Criminal and Traffic Offences | By Lawyers
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Criminal and Traffic Offences

SA

This publication guides practitioners through criminal and traffic offences in the Magistrates Court of South Australia, intervention orders and Commonwealth offences.

5 Matter Plans

Overview

The Criminal and Traffic Offences commentaries cover all aspects of criminal matters, with an emphasis on criminal procedure and sentencing for summary and indictable offences in the Magistrates Court of South Australia. They cover the key stages from charging, to bail, a defended hearing or a plea of guilty, and sentencing. Practical guidance in preparing for court is included, with detailed commentary on analysing the charge and considering evidence.

The Intervention Order guide covers applying for an order, negotiating, varying and appeals.

The supplementary Commonwealth offences guide assists practitioners in advising and representing clients charged with offences under the Crimes Act 1914 (Cth) and the Commonwealth Criminal Code. The commentary sets out the procedure for summary and indictable Commonwealth offences from bail considerations to sentencing. The possible sentencing options are covered in detail, and there is a very useful table of the Commonwealth offences most frequently encountered.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Also included is 101 Subpoena Answers, which is a useful reference guide.

Precedents in this publication include:

  • Library of initial letters to clients, covering a variety of offences and possible outcomes;
  • Letters to:
    • clients;
    • police;
    • the Crown;
    • third parties, including witnesses and experts;
  • Information sheets for clients explaining the court processes and what to do on the day of the hearing;
  • Attendance notes for every stage.
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5 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Magistrates Court Criminal (SA)
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Subpoena Answers
    • Item icon 101 Costs Answers
    • Folder icon Papers and articles - Litigation
      • Item icon Improving written submissions - A paper by Judge Alan Troy
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
    • Item icon Calculating Penalty Units - All States and Territories
    • Item icon Further information
  • Item icon Overview
    Generally criminal charges, regardless of their seriousness, commence in the Magistrates Court. The exceptions are Youth Court matters and Environment, Resources, and Development Court matters. The Magistrates Court Act 1991, the Criminal Procedure Act 1921, the Joint Criminal Rules 2022, and the ...

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Criminal
    • Item icon To do list - Criminal
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Criminal
    • Item icon Conflict of interest check
    • Item icon Attendance note - Conflict of interest check - Conflict identified
    • Item icon Attendance note - Conflict of interest check - No conflict
    • Folder icon Library of initial letters to client
      • Folder icon Alcohol and driving offences
        • Item icon Initial letter to client - Category 1 PCA 1st offence
        • Item icon Initial letter to client - Category 1 PCA 2nd offence
        • Item icon Initial letter to client - Category 1 PCA 3rd offence
        • Item icon Initial letter to client - Category 1 PCA 4th or subsequent offence
        • Item icon Initial letter to client - Category 2 PCA 1st offence
        • Item icon Initial letter to client - Category 2 PCA 2nd offence
        • Item icon Initial letter to client - Category 2 PCA 3rd offence
        • Item icon Initial letter to client - Category 2 PCA 4th or subsequent offence
        • Item icon Initial letter to client - Category 3 PCA 1st offence
        • Item icon Initial letter to client - Category 3 PCA 2nd offence
        • Item icon Initial letter to client - Category 3 PCA 3rd offence
        • Item icon Initial letter to client - Category 3 PCA 4th or subsequent offence
        • Item icon Initial letter to client - Drive whilst disqualified - First offence
        • Item icon Initial letter to client - Drive whilst disqualified - Second offence
      • Folder icon Assault
        • Item icon Initial letter to client - Assault aggravated offence
        • Item icon Initial letter to client - Assault basic offence
        • Item icon Initial letter to client - Assault causing harm basic offence
        • Item icon Initial letter to client - Assault causing harm aggravated offence
        • Item icon Initial letter to client - Assault causing harm aggravated by use of offensive weapon
        • Item icon Initial letter to client - Assault aggravated by use of offensive weapon
      • Folder icon Prohibited drug offences
        • Item icon Initial letter to client - Supply or administers or possession with intent - cannabis
        • Item icon Initial letter to client - Possession of controlled drug other than cannabis
      • Folder icon Other offences
        • Item icon Initial letter to client - Affray aggravated
        • Item icon Initial letter to client - Affray
        • Item icon Initial letter to client - Carrying graffiti implements
        • Item icon Initial letter to client - Disorderly or offensive behaviour
        • Item icon Initial letter to client - Marking graffiti basic offence
        • Item icon Initial letter to client - Marking graffiti special locations
        • Item icon Initial letter to client - Violent disorder
        • Item icon Initial letter to client - Theft (basic)
    • Item icon Costs management
      Criminal matters should always be the subject of formal engagement and the client entering into a costs agreement. Many practitioners charge a flat fee for pleas of guilty in criminal matters. However, this does not mean that a formal costs agreement is not required. The first or second conference ...

