Criminal and Police Matters FAQ

What are the Courts of South Australia?

In South Australia, three Courts hear criminal cases:

  • Magistrates Court
  • District Court
  • Supreme Court

The Court your case will be heard in will depend on the charges laid against you.

Traffic Law

Traffic Law is a complex area and matters can range from drink driving to death by dangerous driving. At Herman Bersee Solicitors we take pride in our attention to detail in these matters, which sets us apart from our peers.

If you are in doubt about whether you will need a lawyer for your traffic matter contact one of our friendly staff and we can advise you on how we may assist you to obtain the best outcome possible. For example, if you have been charged with an offence for which there is a mandatory minimum penalty stipulated by the law, we can assist you by ensuring you receive a penalty as close to that minimum as possible. This is often the case is drink driving or drug driving matters.

Summary Offences

If you are charged with a summary offence you will appear before a Magistrate in the Magistrates Court. Police prosecutors have conduct of these matters. Summary Offences include charges such as minor traffic offences, basic assault, basic property damage and disorderly or offensive behavior.

Minor Indictable Offences

If you are charged with a minor indictable offence you will initially appear before a Magistrate in the Magistrates Court. However if you wish to plead not guilty you may elect to be tried in the District Court by a jury. This is an important decision and you should consult one of our experienced Criminal Law Solicitors if you have been charged with a minor indictable offence. These offences include charges such as gross indecency, aggravated assault and serious criminal trespass.

Major Indictable Offences

If you are charged with a major indictable offence you will initially appear before a Magistrate in the Magistrates Court for the committal process. The Department of Public Prosecution has conduct of these matters. The committal process is where the Magistrate conducts a preliminary examination to determine if there is sufficient evidence to put you on Trial in a higher court. If there is enough evidence, the Defendant is committed to the District or Supreme Court to stand Trial. These offences are the most serious offences such as murder, rape, serious drug trafficking or robbery.

It is during the committal process that your solicitor will attempt to negotiate with the DPP. The committal process is made up of two important events:

  1. Declarations Date – This is when the Department of Public Prosecutions must file with the Court all of the evidence that they seek to rely upon. A copy of all Declarations filed will also be provided to you.
  2. Answer Charge Date – This is the date in which you enter a plea of Guilty or Not Guilty. After you have entered a plea at the Answer Charge date you are committed to the District Court or Supreme Court for Arraignment.

Arraignment is the date where you are formally accepted into the higher Court by entering a plea of Guilty or not Guilty before a Judge in the District Court or Supreme Court. If you enter a plea of Guilty your matter will be listed for submissions and if you enter a plea of Not Guilty your matter will be listed for Trial in front of a jury or Judge.

What are my Arrest Rights?

Police can arrest anybody if they have reasonable belief that they are suspected of committing an offence or is suspected to be about to commit an offence. The arresting officer must make it clear to you by words and actions that you are under arrest and tell you your rights. If you are arrested you should seek legal advice immediately. Generally after you are arrested you will be taken to the nearest police station and charged.

Unless you are specifically excluded from bail then you are entitled to apply for bail. In Australia there remains a presumption in favor of bail and a presumption of innocence until proven guilty. You should be aware however, that the presumption in favor of bail has been eroded in recent times, so that for certain types of offences, for example if you have been charged with committing an offence whilst already on bail, there is a legal presumption against you being granted bail.

What do I do if I am Arrested?

If the police request your name and address you must provide the police with this information. It is an offence to provide false details or refuse to provide your details.

You must not resist arrest. It is an offence to resist to resist arrest or hinder police in attempting to arrest you. In these circumstances you could also be charged with assaulting police if your behavior is overtly aggressive toward arresting police officers.

Usually the best course of conduct is to sit tight and contact professional advice once you have been arrested. Often your words and actions immediately once you have been arrested are critical in whether police are able to prove the charges laid against you.

What will happen after I am Arrested?

(Applying for release on bail)

Once you have been arrested it will be up to the police whether you are granted bail immediately. If you are not granted bail you must be bought before the Magistrates Court as soon as possible to make an application for bail.

In determining whether you get back police and Courts consider:

  1. The seriousness of the charge.
  2. The likelihood of you not appearing in Court.
  3. The likelihood of you committing further offences whilst on bail.
  4. Your background and family.
  5. Your ties with the community in your local area.

What should I do if I am refused Bail?

If you are refused police bail please advise the police or Court staff that you would like an opportunity to speak with someone from Herman Bersee Solicitors. They will then contact us and we can make arrangements to appear on your behalf to make a bail application in the Magistrates Court.

If you are refused Court bail it is also possible to appeal this decision in the Supreme Court. The success of any Supreme Court appeal will depend upon a number of factors.

Our Approach to Bail Applications

Because it is more difficult to get bail after bail has been refused, we believe that an application for bail should not be made unless you and our solicitors are thoroughly prepared. This may involve adjourning your matter until Affidavit evidence is taken to prove employment or hardship, valuation and bank approvals are obtained and acceptable people are available to deposit cash or security. Due to our vast experience in this area we are able to gather all of this evidence in a short period of time.

What happens if I don’t comply with my Bail Conditions?

It is an offence to breach your bail agreement. If you are suspected of breaching your bail agreement the police have the right to arrest you. Where you commit a further offence whilst on bail there is in circumstances a presumption against the police or the Court granting you bail again. If you are arrested for breaching your bail although you may reapply for bail the chance of police or the Court granting you bail for that offence is much lower.

Can I vary my Bail Conditions?

If you are on police bail and you have not yet attended Court then you can vary your bail by attending at the police station where you were arrested and explain what you want to vary and why. If you were granted bail by the Court or your matter has been before the Court on at least one occasion you will need to apply to the Court to vary your bail. You will need to explain what variation you want and why to the Court.

What are Alternative Sentencing Courts?

In the Magistrates Court there are a number of initiatives know as diversion or alternative sentencing Courts. These Courts are designed to address specific types of offending or specific defendant characteristics tailored to rehabilitating offenders.

In total the South Australian Magistrates Court has four diversions Courts namely the Nunga Court, Family Violence Court, Drug Court and Mental Health Diversion Court. In the South East Area and Limestone Coast Area Defendants are able to access the Nunga Court and Mental Health Diversion Court through the Mount Gambier Magistrates Court.

Nunga Court
The Nunga Court is an initiative to sentence Aboriginal Offenders who have entered a plea of Guilty to an offence. An Aboriginal justice officer or senior Aboriginal elders attend the sitting to advise on cultural or community matters. In addition to the Defendant, the Defendant’s family, community members or the victim have a chance to attend and speak to the Magistrate about issues which may assist the Magistrate in sentencing the Defendant.

Mental Health Diversion Court

The Mental Health Diversion Program is designed to assist Defendants where there is a link between there offending behaviors and impaired intellectual or mental functioning arising from:

  • mental illness
  • intellectual disability
  • a personality disorder
  • acquired brain injury
  • neurological disorder

The Mental Health Diversion Program takes approximately 6 months and enables participants to voluntarily address their mental health and disability or offending behavior. The program assists individuals with information and referrals about services which may be of assistance in their local area. During the program, the Magistrate will review the individual’s progress.

At the conclusion of 6 months the Magistrate will hand down a sentence for the offence, taking into account the individual’s level of involvement and progress in the program. This can result in a better sentencing outcome than an individual may otherwise attain in the mainstream Magistrates Court procedures.