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SPECIALIST COURTS

Introduction
Terminology
Co-morbidity
Criminogenic Factors
Diversion
Evidence-based practice
Intervention program
Problem-solving court
Recidivism
Restorative justice
Therapeutic jurisprudence
Bail
Bail to undertake assessment for an intervention program
Failure to comply with a condition of bail to attend an assessment
Bail for participation in an intervention program
Failure to comply with the conditions of an intervention program
Judicial Review
Sentencing Considerations
Deferral of sentence
General Sentencing Principles
Intervention program as a condition of a bond
Referral to specialist courts
Aboriginal Court Day (also known as Nunga Court)
Sentencing Conferences
Referral Process
Eligibility criteria
Assessment report
The sentencing conference
Sentencing Considerations
Drug Court
Referral Process
Eligibility criteria
Breach of District Court Bonds
Parole Board warrants
Former Drug Court participants
Assessment report
Acceptance into program
Progress reports
Progress summary report and sentencing considerations
Family Violence Court
Referral Process
Eligibility Criteria
Assessment Report
Acceptance into Program
Progress Reports
Final reports and sentencing considerations
Intervention Orders
Magistrates Court Diversion Program
Section 269 matters
Referral Process
Eligibility criteria
Assessment report
Acceptance into program
Progress reports
Progress summary report and sentencing considerations
Without conviction or penalty
Dismissal of the charge
Release on undertaking to complete the program
Other sentencing options
Treatment Intervention Program
Referral process
Eligibility criteria
Assessment report
Acceptance into program
Progress reports
Progress summary report and sentencing considerations
Youth Court

Introduction

There are a number of specialist courts sitting in the Magistrates Courts which offer intervention programs to defendants who meet the particular program's eligibility criteria. These are the Aboriginal Court Day (also known as Nunga Court and Aboriginal Sentencing Court), the Magistrates Court Diversion Program (which deals with defendants with mental health disabilities), the Family Violence Court, the Drug Court and the Treatment Intervention Program. Participation in an intervention program is voluntary and requires the consent and cooperation of the defendant.

On occasion, a duty solicitor may be called upon to provide advice to a defendant about a specialist court intervention program, or to provide assistance with an application to divert offence(s) for assessment for an intervention program, or to appear in a specialist court for a defendant (usually on the instructions of the defendant's solicitor). This chapter provides information relevant to duty solicitor work, such as the referral process, and eligibility criteria for each program. It also provides a basic outline of practice, procedure and the underlying principles from which each specialist court operates.

Terminology

Brief explanations are provided for some of the terminology related to court intervention programs and specialist courts [see Sentencing chapter for underlying sentencing principles including rehabilitation].

Co-morbidity

The term “co-morbidity” is used when an individual is found to suffer from two or more conditions at the same time. Within the context of the criminal justice system and specialist court intervention programs, the term “co-morbidity” may refer to the situation where a defendant suffers from drug dependence and mental health problems at the same time.

Criminogenic Factors

Empirical research indicates that a reduction in rates of recidivism can occur when certain criminogenic factors associated with criminal behaviour are addressed through intervention that promotes behavioural and attitudinal change. These factors may include: drug dependence, mental health issues, lack of self-control, lack of problem-solving skills, antisocial attitudes, peer group pressure, or lack of employment. Towards this end, specialist court intervention programs generally seek to address such criminogenic factors in order to break the cycle of criminal offending.

Diversion

Within the context of the criminal justice system the terms “diversion” and “therapeutic intervention” can refer to rehabilitation programs offered by courts which address attitudes and behaviours related to criminal offending. Court proceedings may be adjourned to allow a defendant the opportunity to undertake treatment by participating in an intervention program designed to address specific issues or needs. Having completed an intervention program a defendant returns to court for sentencing.

In a broader context the terms “diversion” and “therapeutic intervention” can also refer to programs which completely divert offenders away from the criminal justice system, and offer intervention by way of education and counselling, such as the Police Drug Diversion Scheme for low level cannabis users.

Evidence-based practice

This refers to the belief that all problem-solving courts should adopt evidence-based practice. In essence, all decision making, including the selection of specific intervention and treatment programs, should be based upon empirical evidence and reliable research. For example, the assessment procedures adopted by specialist courts should rely upon recognised and empirically valid assessment tools. Likewise, specialist courts should adopt interventions, treatment and other services based upon reliable evidence of the success of such interventions, treatment and other services.

Intervention program

A court intervention program is one which is primarily involved with the supervised provision of programs which individually or in combination deliver treatment, rehabilitation, behaviour management, or access to support services to address behavioural problems associated with substance abuse, gambling addiction or mental impairment [see Bail Act 1985 s 3; Criminal Law (Sentencing) Act 1988 s 3 for definition]. Participation in an intervention program is voluntary and a defendant must be willing to give consent to the assessment and monitoring procedures.

Problem-solving court

Problem-solving courts use the authority invested in them to provide and supervise therapeutic interventions designed to address criminogenic factors which are known to influence criminal behaviour. Problem-solving courts recognise and work collaboratively with other social science disciplines and community service providers in order to address broader social problems through the treatment of individual offenders. The courts aim to address social issues, such as the cost and impact of crime on the community and recidivism rates, through intervention that addresses the underlying causes of crime. This represents a shift from a traditional criminal court approach which focuses on the offence, and punishment of the offender.

Recidivism

Where criminal behaviour is repeated or habitual or where there is a relapse into criminal behaviour.

Restorative justice

Restorative justice programs provide for mediated encounters between victims and offenders to allow the victim to address an offender about the impact that the offending has had upon him or her, and also to allow the offender to have an opportunity to take responsibility for his or her criminal behaviour. A further aim is for restoration. This may be achieved through discourse, an apology to the victim, or other means of making amends.

In 2004 the Adelaide Magistrates Court introduced a Restorative Justice Pilot Program as a post-plea and pre-sentence option for defendants. The program has since ceased operation. However, specialist courts such as the Aboriginal Court Day (also known as the Nunga Court) still incorporate restorative justice principles.

Therapeutic jurisprudence

The concept of therapeutic jurisprudence originated from mental health law research conducted in the United States. The research concluded that the legal system is capable of causing anti-therapeutic or therapeutic outcomes for all participants. Interactions within the legal system impact on the physical, emotional and psychological wellbeing of all participants, and the impact can be either positive or negative. Recognising that a court is uniquely in a position to positively influence the lives of those people who appear before it, proponents of therapeutic jurisprudence are mindful of the wellbeing of all courtroom participants, and advocate for court procedures and processes which are likely to enhance therapeutic outcomes.