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    • Item icon Costs agreement - SA
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Taking instructions in criminal matters
      It is important to take detailed instructions from the client. Taking full instructions on the simplest plea should rarely take less than half an hour. The same applies to bail applications. If there is no time to take proper instructions at the first interview, then make another appointment to see ...

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    • Item icon Clients in custody
      Prior to arrest South Australian Police may only detain persons and take them into custody if they are arrested – they must either have a warrant or reasonably suspect them of committing an offence. Once arrested a person has certain rights and may be required to participate in certain procedures.

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    • Item icon Police station instructions and advice record
    • Item icon Attendance note - Attending client at police station
    • Item icon Letter to client on bail following attendance at police station
    • Item icon Letter to client refused bail following attendance at police station
    • Item icon Record of interview (ROI)
      If police, or any other kind of investigating officers, wish to conduct an interview with a suspect in relation to an indictable offence they must comply with s 74D of the Summary Offences Act 1953, which requires that an audio visual record of the interview be made if reasonably practical to ...

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    • Item icon ID parade
      There is no obligation for a suspect to agree to take part in an identification parade. The accused has a right to choose whether to participate in an identification parade and it would be very rare that they were required to do so at the police station. Normally the request would come later, when ...

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    • Item icon Enclosure - Court reference information sheet
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Bail
    • Item icon Bail
      Bail can be granted by a bail authority, which includes certain police officers after initial arrest, or a court, either when the accused first appears or at any later stage during the proceedings. Rights, obligations and the basis for any application for bail are contained within the Bail Act 1985.

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    • Item icon Bail agreement
      When bail is granted the client must enter into a written bail agreement under s 6 of the Bail Act 1985, in which they make an undertaking to the Crown that they will attend court unless excused in the agreement or by the court, comply with any bail conditions and, if required, forfeit to the ...

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    • Item icon Bail guarantee
      Section 7 of the Bail Act 1985 provides that any person over the age of 18 can enter into a bail guarantee, being a written agreement to forfeit a sum of money to the Crown if the bailee fails to comply with the conditions, or certain specified conditions, of the bail agreement. A ...

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    • Item icon Presumption in favour or presumption against bail
      Presumption in favour of bail Section 10 of the Bail Act 1985 directs a bail authority to release the applicant on bail, creating a presumption in favour of bail, unless the bail authority considers otherwise. Primary consideration is to be given to the need that the alleged victim may have, ...

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    • Item icon Bail conditions and security requirements
      A bail authority can impose bail with or without conditions, other than the prescribed conditions. Any conditions the court imposes must be recorded in the bail agreement. Section 11 of the Bail Act 1985 provides that certain conditions are part of every bail agreement, being:

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    • Item icon Retainer instructions - Bail application
    • Item icon Client details and verifying identity
    • Item icon Letter brief to counsel for bail application
    • Item icon Letter to guarantor for bail
    • Item icon Letter to client in prison regarding date for bail application
    • Item icon Originating Application - Bail - Application
    • Item icon Originating Application - Bail - Vary or Revoke Bail
    • Item icon Originating Application - Bail - Vary or Revoke Guarantee of Bail
    • Item icon Interlocutory Application for Bail
    • Item icon Interlocutory Application for Review of Bail by Telephone
    • Item icon Interlocutory Application to Vary or Revoke Bail Agreement
    • Item icon Interlocutory Application to Vary or Revoke Guarantee of Bail
    • Item icon Letter to court enclosing bail application
    • Item icon Letter to prosecution enclosing bail application
    • Item icon Letter to client after successful bail application
    • Item icon Letter to client in prison after unsuccessful bail application
    • Item icon Bail procedure
    • Item icon After a bail decision is made
      Attend to the client The lawyer needs to speak to the client, discuss the unsuccessful application and the magistrate’s comments, get instructions and give advice as to the merits of a review and advise what steps can and should be taken next, both procedurally and substantively. The lawyer should ...

