Following the abolition of the “complaint” instrument in the recent summary procedure shake-up in South Australia (SA), criminal lawyers will need to be more alert to classifying the offence in proceedings they’re commencing or defending.
The replacement of the complaint with a single instrument – an information – for both indictable and summary offences may reduce paperwork, but one tick in the wrong box at the top of the form for the new information may take your client down the wrong procedural path and end up denying them their rights.
Be more vigilant now historical signpost removed
For over a century there has been a separation between the means of charging summary and indictable offences (reflecting the seriousness of the charge) demarcated by the instrument used. Summary offences were commenced on a complaint, and indictable offences (or summary and indictable offences together) were laid on an information.
Each instrument prompted separate procedural requirements, for example an information would activate the right to elect to be tried by jury in the District or Supreme Court, not accorded to offences laid on a complaint, which are heard in the Magistrates Court.
The Summary Procedure (Abolition of Complaints) Amendment Act 2016 (SA), which took effect on 3 October 2017, has dispensed with that distinction, but the different procedural paths and their associated rights that attach to them remain.
“The signpost may have been removed, but the fork in the road is still there”, warns Chad Jacobi, co-author of Summary Justice South Australia and barrister at Edmund Barton Chambers.
Ignore procedure at your peril: recent SA case
So now it’s up to the criminal lawyer to be alert to the significance of the offence they’re charging or defending. And if you get it wrong, there are serious consequences, warns Jacobi.
He draws attention to a recent Supreme Court decision in SA, Brown v RSPCA, which highlights the risk of procedural error leading to the denial of rights – particularly relevant now in the post-reform world where the markers have gone.
Here the appellant succeeded on an appeal against her conviction on a prosecution brought by the RSPCA. It had instituted proceedings on the wrong instrument – on complaint instead of information – with significant consequences.
“Having been charged in the wrong way, by using the wrong procedure, people failed to notice that there was a substantive right that she should’ve been accorded”, explains Jacobi.
The appellant, Ms Brown was charged with several offences concerned with the ill treatment of an animal. The charges included a minor indictable offence. But she was charged mistakenly on a complaint. And no one noticed.
After a number of her non-appearances, the Court proceeded in her absence, a procedure only available in the case of a minor indictable offence where the defendant had elected to be dealt with summarily.
“That election never occurred”, explains Jacobi.
Denial of procedural right
Ms Brown was convicted and sentenced to a term of imprisonment. She later appealed on several grounds, the most significant being that as the most serious charge against her was a minor indictable offence, she had the right to elect to be tried by a jury, rather than simply having the matter dealt with summarily in the Magistrate’s Court.
“She had never been apprised of that right”, said Jacobi.
“The significance of the case is that in essence she was denied a very significant procedural right.
“The court recognised that this had come about because the prosecutor had used the wrong instrument”.
Notwithstanding the recent reforms, Jacobi and his co-author, Michael Grant consider that the abolition of complaints in SA will not alter the substantive law for dealing with these matters.
Be alive to substantive right, despite absence of “clue”
That right to elect remains and if it’s not observed, the case will apply with equal force, explains Jacobi.
“Those substantive rights will be the same”.
The problem we return to is that, post-reform, where the complaint is no longer used, the offence will need to be charged on an information.
“So the clue as to procedure won’t be there unless you’re alive to the distinction”.
Beware: potential for mistake greater now
“The new form for an information does require prosecutors to indicate if the charge is for a minor indictable offence. This should also as before be included in the particulars”.
But as Jacobi warns, “Experience tells us that people make mistakes, that distinctions are not always easy to draw between summary and minor indictable offences, and of course the classifications of offences change”.
“Without the complaint, the potential to make this mistake is probably greater now than it was before”.
A checklist for lawyers
To ensure you commence proceedings for the correct offence:
- Re-familiarise yourself with the classification of offences in s 5 of the Summary Procedure Act 1921 (SA)
- Whether prosecuting or defending, check the offence is correctly classified – irrespective of which box is ticked on the information form
- Check that the offence is clearly recorded in the particulars
- Read Brown v RSPCA for the motivation and as a reminder to do the above!
About Chad Jacobi
Chad Jacobi is a barrister at Edmund Barton Chambers. He practises in administrative, constitutional and criminal law. He is a co-author with Michael Grant of Summary Justice South Australia.
Summary Justice South Australia is a comprehensive guide to practice and procedure in the criminal jurisdiction of the Magistrates Court in South Australia. It’s the only subscription publication specialising in this jurisdiction in South Australia. To learn more or request a free trial, visit the website.