The adoption of the principles of therapeutic jurisprudence by members of the legal system has resulted in cooperation between courts and social science disciplines (psychology, psychiatry, criminology and social work) to explore how the reform of courts and court processes can enhance therapeutic outcomes. This has provided the impetus for many innovative court developments, such as drug courts and community courts, and has led to an exploration of more effective sentencing options, including more emphasis on offender rehabilitation.

Bail

The Bail Act 1985 (SA) and the Criminal Law (Sentencing) Act 1988 (SA) specifically provide for bail to allow a defendant to undertake assessment for, and participation in, an intervention program. The relevant provisions are outlined below [see also Bail chapter].

Bail to undertake assessment for an intervention program

A court may adjourn sentencing proceedings, upon a guilty plea or a finding of guilt or, in the case of the Mental Health Diversion Court, where there is an admission that the factual elements of the charge are not contested, and grant bail to allow a defendant to undertake an assessment of his or her capacity and prospects for rehabilitation, and eligibility for participation in an intervention program [see Criminal Law (Sentencing) Act 1988 (SA) ss 19B(1)(a) and 19B(1)(c); and Sentencing considerations (below)].

A court may order an assessment of a defendant to determine an appropriate intervention program, and whether or not that person meets the eligibility criteria of the program [see Bail Act 1985 (SA) s 21B(3)]. A court may release a defendant on bail with a condition that he or she attends an appointment to undertake assessment for an intervention program [see Bail Act 1985 (SA) s 21B(3)].

Failure to comply with a condition of bail to attend an assessment

When a defendant fails to comply with a condition of bail to attend an assessment, the court must determine whether the failure to comply with the order to undertake an assessment constitutes a breach of the bail agreement [see Bail Act 1985 (SA) s 21B(6)]. Failure to attend an assessment, in itself may be considered by the court as indicating an unwillingness to participate in the assessment and program [see s 21B(6)]. The court has the discretion to allow a defendant a further opportunity to attend an assessment where there has been a previous failure to attend. The court may at any time make an order to revoke or vary the bail condition [see s 21B(5)].

DEFENDANTS WHO MAY BENEFIT FROM AN INTERVENTION PROGRAM

The question of whether a defendant in custody may be eligible for participation in an intervention program may arise from the Form 2 (which is a written record of the reasons for a refusal of police bail [see Bail Regulations 2015 (SA) sch 1 Form 2), or from the contents of a Bail Enquiry Report, or during the taking of instructions for a bail application.

For example, the Form 2 or a Bail Enquiry Report may highlight a history of drug addiction or mental impairment. The instructions of the defendant or his or her demeanour (such as appearing to be under the influence of drugs, or clearly suffering from a mental impairment) may suggest a potential benefit from participation in an intervention program. When this occurs, you should provide the defendant with some basic advice about the benefits of an intervention program, and take instructions as to whether or not the defendant agrees to be assessed for one.

Similarly, defendants who are not in custody frequently attend at the Duty Solicitor's office for minor assistance, sometimes accompanied by a mental health or other support worker, and through their demeanour or history may reveal a potential eligibility for participation in an intervention program. In these situations a defendant should be given basic advice about the availability of the appropriate program, and the benefits of participation, and further advice about applying for legal aid or private representation if ineligible.

Bail for participation in an intervention program

A court may adjourn sentencing proceedings, upon a guilty plea or a finding of guilt, or following an admission of the factual elements where mental health is an issue, and grant bail to allow a defendant an opportunity to demonstrate that rehabilitation has taken place and to allow him or her to participate in an intervention program [see Criminal Law (Sentencing) Act 1988 (SA) ss 19B(1)(b) and 19B(1)(d); and Sentencing considerations (below)]. A court may not release a defendant on bail to undertake an intervention program unless satisfied that the person meets the eligibility criteria of the program, and services are available for the defendant to undertake the program [see Bail Act 1985 (SA) s 21B(2)(b)].

Following an assessment for participation in an intervention program, the court is provided with a certificate indicating whether the applicant is considered to be eligible to participate in the program, the availability of services, and whether the defendant has cooperated with the assessment process [see Bail Act 1985 (SA) s 21B(7)]. Once it is determined that the defendant is a suitable candidate for participation in a program, he or she may be released with a condition of bail that he or she is to undertake the intervention program [see s 21B(1)].

Failure to comply with the conditions of an intervention program

Where a person is considered to have failed to comply with a condition of an intervention program, the matter is referred back to court for consideration. The court must determine whether or not the failure to comply constitutes a breach of a condition of bail [see Bail Act 1985 ss 21B(6) and 21B(7)]. Failure to comply with a condition of an intervention program may in itself be considered by the court as an indication that the person is unwilling to continue participation in the program [see s 21B(6)]. However, the fact that a defendant has performed badly or failed to make satisfactory progress in an intervention program is not relevant to the eventual sentencing process [see Criminal Law (Sentencing) Act 1988 (SA) s 10(6)]. The court may at any time make an order to revoke or vary the bail condition [see Bail Act 1985 (SA) s 21B(5)].

Judicial Review

Where a defendant is excluded from participation in an intervention program (including at the assessment stage) due to a lack of procedural fairness that defendant is eligible for a judicial review [see Crockford v Adelaide Magistrates Court (2008) 100 SASR 195;[2008] SASC 62].

Sentencing Considerations

The Criminal Law (Sentencing) Act 1988 (SA) specifically provides for the deferral of sentencing to allow a defendant to undertake assessment for, and participation in, an intervention program. The relevant provisions are outlined below [see also Guilty Pleas and Sentencing chapters].

Deferral of sentence

Section 19B of the Criminal Law (Sentencing) Act 1988 (SA) allows for the deferral of sentencing for a defendant to demonstrate that rehabilitation has taken place, or for his or her participation in an intervention program [see Criminal Law (Sentencing) Act 1988 (SA) ss 19B(1)(b) and 19B(d); Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 for common law principles]. A court may adjourn sentencing proceedings for up to twelve months from the date of the finding of guilt to allow a defendant to undertake rehabilitation [see s 19(2)].

