{"id":145,"date":"2018-01-17T00:00:00","date_gmt":"2018-01-16T13:00:00","guid":{"rendered":"https:\/\/hub.findingsimple.com\/au\/summary-procedure-reform-south-australia\/"},"modified":"2026-04-22T13:06:34","modified_gmt":"2026-04-22T02:06:34","slug":"summary-procedure-reform-south-australia","status":"publish","type":"post","link":"https:\/\/insight.thomsonreuters.com.au\/legal\/posts\/summary-procedure-reform-south-australia","title":{"rendered":"Summary Procedure Reform in South Australia: The Abolition of Complaints and the Use of Informations"},"content":{"rendered":"
\"Chad<\/a>
Chad Jacobi, Co-Author, Summary Justice South Australia<\/em> and Barrister, Edmund Barton Chambers<\/figcaption><\/figure>\n

Following the abolition of the \u201ccomplaint\u201d 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\u2019re commencing or defending.<\/p>\n

The replacement of the complaint with a single instrument \u2013 an information \u2013 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.<\/p>\n

Be more vigilant now historical signpost removed<\/strong><\/p>\n

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.<\/p>\n

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.<\/p>\n

The Summary Procedure (Abolition of Complaints) Amendment Act 2016<\/em> (SA)<\/a>, 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.<\/p>\n

\u201cThe signpost may have been removed, but the fork in the road is still there\u201d, warns Chad Jacobi, co-author of Summary Justice South Australia and barrister at Edmund Barton Chambers.<\/p>\n

Ignore procedure at your peril: recent SA case<\/strong><\/span><\/p>\n

So now it\u2019s up to the criminal lawyer to be alert to the significance of the offence they\u2019re charging or defending. And if you get it wrong, there are serious consequences, warns Jacobi.<\/p>\n

He draws attention to a recent Supreme Court decision in SA, Brown v RSPCA<\/em>, which highlights the risk of procedural error leading to the denial of rights \u2013 particularly relevant now in the post-reform world where the markers have gone.<\/p>\n

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 \u2013 on complaint instead of information \u2013 with significant consequences.<\/p>\n

\u201cHaving been charged in the wrong way, by using the wrong procedure, people failed to notice that there was a substantive right that she should\u2019ve been accorded\u201d, explains Jacobi.<\/p>\n

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.<\/p>\n

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.<\/p>\n

\u201cThat election never occurred\u201d, explains Jacobi.<\/p>\n

Denial of procedural right<\/strong><\/span><\/p>\n

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\u2019s Court.<\/p>\n

\u201cShe had never been apprised of that right\u201d, said Jacobi.<\/p>\n

\u201cThe significance of the case is that in essence she was denied a very significant procedural right.<\/p>\n

\u201cThe court recognised that this had come about because the prosecutor had used the wrong instrument\u201d.<\/p>\n

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.<\/p>\n

Be alive to substantive right, despite absence of \u201cclue\u201d<\/strong><\/span><\/p>\n

That right to elect remains and if it\u2019s not observed, the case will apply with equal force, explains Jacobi.<\/p>\n

\u201cThose substantive rights will be the same\u201d.<\/p>\n

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.<\/p>\n

\u201cSo the clue as to procedure won\u2019t be there unless you\u2019re alive to the distinction\u201d.<\/p>\n

Beware: potential for mistake greater now<\/strong><\/span><\/p>\n

\u201cThe 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\u201d.<\/p>\n

But as Jacobi warns, \u201cExperience 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\u201d.<\/p>\n

\u201cWithout the complaint, the potential to make this mistake is probably greater now than it was before\u201d.<\/p>\n

A checklist for lawyers<\/strong><\/span><\/p>\n

To ensure you commence proceedings for the correct offence:<\/p>\n