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    • Item icon Making a second or subsequent application for bail
      There is no restriction on how many times a person can apply for bail. In practice, however, unless the client's circumstances have changed, it is unlikely that a second or subsequent bail application will succeed. Multiple applications without any change of circumstances can be an abuse of process.

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    • Item icon Application for Review of Bail by Magistrate
  • Folder icon C. Preparations for court
    • Item icon Notice of Acting
    • Item icon Notice of Change of Address for Service
    • Item icon Preparing for the first return date and analysing the charge
      Once the lawyer has been engaged by the client either at the police station or in the office after having been charged with an offence, the lawyer should have obtained the summons if there is one and ideally the Information and a document containing a brief description of the alleged offending, ...

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    • Item icon Actus reus and mens rea
      In South Australian criminal law, as distinct from Federal criminal law, the vast majority of offences still have two basic elements, that is:

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    • Item icon Strict liability and mistake of fact
      Strict liability relates to an offence where the prosecution does not have to prove any mens rea elements. However, there is still an available defence of honest and reasonable mistake of fact. That is, that the person was honestly mistaken, on reasonable grounds, as to certain facts existing and ...

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    • Item icon Absolute liability
      Absolute liability offences are those where the Crown merely has to prove the actus reus and there is no defence of reasonable mistake of fact. An example of this is a parking ticket. All the prosecution has to prove, to succeed on a charge with respect to a parking offence, is that the client is ...

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    • Item icon Charge and plea negotiations
      It may be appropriate to seek instructions, ideally in writing, to enter into charge negotiations in the following circumstances:

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    • Item icon Attendance note - Taking full instructions
    • Item icon Proof of evidence
    • Item icon Attendance note - Preparation of proof
    • Item icon Letter to client sending proof of evidence
    • Item icon Attendance note - Considering amended proof of evidence
    • Item icon Letter to client requesting evidence
    • Item icon Letter to potential alibi witness
    • Item icon Letter to potential witness
    • Item icon Attendance note - Conference with defence witness
    • Item icon Letter to Crown re plea to lesser charge
    • Item icon Letter to Crown re withdrawal of charge
    • Item icon Letter to Crown re pleading to amended facts
    • Item icon Letter to court requesting interpreter
    • Item icon Written instructions to plead guilty
  • Folder icon D. Going to court
    • Item icon CourtSA
      Practitioners need to register for the CourtSA online portal to file documents and manage cases. Registration for the online portal is a simple process via the CourtSA website, which has demonstrations and further details on how to use the portal. Many prescribed forms are smart forms and can only ...

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    • Item icon Caseflow management
      The Magistrates Court takes its caseflow management and parties’ obligations to the court very seriously. Additional adjournments are not granted lightly. Practitioners need to keep in mind, and inform their clients, of the parties’ overarching obligations set out in r 27.1 of the Joint ...

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    • Item icon Attendance note - Brief to counsel
    • Item icon Brief to counsel - Criminal
    • Item icon Example content - Brief to counsel - Criminal
    • Item icon Letter to counsel enclosing brief
    • Item icon Attendance note - Advice on plea
    • Item icon Criminal procedure in the Magistrates Court
      Commencement The client will be brought before the court in answer to an information, information and summons, or warrant.

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    • Item icon First appearance
      The first hearing will always take place at the Magistrates Court identified in the Information – usually, either the one closest to the defendant’s home address or the location of the offences – but an application to transfer to a different location will be considered by the court if appropriate. ...

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    • Item icon Court attendance sheet
    • Item icon Attendance note - Court appearance
    • Item icon Letter to client advising court date
    • Item icon Committal proceedings
      Committal proceedings only apply to major indictable charges, Commonwealth indictable, or minor indictable offences where there is no order to the contrary, or minor indictable charges where the defendant elects to proceed on indictment: see Division 3 of Part 5 of the Criminal Procedure ...

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    • Item icon Request to have matter called on for guilty plea
    • Item icon Further charge and plea negotiations
      If there is an error with the charge, a technical flaw with the prosecution case, one of the charges is inappropriate or unsupported on the evidence, or there are otherwise good grounds for a charge to be withdrawn, amended, or a substitute charge preferred, given the client’s particular ...