An adjournment may be extended beyond twelve months where a defendant is about to commence, or is participating in an intervention program, has demonstrated a commitment to addressing the causal problems which led to the offending, and where a further extension would allow a defendant to complete or participate in an intervention program [see Criminal Law (Sentencing) Act 1988 (SA) s 19B(3)]. In determining whether or not to extend an adjournment beyond twelve months, the court is not bound by the rules of evidence, and may inform itself on the basis of a written or oral report from a person in a position to provide such a report [see s 19B(4)]. Any person who provides information to the court (written or oral) is liable to be cross-examined on any matters contained in their report [see s 19B(5)]. Any statement, fact or opinion contained in a report must be disregarded by the court if challenged by prosecution or a defendant unless it is substantiated on oath [see s 19B(6)].

General Sentencing Principles

The Criminal Law (Sentencing) Act 1988 (SA) provides the matters relevant to sentencing which must be considered by a sentencing court [see Guilty Pleas chapter for a detailed discussion of Criminal Law (Sentencing) Act 1988 (SA) ss10-10C; Sentencing chapter for underlying sentencing principles]. Whilst a sentencing court must weigh and consider all sentencing considerations, demonstrated rehabilitation is of particular relevance when sentencing a defendant who has successfully completed an intervention program, and general deterrence is no longer a predominant factor [see Criminal Law (Sentencing) Act 1988 (SA)s 10(m); Miller v Burgoyne (2004) 150 A Crim R 7; [2004] NTSC 47].

A sentencing court might treat a defendant’s rehabilitation through participation and achievements in an intervention program as relevant to sentence [see generally Criminal Law (Sentencing) Act 1988 (SA) ss 10(1)(m),10(1)(o)]. A sentencing court may consider a non-custodial sentence due to a defendant’s demonstrated rehabilitation in an intervention program, where imprisonment prior to participation on the program was almost certain [see Criminal Law (Sentencing) Act 1988 (SA) s 11; Germain v Police [2006] SASC 340; R v Moore (2009) 263 LSJS 183; [2009] SADC 56].

The fact that a defendant has not participated in an intervention program, or performed badly, or did not make satisfactory progress, is not relevant to sentence [see Criminal Law (Sentencing) Act 1988 (SA) s10(3)(c)(1) -(2)]; Ashton v Police (2008) 101 SASR 102; [2008]SASC 174]. For those defendants who fail to successfully complete an intervention program, there is often room to argue that even though they have not completed the program, they have nevertheless demonstrated some progress towards rehabilitation.

Intervention program as a condition of a bond

The Criminal Law (Sentencing) Act 1988 (SA) provides for participation in an intervention program after sentence as a condition of bond [see s 42(1)(da)]. Before such a condition can be imposed in a bond, a court must first be satisfied that a defendant meets the eligibility criteria of the intervention program and services are available for the defendant to undertake the program [see s 42(6)]. A court may order an assessment of a defendant to determine the appropriate form of intervention, and his or her eligibility to participate in such an intervention [see s 42(7)].

Once a defendant is assessed as eligible for participation in an intervention program, the court is provided with a certificate in confirmation [see Criminal Law (Sentencing) Act 1988 (SA) s 42(8)(a)]. Upon completion of an intervention program, a certificate confirming compliance with conditions regulating participation may also be made available to the court [see s 42(8)(b)].

This provision is not currently being used by the specialist courts in this State. It would be inconsistent with the various programs’ requirement that participation in an intervention program be voluntary.

Referral to specialist courts

The following paragraphs provide an outline of the specialist courts and a guide to the referral processes for each court. Whilst the legislation (as cited above) provides the foundation for practices and procedures in specialist courts, a number of these courts are in the process of restructure which may affect the current and future assessment procedures, eligibility criteria, and availability of interventions, treatment and other services. As specialist courts operate on the principles of evidence-based and best practice, they are necessarily subject to change from time to time.

Aboriginal Court Day (also known as Nunga Court)

Aboriginal Court Day provides Aboriginal defendants with a culturally-appropriate sentencing option through participation in a sentencing conference. This process aims to overcome cultural barriers to understanding the law, court practice and procedure. It also seeks to build relationships with Aboriginal communities and organisations, reduce offending, and provide holistic outcomes for Aboriginal defendants through referrals to appropriate medical, mental health and other rehabilitation services.

Aboriginal Court Day (also known as the Nunga Court or the Aboriginal Sentencing Court) is available from the Port Adelaide, Murray Bridge, Port Augusta, Mt Gambier, Pt Lincoln and Ceduna Magistrates Courts.

Sentencing procedures are less formal when facilitated through a sentencing conference. All participants (including the Magistrate) sit on the same level. Victims, family and community members are encouraged to attend the court and to participate in the sentencing conference. Community elders and Aboriginal Justice Officers provide the Magistrate with advice on relevant cultural and community issues. The Aboriginal Justice Officer provides guidance and support to defendants, their families and the community on court process and outcomes (including reminders of pending court days and times, and assistance in understanding bail and bond conditions). In addition, the Aboriginal Justice Officer provides cultural awareness education to members of the judiciary and court staff, and education to Aboriginal communities about the legal system.

Sentencing Conferences

The Criminal Law (Sentencing) Act 1988 (SA) was amended in 2005 to provide legislative support to the practice and procedure adopted by the Magistrates Courts facilitating Aboriginal Court Day. Section 9C provides for the sentencing of an Aboriginal defendant in a less formal manner by way of a sentencing conference, and empowers the sentencing court to take into consideration any views expressed at the conference [see s 9C(1)]. Any court of criminal jurisdiction may convene a sentencing conference in accordance with section 9C when sentencing an Aboriginal defendant, where the defendant consents to the process. For example, the Supreme Court has conducted sentencing conferences to sentence Aboriginal defendants [see R v Wanganeen (2010) 108 SASR 463; [2010] SASC 237 at paras 3, 4 and 17].

Referral Process

Within the courts of summary jurisdiction, criminal matters can be diverted from the originating court to an Aboriginal Sentencing Court for assessment for eligibility for participation in a sentencing conference. However, the defendant must have at least one matter that originated in a court that has Aboriginal Court jurisdiction. A defendant who has other unresolved criminal offence(s) in any other court may not be considered eligible to apply for sentencing by way of a sentencing conference.

