Criminal Magistrates Court
This comprehensive step-by-step guide covers all aspects of criminal practice and procedure for summary and indictable offences in the Magistrates Court, with supplementary guides specific to traffic offences and intervention orders.
The guides provide easy to understand coverage of the procedural aspects of criminal law matters, from arrest and charge through to hearing and/or sentencing, including avenues of appeal and costs applications. Written by experienced practitioners, these guides provide practical tips for lawyers new to this area of work and a detailed overview to assist all practitioners, especially those supervising younger lawyers.
Recent updates to this publication can be viewed on Obiter - our blog.
Guides in this publication
MATTER PLAN
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“ Contents ”
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“ South Australia A full commentary on the law and practice as it currently applies to acting for the defendant in criminal proceedings in the Magistrates Court. ”
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“ New South Wales The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’. ”
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“ This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences. A subpoena can also be both a subpoena to ... ”
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“ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
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“ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ... ”
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“ In criminal cases s 225 Criminal Procedure Act 1986 provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe something, ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] NSWSC ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ... ”
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“ If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 contains the provisions relating to subpoenas. In criminal cases subpoenas are covered in s 220 - 232 Criminal Procedure Act 1986. ”
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“ A subpoena is a tactical tool in litigation, but should be employed as part of the overall strategy. A subpoena allows you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”
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“ Applying to the court You can issue a subpoena by attending at the registry, or filing online. You should provide the court with sufficient copies to allow for you, the recipient, the court and all parties to the litigation to receive one. A subpoena can be issued out of any registry of the ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
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“ Always check the specific rules for service for the court where you are issuing the subpoena: see the links to court websites in Power to Issue a Subpoena above or Further Information below. Generally, subpoenas require personal service, unless they are directed to police or other public ... ”
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“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 and s 224 Criminal Procedure Act 1986. Conduct money ... ”
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“ In criminal proceedings, only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986. This effectively means there are no costs sanctions for a criminal defendant issuing numerous and objectionable, ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ... ”
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“ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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“ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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“ When a subpoena is issued the documents are produced to the court, not to you. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court proceedings, will respond to a subpoena ... ”
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“ It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ... ”
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“ Legal Services Commission of South Australia (Duty Solicitor Handbook and Law Handbook) South Australia Director of Public Prosecutions ”
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“ Reference manual – 101 Subpoena Answers Traffic (SA) ”
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“ 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 and the Magistrates Court Rules 1992 (amendment 67) provide the framework ... ”
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“ The relevant legislation for criminal law in South Australia is: Bail Act 1985 ”
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“ Summary charges nearly always stay in the Magistrates Court, unless they go up to a superior court along with other more serious charges. Minor indictable charges generally stay in the Magistrates Court, where there is no jury, however they may go up to a superior court if the defendant elects. ”
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“ It is imperative 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 the solicitor should make ... ”
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“ Criminal matters should always be the subject of formal engagement and the client should be required to enter into a costs agreement, like any other matter. Many practitioners charge a flat fee for pleas of guilty in criminal matters. However, this does not mean that a formal costs agreement is ... ”
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“ Prior to arrest South Australian Police may only detain persons and taken 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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“ 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 Summary Offences Act 1953, which requires that an audio-visual record of the interview be made if reasonably practical to do so. ... ”
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“ There is no obligation for a suspect to agree to take part in an identification parade. The accused has a right to choose whether or not 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 ... ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ... ”
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“ 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 ... ”
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“ When bail is granted the client must enter into a written bail agreement, under s 6 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 Crown any ... ”
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“ 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 of the bail agreement. If the guarantor knows, or reasonably suspects, that ... ”
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“ Presumption in favour of bail Section 10 of the Bail Act 1985 directs a bail authority to ‘release the applicant on bail’, thereby 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 ... ”
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“ Confirm your presence with the sheriff’s officer in the courtroom and confirm that your client is being brought up from the cells or is participating by audio visual link (‘AVL’) or by telephone. Once your matter is called on, the prosecutor will usually then read out the charge/s, the key content ... ”
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“ Attend to the client If bail is refused, the client will either leave the room or disconnect and the lawyer will not generally be able to speak to them again until the lawyer attends at the gaol to see them or they will be taken from the court into custody in the court’s cells below, or perhaps the ... ”
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“ 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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“ In South Australian criminal law, as distinct from Federal criminal law, the vast majority of offences still have two basic elements, that is: the guilty act, called the actus reus; and ”
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“ 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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“ 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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“ It may be appropriate to seek instructions, ideally in writing, to enter into charge negotiations in the following circumstances: To persuade the prosecution that the client will plead to a lesser charge if the more serious charge is withdrawn. This may, for example, mean the difference between the ... ”
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“ Commencement The client will be brought before the court in answer to a Summons, Information or Warrant or in certain instances a joint Summons and Information. ”