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    • Item icon Affidavit
    • Item icon Application to Registrar
    • Item icon Consent to order
    • Item icon Exhibit front sheet
    • Item icon Interlocutory application
    • Item icon Interlocutory application for disclosure of operative's identity
    • Item icon Interlocutory application for hearing by audio or audiovisual link
    • Item icon Interlocutory application for pre-trial special hearing
    • Item icon Summons to Attend and to Produce Documents (Magistrates, Youth and ERD Courts)
    • Item icon Summons to Attend to Give Evidence (Magistrates, Youth and ERD Courts)
    • Item icon Summons to Produce Documents (Magistrates, Youth and ERD Courts)
    • Item icon Attendance note - Reviewing additional prosecution material
    • Item icon Letter to client enclosing prosecution evidence and make appointment for instructions
    • Item icon Letter to client informing of hearing date
    • Item icon Attendance note - Preparation of witness statement
    • Item icon Letter to witness enclosing statement
    • Item icon Letter to counsel enclosing defence witness statements
    • Item icon Letter to witness with arrangements for attendance at hearing
    • Item icon Attendance note - Considering client's previous convictions
    • Item icon Attendance note - Considering custody record
    • Item icon Attendance note - Considering prosecution evidence
    • Item icon Attendance note - Viewing CCTV footage with client
    • Item icon Attendance note - Viewing CCTV footage without client
    • Item icon Attendance note - Viewing client's police interview
    • Item icon Letter to police requesting items not served
    • Item icon Letter to client who failed to attend court - Matter adjourned
    • Item icon Letter to client who failed to attend court - Warrant issued
    • Item icon Written instructions to plead guilty
    • Item icon Importance of an early plea
      An early plea of guilty is a very important mitigating factor on a criminal charge. The court must take into account when passing sentence the fact that the defendant pleaded guilty and when the defendant pleaded guilty. See s 39 of the Sentencing Act 2017 for summary offences or minor ...