Eligibility criteria

Aboriginal Court Day is available to Aboriginal defendants who have entered guilty pleas or been found guilty of an offence(s) and who wish to be sentenced by way of a sentencing conference. The courts will only accept those court files where pleas have been entered to all matters. As the conference will include Aboriginal elders from the geographical area near the court, referral should be made to the court nearest the community with which the defendant is connected.

Assessment report

All applicants are assessed by an Aboriginal Justice Officer who must first determine that the defendant is an Aboriginal person in accordance with section 9C of the Criminal Law (Sentencing) Act 1988 (SA) , and that the defendant meets the criteria set out in the Assessment Guidelines. An Aboriginal person for the purpose of this section is a person who is descended from an Aboriginal or Torres Strait Islander, and who considers themselves to be, and is accepted by the community to be, an Aboriginal or Torres Strait Islander [see s 9C(4)].

A defendant who is suffering from a mental impairment (as defined by section 19C of the Criminal Law (Sentencing) Act 1988 (SA), chronic drug or alcohol dependence, or who is a long term recidivist offender may not be eligible for a sentencing conference [see Magistrates Court Diversion Program; Drug Court]. The Court has a discretion as to whether or not the defendant will be accepted for a sentencing conference, and may refer the matter back to the originating court should the defendant be found ineligible for participation in this sentencing option.

The sentencing conference

A sentencing conference must include the defendant, his or her legal representative and the prosecutor, and may include the victim [see Criminal Law (Sentencing) Act 1988 (SA) s 9C(2)]. A sentencing conference may also include an Aboriginal elder; a person qualified to provide cultural advice; a member of the defendant’s family; a person who provides support or counselling to the defendant, or any other person the court considers may usefully contribute towards the sentencing process [see s 9C(3)]. An Aboriginal Justice Officer assists the court by convening the sentencing conference, by providing the court with advice on Aboriginal society and culture, and by assisting Aboriginal persons to understand court procedures, sentencing options and how to comply with court orders [see ss 9C(1) and 9C(5)].

In addition to information relevant to sentence raised and discussed during the sentencing conference, the court may also consider ordering expert reports such as pre-sentence, psychiatric, psychological and anthropological reports; and it may seek further advice from the Aboriginal Justice Officer in order to assess the defendant’s needs and the best means to provide support for those needs through the sentencing process [see Working with Aboriginal Defendants chapter]. The court may consider adjourning the matter to allow the defendant an opportunity to address any issues raised at the conference [see Criminal Law (Sentencing) Act 1988 ss 19B(1)(b) and 19B(d); Griffiths v The Queen (1977) 137 CLR 293;[1977] HCA 44 for common law principles; and Deferral of Sentence (above)].

Sentencing Considerations

The judgment in R v Wanganeen (2010) 108 SASR 463; [2010] SASC 237recognised the value of sentencing conferences for ‘ informing the court and the defendant, and his or her community, about matters relevant to sentence in a more comprehensive and understandable way than is possible using standard sentencing procedures ’, and also clarified that:

  • Sentencing conferences do not change the matters to which a court must have regard in accordance with the Criminal Law (Sentencing) Act 1988 (SA) ss10-10C, but the information gathered may provide context within which to consider relevant sentencing factors; and
  • How the Court uses the information from a sentencing conference is within the Court’s discretion [see R v Wanganeen at para 4].

For further information in relation to sentencing principles refer to the Working with Aboriginal Defendants, Guilty Pleas and Sentencing chapters.

Drug Court

Drug courts originate from the United States, where they developed in the 1980s as a grassroots response to escalating court lists and imprisonment rates. They have since emerged in many countries. Evaluations indicate that drug courts can successfully address drug dependence and reduce recidivism (and in doing so enhance community safety) and are more cost effective than imprisonment.

The Drug Court sits twice a week in the Adelaide Magistrates Court and accepts applicants with summary and minor indictable offences which are related to illicit drug dependence. The Drug Court is a non adversarial court with direct interaction between the presiding judicial officer and each participant when they appear in court.

The Drug Court offers defendants an opportunity to address their illicit drug dependence and related criminal behaviour by engaging in an intensive drug rehabilitation program with ongoing judicial supervision and frequent court appearances (called reviews), stringent bail conditions (including home detention), random mandatory urine testing, and attendance at group therapy and individual counselling. Each participant has an individual case management plan aimed at assisting the defendant to address and take responsibility for his or her illicit drug dependence. They are assigned Program Supervisors who provide daily support, supervision and guidance, including facilitating access to pharmacotherapy, housing assistance, medical treatment, mental health services and dental care, education and employment. The court acknowledges that relapse into drug use is part of the recovery process, and uses a system of rewards for compliance and sanctions for non-compliance with program conditions, including remands into custody for stabilisation.

The Drug Court offers a twelve month program and a six month program. A recommendation is made for either program by court staff, and is based upon an assessment of the defendant’s substance dependence, criminogenic factors, offender history and the likelihood of imprisonment. In general terms, the twelve month program is suitable for middle to hard end recidivist offenders who are liable to be sentenced to serve a term of at least twelve months imprisonment for the offences currently before the court. The six month program is more suitable for those defendants who are not likely to be imprisoned when sentenced, and yet would benefit from an intervention.

BAIL CONSIDERATIONS

The Drug Court will not release people who are in custody onto bail until they are assessed as suitable for the program and have suitable accommodation. This is to ensure that participants are not “set up to fail” by being released into the community without full supervision, support and assistance. Most participants will be subjected to home detention bail when first released onto the program.

ACCOMMODATION

The Drug Court can provide accommodation for participants; however, applicants need to be aware that there is often a waiting list for available accommodation.

Referral Process

Criminal matters can be diverted to the Drug Court for an application for assessment for participation in the program following the entering of guilty pleas to the majority of, and most serious matters currently before the originating court(s). Disputed matters must remain in the court of origin until they resolve (by plea or a finding of guilt) and may later join all other matters listed in the Drug Court.