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“ Committal proceedings only apply to major indictable charges or minor indictable charges where the defendant elects to proceed on indictment: see Division 3 Part 5 Criminal Procedure Act 1921. The DPP must inform the court and the defence representative in writing as to whether a charge ... ”
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“ Section 38 of the Sentencing Act 2017 provides that where a defendant has not pleaded guilty to an indictable offence, but the sentencing court is satisfied that the defendant complied with all statutory or court ordered requirements relating to pre-trial disclosure and procedures and has otherwise ... ”
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“ The Magistrates Court takes its caseflow management very seriously. Seeking additional adjournments should not be done lightly. The Magistrates Court Rules 1992 (Amendment 67) provide: ”
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“ If there is an error with the charge, or a technical flaw with the prosecution case, or one of the charges is inappropriate or unsupported on the evidence, or there are otherwise good grounds, given the client’s particular circumstances and instructions, for a charge to be withdrawn, or amended, or ... ”
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“ An early plea of guilty is a very important mitigating factor on a criminal charge. The Sentencing Act 2017 commenced on 30 April 2018. However, the sentence reduction provisions of the repealed Act, being s 10A, s 10B and s 10C and Part 2 Division 6 of the Criminal Law (Sentencing) Act 1988, ... ”
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“ In many summary matters the lawyer will need to be prepared to conduct sentencing submissions at the same time as the plea of guilty is entered. It is rare in the Magistrates Court that oral evidence is given during sentencing submissions. The practice is that the vast majority of pleas are ... ”
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“ The client should be advised about the potential benefit of obtaining character references, which may assist with the plea for leniency. References must be specific to the offence. It is suggested that the Character Reference Information Sheet on the matter plan be given to the client, to read and ... ”
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“ A willingness to make recompense to the victim of an offence is an indication of the client’s contrition and remorse and a factor to be taken into account under s 11(1)(g). The lawyer should address this issue with the client before the sentence hearing. In the event of the offence having caused ... ”
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“ The lawyer should consider, prior to going to court, whether the magistrate is likely to require a pre-sentence report under s 17 of the Sentencing Act. If it is likely an adjournment, usually about 2 weeks for defendants in custody, and up to 6 weeks if on bail, will therefore be required, the ... ”
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“ It is important when conducting a plea before the Magistrates Court to be concise. Most courts are very busy, especially on list days and it is therefore important not to waffle or waste time, as it will only irritate the magistrate and an irritated magistrate isn't necessarily going to be ... ”
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“ Includes an indictable matter in the absence of an election. ”
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“ Once the matter is listed for summary trial, the lawyer should turn their lawyer mind to the evidence that will be needed to support the client’s case, the interviewing of any witnesses and the issuing of necessary subpoenas. The initial review of the matter and the formulation of the case theory ... ”
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“ A Summons is issued pursuant to s 57 Criminal Procedure Act 1921 and requires the defendant to attend court to answer the charge in an Information filed at court, where the defendant has not been arrested. A summons is not required where the defendant is already before the court in custody or on ... ”
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“ 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 of the prosecution witnesses are available and if they are generally ready to proceed. There may be some ... ”
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“ The Prosecution case would normally commence with an application seeking an order as to witnesses – that is, an application that witnesses leave the courtroom until they are called to give evidence. Prosecutors will commence the proceedings by making an opening address, although this is usually ... ”
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“ A ‘no case to answer’ submission can be made by the defence at the close of the prosecution case. It is question of law and requires the magistrate to consider whether all of the elements of the offence have been made out. ”
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“ It is possible for a magistrate to give themselves a ‘Prasad’ direction: from R v Prasad (1979) 2 A Crim R 45. A Prasad direction in a jury trial is a direction by the trial judge to the jury informing it of its power to bring in a verdict of not guilty at any time after the conclusion of the case ... ”
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“ At the close of the defence case the parties each make submissions on the evidence and the law. The prosecutor submits first and then the defence. The magistrate will then make their decision, sometimes making it and delivering reasons straight away ‘ex tempore’ but sometimes after a short ... ”
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“ Subject to other sections of the Act, the Magistrates court may award costs in criminal cases as it sees fit: s 189 Criminal Procedure Act 1921. Where a defendant is found guilty (except on a written plea of guilty) in cases prosecuted by police the court can make a costs order against the defendant ”
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“ 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. The considerations to which the court must have regard in determining sentence are set out in s 11. Section 44 of ... ”
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“ Sentences can be reduced for early pleas of guilty – s 39 and s 40: see Discounts on sentence for early pleas of guilty, above). Sentence reductions can also apply for co-operation with law enforcement agencies: see s 37. Co-operation must relate to serious and organised criminal activity and be ... ”
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“ Section 10 provides that a sentence of imprisonment 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 protecting the ... ”
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“ Home detention Section 71 provides that, the court having imposed a sentence of imprisonment and decided not to suspend the sentence under Part 4, Division 2, and considering that the defendant is a suitable person, may order that the person serve the sentence on home detention. Per s 69 it is a ... ”
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“ Section 23 – Conviction with no penalty imposed or dismissal of the charge without recording a conviction 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 conviction, or to record a ... ”
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“ Firearms There are special provisions for sentencing firearms offenders: Part 3 Division 3, ss 49-51. ”
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“ Where an act does not specify a fine, the maximum fine the Magistrates Court may impose is $10,000: s 119. Where a traffic offence does not specify a penalty, the penalty is a maximum fine of $2,500: s 164A(2) Road Traffic Act 1961. ”
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“ Part 8A of the Criminal Law Consolidation Act 1935 makes provision for dealing with defendants who suffer from ‘mental impairment’, defined as including: a mental illness – which is in turn defined as ‘a pathological infirmity of the mind (including a temporary one of short duration)’, or; ”
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“ 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. Lawyers should consider: Criminal Assets Confiscation Act 2005; ”
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“ 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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“ The lawyer must always advise the client about their appeal rights, including the time limit. Even if the lawyer thinks 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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