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    • Folder icon If required - Library of Joint Criminal Rules forms
      • Folder icon Origination
        • Item icon Notice to Defendant - Commonwealth Indictable Offence
        • Item icon Notice to Defendant - Major Indictable Offence
        • Item icon Notice to Defendant - Minor Indictable Offence
        • Item icon Notice to Defendant - Summary Offence
        • Item icon Notice to Defendant - Summary Offence not Punishable by Imprisonment
        • Item icon Notice to Youth - Indictable Offence
        • Item icon Notice to Youth - Summary Offence
        • Item icon Notice to Youth - Summary Offence not Punishable by Detention
        • Item icon Summary of Allegations
      • Folder icon Service, appearance and representation
        • Item icon Attempted Service Report
        • Item icon Affidavit of Proof of Service
        • Item icon Certificate of Legal Representation
        • Item icon Assurance that Defendant does not Want Legal Representation
        • Item icon Certificate of Proof of Service
        • Item icon Notice of Acting
        • Item icon Notice of Change of Address for Service
      • Folder icon Remand and bail
        • Item icon Application for Review of Bail by Magistrate
        • Item icon Bail Agreement (Adult)
        • Item icon Bail Agreement (Youth)
        • Item icon Bail Agreement Variation (Adult)
        • Item icon Bail Agreement Variation (Youth)
        • Item icon Direction to Surrender Firearms and Ammunition
        • Item icon Guarantee of Bail
        • Item icon Interlocutory Application for Bail
        • Item icon Interlocutory Application for Review of Bail by Telephone
        • Item icon Interlocutory Application to Vary or Revoke Bail Agreement
        • Item icon Interlocutory Application to Vary or Revoke Guarantee of Bail
        • Item icon Order - Interim Intervention Order
        • Item icon Order of Remand or Mandate
        • Item icon Prosecution Response to Bail Application
        • Item icon Report Request Form - Bail Enquiry (Home Detention) Report
        • Item icon Report Request Form - Generic Report
        • Item icon Summons for Contempt or Breach of Condition
        • Item icon Warrant of Apprehension - Contempt or Breach of Condition
        • Item icon Warrant of Apprehension of Defendant
        • Item icon Warrant of Remand or Mandate
      • Folder icon Guilty pleas
        • Item icon Information for arraignment on committal for sentence
        • Item icon Request to have matter called on for guilty plea
        • Item icon Written guilty plea to summary offence
      • Folder icon Election or order about court or forum
        • Item icon Application for Youth to be dealt with as an adult
        • Item icon Consent to sentencing for major indictable offence in Magistrates Court
        • Item icon Election for trial by Judge alone
        • Item icon Election for trial in District Court
        • Item icon Election to be dealt with as an adult (Youth Court)
        • Item icon Revocation of election for trial by Judge alone
      • Folder icon Disclosure, notices and objections
        • Item icon Defence case statement
        • Item icon Evidentiary material brief
        • Item icon Notice of intention to adduce alibi evidence (Higher Courts)
        • Item icon Notice of intention to adduce expert evidence (Higher Courts)
        • Item icon Notice of notifiable offence
        • Item icon Notice of objection to discreditable conduct evidence
        • Item icon Notice of priority proceeding
        • Item icon Prosecution case statement
        • Item icon Prosecution response to defence case statement
      • Folder icon Pretrial applications, hearings & orders
        • Item icon Affidavit
        • Item icon Application to Registrar
        • Item icon Consent to order
        • Item icon Exhibit front sheet
        • Item icon Interlocutory application
        • Item icon Interlocutory application for disclosure of operative's identity
        • Item icon Interlocutory application for hearing by audio or audiovisual link
        • Item icon Interlocutory application for pre-trial special hearing
        • Item icon List of authorities
        • Item icon Notice from court
        • Item icon Notice of hearing
        • Item icon Notice of objection
        • Item icon Order
        • Item icon Record of outcome - Order
        • Item icon Summary of argument
        • Item icon Written submissions
      • Folder icon Procuring evidence
        • Item icon Letter of Request
        • Item icon Summons to Attend and to Produce Documents (Magistrates, Youth and ERD Courts)
        • Item icon Subpoena to Attend and to Produce Documents (Supreme and District Courts)
        • Item icon Summons to Attend to Give Evidence (Magistrates, Youth and ERD Courts)
        • Item icon Subpoena to Attend to Give Evidence (Supreme and District Courts)
        • Item icon Summons to Produce Documents (Magistrates, Youth and ERD Courts)
        • Item icon Subpoena to Produce Documents (Supreme and District Courts)
        • Item icon Summons to Produce Person in Custody
        • Item icon Warrant of Apprehension of Witness
        • Item icon Warrant to Produce Person in Custody
      • Folder icon Committal
        • Item icon Notice of intention to assert no case to answer
        • Item icon Notice requesting oral examination of witness in committal proceedings
        • Item icon Notice to defendant committed for sentence in Supreme Court or District Court
        • Item icon Notice to defendant committed for trial in Supreme Court or District Court
      • Folder icon Sentencing process
        • Item icon Notice of intention to allege previous convictions
        • Item icon Notice to Defendant of penalty hearing
        • Item icon Prosecution Summary of Proposed Factual Basis for Sentencing
        • Item icon Report request form - Community service assessment report (Adult defendant)
        • Item icon Report request form - Community service assessment report (Youth)
        • Item icon Report request form - Drug and alcohol assessment report (Adult defendant)
        • Item icon Report request form - Drug and alcohol assessment report (Youth)