REFERRAL TO DRUG COURT SOLICITORS

The Commission employs dedicated solicitors who work in the Drug Court, and who can represent defendants at an early stage, even before their matters are ready to be diverted into the Drug Court. Should a duty solicitor become aware of an unrepresented defendant who wants to apply for participation in the Drug Court, or who has had matters recently diverted to the Drug Court, it is important that they notify the dedicated solicitors. Where a defendant is granted bail, it is important that the duty solicitor advise him or her to lodge an application for legal aid as soon as possible and to include a note that they wish to apply for the Drug Court. Where a defendant is refused bail, it is important that the duty solicitor clearly mark the “urgent in custody” application at the top with “possible Drug Court applicant” or “Drug Court” where the matters are already diverted. The file will then be assigned to the Drug Court solicitors.

Eligibility criteria

Before an assessment for participation on the program is ordered, a defendant must meet the eligibility criteria for assessment for the program. The Magistrate sitting in the Drug Court has discretion to hear and decide arguments in relation to the criteria. In order to be considered eligible to be assessed for participation in a drug court program, the defendant must:

  • be willing to fully participate in the program; and
  • have attained 18 years of age or above at the time of the offence(s); and
  • be able to reside within the boundaries of the Adelaide metropolitan area for the duration of the program; as far north as Gawler City Centre; as far South as Noarlunga City Centre; as far east as the foothills. The residence must be suitable for home detention monitoring; and
  • be charged with an offence(s) related to the use of illicit drugs (but not necessarily a drug offence); and
  • be drug dependant or vulnerable to return to drug use once a period of forced abstinence ceases, such as release from prison; and
  • be facing a potential term of imprisonment for the offence(s).

The defendant must also:

  • have entered guilty pleas to the most serious and the majority of offence(s) currently before the court(s); and
  • not have a propensity for violence or aggressive behaviour (such as current offences of violence or a history of offences of violence).

The decision as to whether or not a defendant is to be assessed for, or accepted into the program is a matter for the court’s discretion. Even where the Preliminary Assessment Report indicates that the defendant is “not recommended” for the program, the court may still be persuaded by defence submissions that there are good grounds for allowing the defendant to participate. For example, in the Drug Court program, a history of offences demonstrating a propensity for violence may not necessarily mean that a defendant would be precluded, and it would still be a matter for the court’s discretion when considering an application on behalf of a defendant whose main drug of dependence was alcohol.

Breach of District Court Bonds

The court will consider applications by defendants who have breach of bond matters before the higher courts.

Parole Board warrants

The Drug Court has an arrangement with the Parole Board and is able to accept applications from defendants who are currently in custody on parole warrants.

Former Drug Court participants

The Drug Court will consider applications by defendants who have previously participated in the program where they have relapsed and have a fresh criminal offence(s). The court will not accept applications from former participants where the offending breaches a previous Drug Court suspended sentence bond.

Assessment report

Once it is determined that a defendant meets the eligibility criteria, the court may order an assessment report and a home detention report. The assessment includes a recommendation as to whether the applicant is suitable for the program, and which program stream is most suitable (the six or twelve month program). If a defendant is not recommended for the program, the matter is usually returned to the court of origin for sentencing. The Magistrate sitting in the Drug Court has discretion to hear submissions by the defendant and prosecution in relation to the assessment report, and may accept a defendant into the program regardless of the recommendation.

Acceptance into program

All participants accepted into the twelve month program are subjected to home detention bail with electronic monitoring for the first phase of the program. Defendants participating in the program may only leave their residence with the permission of their Program Supervisor for approved activities. Home detention is monitored to the minute, with all breaches of bail (however minor) being reported to the Drug Court Magistrate. Initial bail conditions may be less stringent for those defendants placed into the six month program.

Progress reports

Initially, participating defendants attend fortnightly court reviews before the Drug Court Magistrate, who is provided with a report summarising their progress and compliance. At each progress review the Magistrate will discuss breaches of bail conditions, drug use and any other issues directly with the defendant. Relapses into drug use may result in an immediate return to custody for a period of stabilisation. Failure to make positive progress on the program, ongoing breaches of conditions and re-offending may lead to the termination of the defendant’s participation in the program.

Progress summary report and sentencing considerations

Successful completion of the program requires demonstrated progress, such as refraining from drug use and no further offending, and may be considered by the sentencing court as indicating rehabilitation, or where progress has been slow, as showing prospects of rehabilitation. Successful completion of the program may result in a defendant receiving a suspended sentence with bond conditions.

GENUINE DESIRE TO ADDRESS ISSUES

All potential applicants for this program need to be advised that the program is demanding and difficult. They need to be genuinely dedicated to dealing with their illicit substance abuse issues.

Family Violence Court

Court intervention for defendants charged with criminal offences related to domestic violence are based upon feminist perspectives of power relations and gender. Court intervention focuses on the criminality of domestic violence, and the need for men to acknowledge and take responsibility for their abuse and violence. The paramount consideration is for the safety of women and children.

The Family Violence Court sits once a week in the Adelaide, Port Adelaide and Elizabeth Magistrates Courts and hears criminal matters connected to domestic violence, such as assaults on family members, and applications for intervention orders (even where the relationship has ceased). The court offers support services and protection to women and children, whilst providing defendants with an opportunity to address their violent and abusive behaviour by participating in the Abuse Prevention Intervention Program. Participation in this program can occur as a condition of bail or a bond, with ongoing supervision provided by a Community Correctional Services Officer, or pursuant to an intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 13].

Referral Process

Criminal offences related to domestic violence can be diverted from a general court list (including from metropolitan courts) to the Family Violence Court for an application for assessment for the program. Upon attendance at the Family Violence Court the applicant is encouraged by the Magistrate to participate in the Abuse Prevention Intervention Program. The Magistrate sitting in the Family Violence Court will consider adjourning or remanding the matter for a period of four weeks with supervised bail (by a Community Correctional Services Officer) and on condition that the defendant attend for assessment, which the defendant is expected to arrange on his or her own behalf by contacting the Clinical Assessment and Liaison Worker for the Abuse Prevention Intervention Program.

An intervention order may require the defendant to undergo an assessment to determine the form of intervention appropriate for the defendant and the defendant’s eligibility for the services included in the program [see s 13(1)]. An intervention program is defined as including: supervised treatment, or supervised rehabilitation, or supervised behavioural management, or supervised access to support services, or a combination of any one or more of these designed to address behavioural problems (including problem gambling), substance abuse or mental impairment [see s 3(1) for definition]. An intervention order may require the defendant to undertake an intervention program where the defendant is assessed as eligible for such an intervention program and services are available for the defendant [see s 13(2)]. The defendant must comply with requirements regulating his or her participation in the assessment process and a failure to comply constitutes a contravention of the term of the intervention order [see s 13(3)].

