.
54.00 ANIMAL WELFARE ACT 1985
54.01 An application for a warrant issued pursuant to part 2 shall comply with Form 52.
54.02 A warrant issued pursuant to part 2 shall comply with Form 53.
54.03 A duplicate warrant shall comply with Form 54.
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Effective
from 17 April 2008
Notes:
1
This cost scale is intended for use in making orders as between party and
party.
2
The fees set out in item 1 and 2 are intended to cover all necessary
attendances and preparatory work for a trial (other than attendance at a
pre-trial conference). Where an
attendance is unnecessary as a result of default by one or other party, an order
should be sought and made at that hearing. The fee set out in item 4 or 5 should be used for that
purpose.
|
No. |
Item |
Represented by solicitor |
Represented by non-legally qualified person |
|
1 |
Instructions, including all preparation for trial
and attendances up to, but not including attendance at a Pre Trial
Conference |
$900 |
$225 |
|
2 |
All aspects not otherwise specified from Pre-Trial
Conference to Trial, including proofing witnesses, advice or evidence
and law (solicitor and counsel) and delivering brief to counsel. |
$900 |
$225 |
|
3 |
Attendance at pre-trial conference |
$250 |
$60 |
|
4 |
Attendance at hearing (see note 2 above) |
$90 |
$25 |
|
5 |
Attendance where detailed argument is necessary
(see note 2 above) |