        • Item icon Report request form - Generic report
        • Item icon Report request form - Medical report
        • Item icon Report request form - Pre-sentence report (Adult defendant)
        • Item icon Report request form - Pre-sentence report (Youth)
        • Item icon Report request form - Psychiatric report (Adult defendant)
        • Item icon Report request form - Psychiatric report (Youth)
        • Item icon Report request form - Psychological report (Adult defendant)
        • Item icon Report request form - Psychological report (Youth)
        • Item icon Sentencing material
        • Item icon Summons to third party to attend penalty hearing
      • Folder icon Conviction sentence
        • Item icon Case Stated
        • Item icon Certificate for Victim of Identity Theft
        • Item icon Certificate of Trial Judge
        • Item icon Child Protection Restraining Order and Acknowledgement
        • Item icon Community Service Order and Acknowledgement
        • Item icon Good Behaviour Bond
        • Item icon Guarantee of Bond
        • Item icon Home Detention Order and Acknowledgement
        • Item icon Intensive Correction Order and Acknowledgement
        • Item icon Interlocutory Application for Stating a Case
        • Item icon Intervention Order
        • Item icon Notice for the Payment of Money (Youth Court)
        • Item icon Notice of Intervention Order
        • Item icon Notice of Penalty Imposed
        • Item icon Notice of Prescribed,Disqualification and or Presumptive Disqualification Offence
        • Item icon Notice of Qualifying Offence
        • Item icon Notice that Defendant has been Declared Liable to Supervision
        • Item icon Order
        • Item icon Order - Forfeiture or Impounding of Motor Vehicle
        • Item icon Order - Stating a Case
        • Item icon Paedophile Restraining Order and Acknowledgement
        • Item icon Record of Outcome
        • Item icon Suspended Sentence Bond
        • Item icon Suspended Sentence Obligation Order and Acknowledgement
        • Item icon Undertaking to Complete an Intervention Program
        • Item icon Undertakings by Youth and Guardian
        • Item icon Warrant of Detention
        • Item icon Warrant of Discharge
      • Folder icon Variation
        • Item icon Good Behaviour Bond varied
        • Item icon Interlocutory Application for Set Aside and Re-hearing
        • Item icon Interlocutory Application to Vary or Revoke Order - Intervention Order
        • Item icon Notice of Order - Intervention Orders Act Order
        • Item icon Order - Variation of Obligation and Acknowledgment
        • Item icon Order - Variation or Extension of Community Service Order
        • Item icon Order for Final Variation or Revocation of Intervention or Problem Gambling Order
        • Item icon Order for Interim Variation of Intervention Order
        • Item icon Originating Application to Discharge or Vary Condition of Recognizance Order
        • Item icon Originating Application to Extend a Non-Parole Period
        • Item icon Originating Application to Fix a Non-Parole Period
        • Item icon Originating Application to Vary a Community Service Order or Ancillary Order
        • Item icon Originating Application to Vary or Revoke an Order
        • Item icon Originating Application to Vary or Revoke Condition of or Discharge Bond or Obligation
        • Item icon Suspended Sentence Bond varied
        • Item icon Suspended Sentence Obligation varied
      • Folder icon Appeal & Review
        • Item icon Appeal grounds (part of Notice of appeal)
        • Item icon Cross appeal grounds (part of Notice of cross appeal)
        • Item icon List of authorities
        • Item icon Notice of appeal against conviction, acquittal, antecedent aecision or mental impairment judgment
        • Item icon Notice of appeal against other decision
        • Item icon Notice of appeal against sentence or mental impairment disposition
        • Item icon Notice of appeal from Interlocutory Judgment of Magistrate, Special Justice, Judicial Registrar
        • Item icon Notice of appeal hearing
        • Item icon Notice of appeal hearing (Youth Court)
        • Item icon Notice of cross appeal against other decision
        • Item icon Notice of discontinuance of appeal
        • Item icon Notice of final determination of appellate proceeding
        • Item icon Notice of hearing of application for leave to appeal
        • Item icon Notice of reference on petition of mercy
        • Item icon Notice of review - bail review
        • Item icon Notice of withdrawal of application for bail review
        • Item icon Order
        • Item icon Order (Youth Court interlocutory appeal)
        • Item icon Originating application for reservation of question to Court of Appeal
        • Item icon Record of outcome
        • Item icon Record of outcome (Youth Court interlocutory appeal)
        • Item icon Written submissions
        • Item icon Written submissions of appellant (sentence)
        • Item icon Written submissions of respondent (sentence)
      • Folder icon Enforcement
        • Item icon Order Varying Home Detention Order and Acknowledgement - Adult
        • Item icon Order Varying Home Detention Order and Acknowledgement - Youth
        • Item icon Order Varying Intensive Correction Order and Acknowledgement - Adult
        • Item icon Order Varying Intensive Correction Order and Acknowledgement - Youth
        • Item icon Originating application for enforcement order
        • Item icon Summons to defendant
        • Item icon Undertaking - Contempt
        • Item icon Warrant of Apprehension
        • Item icon Warrant of Commitment - Contempt
      • Folder icon Miscellaneous
        • Item icon Miscellaneous
  • Folder icon E. Summary/minor indictable charges which remain in the Magistrates Court – Guilty plea
    • Item icon Summary or minor indictable charges which remain in the Magistrates Court – Guilty plea
      If the plea is indicated to be guilty, the matter can either immediately proceed to sentence or can be adjourned for such period as may be necessary to obtain all such information, evidence, and reports as may be required for submissions on penalty: r 65.1 of the Joint Criminal Rules 2022. ...