Eligibility Criteria

In order to be assessed as suitable for participation in the program, the defendant must acknowledge during the assessment process: their past abuse and acts of violence, that they recognise this behaviour is problematic, and a desire to address their behaviour.

Assessment Report

Following assessment of a defendant the court is provided with a report outlining whether the defendant meets the eligibility criteria for the program and any other issues raised at assessment which need to be addressed, including mental health, substance abuse and gambling.

Acceptance into Program

Once a defendant is found to be appropriate for the program, finalisation of their criminal matter(s) is delayed whilst they participate in the program as a condition of bail (or where sentencing has occurred as a condition of bond), or as a condition imposed under an intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA)]. Supervision is provided through a Community Correctional Services Officer.

Progress Reports

The Magistrate sitting in the Family Violence Court may request progress reports during the adjournment period. Failure to comply with bail conditions and program requirements during this period is reported to the court and prosecution. Where the Community Correctional Services Officer finds the defendant is failing to comply with conditions of bail, they may ask the court to vary or revoke bail. SAPOL will pursue criminal charges where the behaviour involves further threats or acts of violence. In addition, where the defendant is undertaking an intervention subject to a condition in an intervention order, then that defendant must comply with all requirements regulating his or her participation in the intervention program. Failure to comply with such requirements constitutes a contravention of the term of the intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(1)].

Final reports and sentencing considerations

The Family Violence Court is provided with a final report at the completion of the program. This provides evidence to the court of any behavioural and attitude changes, attendance records and any other issues which may have arisen during the defendant’s time in the program. The report will also provide a summary as to whether or not progress has been satisfactory. This report is taken into consideration when the defendant is subsequently sentenced by the court.

Intervention Orders

Intervention orders aim to prevent domestic or non-domestic abuse by regulating a defendant’s behaviour towards a protected person(s). The law about intervention orders is found in the Intervention Orders (Prevention of Abuse) Act 2009 (SA) .

An intervention order is a civil matter between the police or other applicant and the defendant. It is not a criminal charge and will not therefore appear on a defendant’s antecedent report. However, once an intervention order is in force, it is a criminal offence to breach the order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31].

Although an intervention order is not a criminal matter or charge, proceedings in relation to them are heard in the Criminal Division of the Magistrates Court and are governed by Magistrates Court Rules 1992 (SA), Section B Rules Relating to the Criminal Jurisdiction, r 18.

What does the protected person need to prove?

A police officer or Court may issue an interim intervention order against a person if they have a reasonable suspicion that the person will, without intervention, commit an act of abuse against a protected person(s) and the issuing of the order is appropriate in the circumstances [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6].

These grounds need only be proved on the balance of probabilities [see s 28].

What is an act of abuse?

An act of abuse is any act that results in, or is intended to result in:

  • physical injury; or
  • damage to property; or
  • emotional or psychological harm; or
  • an unreasonable denial of financial, social or personal autonomy.

[see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8 for detailed examples].

An act of abuse may be domestic or non-domestic. If a defendant is or was formerly in a relationship with the protected person(s), it is referred to as an act of domestic abuse [see s 8(8)].

Where an intervention order involving domestic abuse is contested, the matter must be set for a pre-trial conference after no more than one adjournment, and if the matter does not resolve at that pre-trial conference, it must be set for trial [see Magistrates Court Rules 1992 r 18.22].

In Police v Giles[2013] SASC 11, the Chief Justice confirmed an interim intervention order on an appeal against its revocation by a magistrate. Although he made findings that the defendant did in the past commit acts of abuse against the protected person both before and after their relationship came to an end [at [37]-[40], he also made the following observations at [30]-[31]:

"First there is no requirement that the facts from which the reasonable suspicion is drawn themselves constitute an act of abuse. Secondly it is not a statutory requirement that those facts or events be recent, or have occurred before or after the breakdown of a relationship.

As to the first observation, there is no doubt that an order could be based on evidence of a statement of an intention to commit an act of abuse even if the communication was not made to the victim or, indeed, in the case, for example, of a personal diary note, to anyone else at all. As to the second observation, the temporal connection of the past event to the application is a relevant consideration, but, depending on the nature of the circumstances, an event occurring many years earlier may nonetheless found a reasonable suspicion that the defendant will commit an act of abuse. "

When is the issuing of the order appropriate?

In determining whether it is appropriate to issue an order and the terms of an order, the issuing authority must recognise and take into account:

  • that abuse occurs in all areas of society;
  • that abuse may be overt or subtle, isolated or patterned;
  • the importance of preventing it and preventing children from being exposed to it;
  • that it should be designed to encourage defendants to accept responsibility and take steps to avoid committing abuse and to minimise disruptions to protected persons;
  • any relevant Family Law Act or Children’s Protection Act orders; and
  • whether it would be counterproductive.

Children

Any child who may hear or witness, or be exposed to the effects of an act of abuse committed by a defendant against a protected person(s) may also be protected by the order [see s 7(1)(b)].

What can an intervention order contain?

General terms

An intervention order may impose any prohibition or requirement upon a defendant [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12].

It may prohibit the defendant from:

  • approaching within a specified distance of the protected person(s);
  • contacting, harassing, threatening or intimidating the protected person(s);
  • from being on or near premises at which a protected person(s) resides, works or frequents;
  • damaging specified property; and/or
  • causing or allowing another person to engage in the behaviour listed above.

It may require the defendant to:

  • surrender specified weapons or articles;
  • return specified personal property to the protected person(s);
  • allow a protected person(s) to recover or access specified personal property;
  • undergo an assessment by the intervention program manager;
  • undertake an intervention program; and/or
  • meet conditions of any other particular prohibition or requirement.

Firearms terms

An intervention order must include firearms terms. These require the defendant to surrender any firearms in their possession as well as any firearm licence or permit. While an intervention order remains in force against the defendant, he or she is disqualified from holding or obtaining a licence or permit for a firearm and prohibited from possessing a firearm in the course of his or her employment [see s 14(1)]. If the Court is satisfied that the defendant has never been guilty of violent or intimidatory conduct and needs to have a firearms for purposes relating to earning a livelihood, then the firearms terms need not be included [see s 14(2)].

