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Understanding Indictable Offences in South Australia

A lawyer can help you decide whether to have a jury trial or, in some cases, whether to have the charge dealt with as a summary offence

Serious crimes in South Australia are known as indictable offences. They carry more severe punishments than summary offences while offering the accused greater protection against an unjust conviction. If you are arrested for or charged with an indictable offence, you should obtain legal advice immediately.

How Do I know if a Crime is An Indictable Offence?

A crime is an indictable offence if you have the right to a jury trial in the District Court or in the Supreme Court. There are two kinds of indictable offences in South Australia. Trials in major indictable offences always take place in the District or Supreme Court. Major indictable offences include the most serious crimes, such as murder, rape, and arson.

Minor indictable offences can be heard in the Magistrate’s Court unless the accused elects to have a jury trial. If the accused makes that election, the case moves to the District Court. If the case stays in the Magistrate’s Court, it is treated as a summary offence. That means the accused loses the right to have a jury decide guilt or innocence, but cannot be sentenced to more than two years imprisonment. If the accused elects to exercise the right to a jury trial in District Court, the accused is exposed to the possible imposition of a more severe sentence.

Should I Have a Jury Trial on a Minor Indictable Offence?

The tradeoff between a lower maximum sentence and a jury trial is one that the accused will need to consider carefully. If the accused has a defence that would appeal to a jury, a lawyer might recommend that the accused risk a longer sentence in order to obtain the benefit of a jury trial. If the defence is questionable or if it might be more appealing to a judge than to a jury, a lawyer might recommend that the case remain in the Magistrate’s Court in order to minimize the sentence that the accused will receive if he or she is convicted.

What Happens if I Am Charged with An Indictable Offence?

Nearly all cases, including those charging major indictable offences, start out in Magistrate’s Court. The Magistrate will consider the issue of bail if the accused has applied for bail. If the accused is charged with a minor indictable offence, the accused will have some time to decide whether to ask for a jury trial in District Court.

If the accused is charged with a major indictable offence, or elects a jury trial for a minor indictable offence, the Magistrate will hold a preliminary examination. The prosecutor will present evidence to the Magistrate to demonstrate that sufficient proof of guilt exists to justify a trial. That proof usually takes the form of written witness statements known as declarations. The Magistrate does not decide whether the prosecution can prove guilt beyond a reasonable doubt, but the prosecution must demonstrate that the accusation has arguable merit.

What happens next?

A trial will eventually be held if the accused wants one. If the accused is charged with a minor indictable offence and remains in the Magistrate’s Court, the trial will be before a judge, following the procedure that applies to summary offences. If the case is heard in District Court or in Supreme Court, the accused is entitled to have a jury determine guilt. In either court, a conviction can occur only if guilt is proved beyond a reasonable doubt.

In other cases, an accused may decide to plead guilty and be sentenced. Whether to plead guilty or to have a trial is a decision best made in consultation with a lawyer who has studied all the evidence in the case.

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