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    • Item icon Plea and mitigation sheet
    • Item icon Instructions to plead guilty
    • Item icon Written guilty plea to summary offence
    • Item icon Defendants with mental impairment
      Consider whether it is appropriate to invoke the processes which exist for defendants with mental impairment that explains and extenuates, at least to some extent, the conduct that forms the subject matter of a summary or minor indictable offence. Pursuant to s 30 of the Sentencing Act 2017, a ...

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    • Item icon Intervention programs and sentencing diversion
      At some Magistrates Courts, after the entry of a plea of guilty, there may be the opportunity for the client to become involved in one of the court intervention programs aimed at rehabilitation as part of a sentencing diversion process. The programs typically run for up to 12 months and ...

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    • Item icon Letter to client advising steps to be taken in preparation for plea of guilty
    • Item icon Enclosure - Court reference information sheet
    • Item icon Sentencing material
    • Item icon Court attendance sheet
  • Folder icon F. Summary/minor indictable charges which remain in the Magistrates Court matters – Not guilty plea
    • Item icon Summary/minor indictable charges which remain in the Magistrates Court – Not guilty plea
      Pre-trial conference If the plea is indicated to be not guilty, then the court will typically adjourn the matter for a pre-trial conference. The Joint Criminal Rules 2022 do not specify the length of this adjournment, but usually it is about eight weeks.

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    • Item icon Pre-trial conference
      If the plea is indicated to be not guilty, then the court will typically adjourn the matter for a pre-trial conference. The Joint Criminal Rules 2022 do not specify the length of this adjournment, but usually it is about eight weeks.

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    • Item icon Court attendance sheet
    • Item icon Summary trials
      This includes an indictable matter in the absence of an election. If the lawyer determines there is a viable defence and instructions are received to plead not guilty, the matter will be listed for a pre-trial conference and then a summary trial in accordance with the procedure outlined under Going ...

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    • Item icon Preparation for the trial
      The defence lawyer must prepare, prepare, prepare! Thorough preparation and attention to detail wins cases. When appearing as the advocate at the hearing the lawyer must:

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    • Item icon Summons
      A summons is typically issued in the name of the Commissioner of Police pursuant to s 57 of the Criminal Procedure Act 1921 and is now filed and served using the joint form Information and Summons. It requires the defendant to attend court to answer the charge in an information filed at court, ...

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    • Item icon Summons to Attend and to Produce Documents (Magistrates, Youth and ERD Courts)
    • Item icon Summons to Attend to Give Evidence (Magistrates, Youth and ERD Courts)
    • Item icon Summons to Produce Documents (Magistrates, Youth and ERD Courts)
    • Item icon Letter serving summons to produce
    • Item icon Attendance note - Preparation for hearing
    • Item icon Attendance note - Additional preparation for hearing
    • Item icon Attendance note - Preparation for adjourned hearing
    • Item icon Letter to client found guilty - Adjourned for sentence
  • Folder icon G. Summary trials
    • Item icon Preparation for the trial
      The defence lawyer must prepare, prepare, prepare! Thorough preparation and attention to detail wins cases. When appearing as the advocate at the hearing the lawyer must:

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    • Item icon Summary of argument
    • Item icon Written submissions
    • Item icon List of authorities
    • Item icon At the trial
      Before the trial starts It is always a good idea to speak to the prosecutor before the hearing. The lawyer can phone them from about 8.30 am or see them just before court. The lawyer will want to know if all the prosecution witnesses are available and if they are generally ready to proceed. ...

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    • Item icon Court attendance sheet
  • Folder icon H. Sentencing in the Magistrates Court
    • Item icon Sentencing options
      The Sentencing Act 2017 contains the sentencing options for adults in all courts. Unless otherwise stated, all references to legislation in this section of this guide are to that Act. Chapter 7 of the Joint Criminal Rules 2022 deals with sentencing procedure, including some specific orders, ...

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    • Item icon Sentencing discounts
      Sentences can be reduced for early pleas of guilty. See ss 39, 40, and Discounts on sentence for early pleas of guilty. Sentence reductions can also apply for co-operation with law enforcement agencies: s 37. Co-operation must relate to serious and organised criminal activity and be ...

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    • Item icon Imprisonment
      Section 10 of the Sentencing Act 2017 provides that a court must not impose a sentence of imprisonment on a defendant unless the court decides that the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or it is required for the purpose of ...