Defendant’s proprietary interests

An intervention order may be issued against a defendant in relation to property despite the fact that the defendant may have a legal or equitable interest in the property [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(5)].

If the defendant and the protected person(s) lived together in rental housing before the intervention order was made, and the defendant is a party to the rental agreement, a tenancy order can be made in addition to the intervention order. A tenancy order gives the defendant’s interest in the tenancy agreement to a specified person(s). Any bond paid by the defendant is not paid out to him or her, but continues to be held as bond for the person given the defendant’s interest [see s 25].

The landlord must be notified of a probition upon a defendant being at a rental property and the intention to obtain a tenenacy order using Form 38 [Magistrates Court Rules 1992 r 18.12]. An applicant must seek directions from the Court as to the service of this notice upon the landlord, existing tenants and any assignees [r 18.21].

A landlord who has been notified that a defendant is prohibited from being on rented premises , but nevertheless provides the defendant with a key to the premises or otherwise assists or permits the defendant to gain access to the premises is guilty of an offence [see s 32].

If a defendant is prohibited from going to a home he or she rents or owns, the duty solicitor can ask the Court to make an order for the return or collection of specified items of the defendant's property from the home.

Family Law Courts parenting orders

If there are children living with the person protected by the order, then the order may prohibit the defendant from spending time or communicating with them. If possible, the order should be designed to take the children’s need to see the defendant into account [s 10(2)]. When the police issue an interim intervention order they must advise the Court of any relevant parenting or care and protection orders at the first return date [Magistrates Court Rules 1992 r 18.01(c)].

The Court may make the intervention order subject to Family Law Courts parenting orders. However, the Court may also vary, suspend or discharge an existing parenting order provided there is material before it that was not before the Family Law Courts [see s 16 and Family Law Act 1975 s 68R].

Who may apply to the Court?

The following persons may apply to the Court:

  • a police officer;
  • any person (adult or child) against whom it is alleged the defendant may commit an act of abuse or their suitable representative with the permission of the Court;
  • any child who it is alleged may hear or witness, or be exposed to the effects of an act of abuse committed by a defendant against a protected person(s); and
  • if there is a Children’s Protection Act order under s 38 of the Children's Protection Act 1993 (SA) in force in respect of any child parties, the Minister responsible for that Act.

If the person entitled to apply is a child, the application may be made by:

  • if the child is over the age of 14 years, with the permission of the Court; or
  • if the child is under the age of 14 years, their parent or guardian, or other suitable representative with the permission of the Court.

[See s 20 Intervention Orders (Prevention of Abuse) Act 2009 (SA)]

The process: How does a person get an intervention order?

Police issued orders

A police officer of or above the rank of sergeant (or with the authority of a police officer of or above that rank) may issue an interim intervention order against a defendant if:

  • it appears there are grounds for issuing the order; and
  • the defendant is present or in custody [seeIntervention Orders (Prevention of Abuse) Act 2009 (SA) s 18].

A police issued interim intervention order serves as an application to the Court for an intervention order and a summons to the defendant to appear in Court for the hearing and determination of the application [see s 18(5)].

For information regarding the police powers of arrest and detention to facilitate the preparation, service and enforcement of intervention orders see Arrest for intervention orders.

The police officer issuing the interim intervention order must:

  • identify themselves, their rank and the relevant AP number on the order;
  • record in writing the grounds for issuing the order;
  • advise the Court of any relevant parenting or care and protection orders on the first return date;
  • arrange for affidavit evidence or relevant witnesses to attend the Court to give evidence; and
  • apply before the hearing for a protected person to give evidence via audio-visual link.

See Magistrates Court Rules 1992 r 18.01.

On the first return date, the Court will hear evidence as to the grounds for the order and where possible, keep an audio-visual record of any oral evidence. If the defendant contests any factual matter or the confirmation order, the evidence given at the first return date will be considered to be part of the evidence in chief adjourned to a later date fixed by the Court [r 18.03]. A defendant or the defendant's solicitor is entitled, upon request, to be given a copy of the audio-visual recording of the protected person's evidence or view it under the supervision of the Registrar [r 18.29].

Court issued orders

If an application is made direct to the Court, the Court must:

  • hold a preliminary hearing as soon as practicable; and
  • without summoning the defendant to appear [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21(1)].

The Court may issue an interim intervention order at this hearing if it appears there are grounds for doing so [see s 21(3)].

An interim intervention order issued by a Court will also serve as a summons for the defendant to appear in Court for the hearing and determination of the application [see s 21(9)].

If the applicant (other than a police officer) alleges non-domestic abuse, the Court must consider whether mediation is an option before making an order [see s 21(4)].

Determination hearing

After the issuing of an interim intervention order by the police officer or Court, the defendant will be required to appear in Court within 8 days (or 2 days after the Court next commences sitting at that place) [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18(3)].

If the defendant does not appear, the order may be made final [s 23(2)].

At this hearing the Court may:

  • confirm the interim intervention order;
  • substitute the intervention order for a different final order;
  • dismiss the application and revoke the interim intervention order;
  • adjourn the hearing if necessary, for example, if the defendant has not yet been served;
  • if the defendant contests the application, set another date for hearing evidence.

If a defendant wants to dispute an order or the terms of an order, they must attend this hearing. Otherwise the order may be made final, and the defendant breaches the order he or she may face a criminal charge.

Special arrangements for evidence and cross-examination

The Court may order that special arrangements be made for the taking of evidence from a protected person [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 29]. A defendant may not personally cross-examine a protected person. Cross-examination is either to be done his or her lawyer or through the Court’s nominee [see 29(4)].

Where a defendant is not represented by a lawyer, must submit any proposed questions in writing to the Court before the hearing and the Court may give directions to permit further questions as the hearing progresses [Magistrates Court Rules 1992 r 18.24].

Bail proceedings

If the prosecution is made aware that the victim or other person connected to the proceedings for an alleged offence feels a need for protection from the alleged offender, they must ensure this is brought to the attention of the bail authority. The bail authority must then consider applying for, or if the Court, making an intervention order, as if an application had been made [see Bail Act 1985 (SA) s 23A].

Upon finding of guilt or sentencing

An intervention order may be made by a Court upon a finding of guilt or sentencing as if an application had been made [see Criminal Law (Sentencing) Act 1988 (SA) s 19A]. See also Sentencing chapter.