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    • Item icon Custodial sentences
      Home detention Section 71 provides that, the court having imposed a sentence of imprisonment and decided not to suspend the sentence under Division 2 of Part 4 and considering that the defendant is a suitable person, may order that the person serve the sentence on home detention. Per ...

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    • Item icon Non-custodial sentences
      Conviction with no penalty imposed or dismissal of the charge without recording a conviction Section 23 of the Sentencing Act 2017: Applies to trivial, or trifling, offences and allows the court to find the defendant guilty of the offence but to dismiss the charge without recording any ...

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    • Item icon Example written submissions on 23, 24, 25 or 97
    • Item icon Special sentencing provisions
      Firearms There are special provisions for sentencing firearms offenders: Division 3 of Part 3.

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    • Item icon Fines
      Where an act does not specify a fine, the maximum fine the Magistrates Court may impose is $10,000: s 119 of the Sentencing Act 2017. Where a traffic offence does not specify a penalty, the penalty is a maximum fine of $2,500: s 164A(2) of the Road Traffic Act 1961.

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    • Item icon Letter instructing psychiatrist or psychologist
    • Item icon Enclosure - Part 11 Joint Criminal Rules - Experts
    • Item icon Forfeiture and restitution
      On conviction, the court has the power to make forfeiture or similar orders, for example relating to stolen items, instruments of crime, or proceeds of offences. Consider the relevant legislation:

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    • Item icon Mental health
      Part 8A of the Criminal Law Consolidation Act 1935 makes provision for dealing with defendants who suffer from mental impairment, defined as including:

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    • Item icon Spent convictions
      Generally, the Spent Convictions Act 2009 makes it an offence to disclose certain convictions if they are deemed to be spent. Charges where a court made a finding of guilt but did not record a conviction are deemed to be spent immediately. Other eligible offences are spent after 10 years if no ...

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    • Item icon Originating Application - Spent Convictions Act - Exemption Order
    • Item icon Interstate convictions
      Interstate convictions can be taken into account by the court on sentence, but they do not generally appear on the South Australian criminal history that is provided to the court and they do not have to be voluntarily disclosed. They may be revealed if a report is ordered on an application for bail ...

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  • Folder icon I. Appeals
    • Item icon Appeals
      The lawyer must always advise the client about their appeal rights, including the time limit. Even if the outcome should not be appealed the client needs to know their options – and the costs – as it is their decision.

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    • Item icon Court attendance sheet
    • Folder icon If required - Folder of Appeal & Review forms
      • Item icon Appeal grounds (part of Notice of appeal)
      • Item icon Cross appeal grounds (part of Notice of cross appeal)
      • Item icon List of authorities
      • Item icon Notice of appeal against conviction, acquittal, antecedent aecision or mental impairment judgment
      • Item icon Notice of appeal against other decision
      • Item icon Notice of appeal against sentence or mental impairment disposition
      • Item icon Notice of appeal from Interlocutory Judgment of Magistrate, Special Justice, Judicial Registrar
      • Item icon Notice of appeal hearing
      • Item icon Notice of appeal hearing (Youth Court)
      • Item icon Notice of cross appeal against other decision
      • Item icon Notice of discontinuance of appeal
      • Item icon Notice of final determination of appellate proceeding
      • Item icon Notice of hearing of application for leave to appeal
      • Item icon Notice of reference on petition of mercy
      • Item icon Notice of review - bail review
      • Item icon Notice of withdrawal of application for bail review
      • Item icon Order
      • Item icon Order (Youth Court interlocutory appeal)
      • Item icon Originating application for reservation of question to Court of Appeal
      • Item icon Record of outcome
      • Item icon Record of outcome (Youth Court interlocutory appeal)
      • Item icon Written submissions
      • Item icon Written submissions of appellant (sentence)
      • Item icon Written submissions of respondent (sentence)
  • Folder icon J. Finalising the matter
    • Item icon Letter to client after sentence - Select outcome
    • Item icon Letter to client after sentence - Insert outcome
    • Item icon Letter to client found not guilty
    • Item icon Letter to client - No charges following attendance at police station
    • Item icon Letter to police after no charges for the return of client's property
    • Item icon Letter to police after client found not guilty for return of client's property
    • Item icon Enclosure - Information sheet on criminal records of employees
    • Item icon Example invoice incorporating notification of client's rights - SA
    • Item icon Invoice recital - Criminal
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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