National recognition

From 25 November 2017 local and interstate intervention orders (declared as addressing a domestic violence concern) are recognised and enforceable nation-wide under provisions in the Intervention Orders (Prevention of Abuse) Act 2009 (SA)[s 15A]. Foreign orders (e.g. an intervention order issued in New Zealand) may also be recognised Australia wide. In the case of foreign orders registration of the order is required.

If an order is a recognised intervention order (declared as addressing a domestic violence concern) it can be:

  • recognised and enforced in any jurisdiction [ss 29D, 29I, 29L]

  • varied in any jurisdiction [s 29E]

  • revoked in any jurisdiction [s 29F]

For those orders issued prior to commencement (i.e. before 25 November 2017) an application to the court for a declaration that the order addresses a domestic violence concern is necessary before it can be recognised and enforced in other states [ss 29ZB – 29ZF]. The application is made on a form 46A [see Courts Administration Authority’s website].

When do they come into force and how long do they last?

When does an intervention order come into force?

An intervention order (whether interim or final) usually comes into force only once served upon the defendant personally [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 18(4), 21(8), 22(5), 26(7)].

How long does an intervention order last?

An intervention order is ongoing and continues in force until it is revoked [see s 11].

Who may apply to vary or revoke an order?

A defendant has to wait at least 12 months after the order was issued to apply to vary or revoke it [see ss 15(2) and 26(3)]. The Court may fix a longer date before which the defendant may apply [see s 15(1)].

If the Court is not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied, it may dismiss the application [see s 26(4)(b)].

Unlike a defendant, a police officer or protected person(s) may apply to vary or revoke an intervention order at any time [see s 26(1)].

The police may decline to apply to vary or revoke an intervention order on behalf of a protected person if they believe it will put the protected person at increased risk.

What if the defendant breaches the intervention order?

It is a criminal offence to breach an intervention order [see s 31].

The maximum penalties are set out in s 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).

Can the protected person be charged?

A protected person cannot give a defendant permission to breach an intervention order, nor can they be charged with aiding, abetting, counselling or procuring the breach [see ss 17 and 31(3)].

Are restraining orders still made?

Any restraining orders in force under either the Domestic Violence Act 1994 or the Summary Proceedure Act 1921 (SA) immediately before the commencement of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) continue in force as if they were intervention orders [see s 37].

There are now only two specific types of restraining order that may be made under Summary Proceedure Act 1921 (SA). One is a Paedophile restraining order [see s 99AA] and the other is a Child Protection restraining order [s 99AAC].

See Magistrates Court Rules 1992 rr18A.01 - 18A.11.

Magistrates Court Diversion Program

This diversion program aims to address recidivism by providing assistance to defendants who suffer from a mental impairment to address their mental health and related offending behaviour. The program is sometimes referred to as the Mental Health Diversion Program. The Magistrates Court Diversion Program (‘MCDP’) is available from the Adelaide, Port Adelaide, Mt Gambier, Murray Bridge, Berri, Port Augusta and Whyalla Magistrates Courts as well as the Youth Court of South Australia. Christies Beach and Elizabeth Magistrates Courts offer an intervention to defendants suffering from a mental impairment under the Treatment Intervention Program.

Section 269 matters

The Magistrates Court Diversion Program should not be confused with the “section 269 court” which deals with defendants who have a limited defence based on mental health grounds under the Criminal Law Consolidation Act 1935 (SA), Part 8A. The hearing of section 269 matters are not intervention programs as such and are governed by the provisions of the Criminal Law Consolidation Act 1935 (SA), Part 8A [see ss 269C and 269H and Mental Health Issues chapter]. There is a specialist section 269 court which sits regularly - approximately fortnightly - in the Adelaide Magistrates Court. In suburban and regional courts section 269 matters are normally dealt with as they arise by a part-heard Magistrate.

By contrast, the Magistrates Court Diversion Program aims to assist those defendants who would not have available to them a mental incompetence or mental unfitness defence in accordance with section 269 of the Criminal Law Consolidation Act 1935 (SA), but who nevertheless suffer from some sort of mental impairment and their mental impairment has contributed to their offending behaviour.

It is worth noting, however, that it is not uncommon for defendants who do have a section 269 defence but are charged with only very minor offences to choose to seek acceptance into the Mental Health Diversion Program rather than proceed with a section 269 defence because the program offers practical support and monitoring of their disability over a period of time without the requirement to enter a plea of guilty.

Referral Process

Referrals for assessment for participation in this program are made from any originating court, and may be requested by the court, the defendant, prosecution, or defence counsel. A completed referral form must be handed to the clerk of the referring court, who will then forward the form to the diversion program. The matter is then transferred to the diversion court for the next available sitting day.

ASSISTANCE WITH OBTAINING LEGAL REPRESENTATION

Where a defendant is granted bail, it is important that the duty solicitor advise him or her to lodge an application for legal aid as soon as possible, and to include in it a note that they wish to apply for the Magistrates Court Diversion Program. Where a defendant is refused bail, it is important that the duty solicitor clearly mark the “urgent in custody” application at the top with “possible Magistrates Court Diversion Program applicant”. The file will then be assigned to the appropriate in-house solicitor.

UNREPRESENTED DEFENDANTS

Should a duty solicitor become aware of an unrepresented defendant who wants to apply for assessment for the Magistrates Court Diversion Program, or who has recently been diverted for assessment for the program, the defendant should be encouraged to apply for legal aid and to indicate in the application an interest in applying for the diversion program. The Legal Services Commission employs a number of solicitors who work regularly in that jurisdiction.

Where a duty solicitor has an unrepresented defendant who may be eligible for the diversion program and would be eligible for legal aid under the Means/Assets Test, but who has previously been refused legal aid on the grounds that the offence is minor and would not normally carry a risk of imprisonment, it is important that advice is given that the guidelines can, in appropriate cases, be waived. Legal aid may be granted as an exceptional case where the person suffers a mental health disability such that he or she would be disadvantaged if unrepresented. In such a case it is helpful for the duty solicitor to submit a request to Assignments asking that the guidelines be waived on the grounds of mental disability and disadvantage. This also applies to defendants with minor charges who may have an actual defence under section 269 but would not normally come within matter guidelines.

If the application for legal aid is granted following reconsideration, the matter would normally be assigned to one of the in-house solicitors who have experience with clients with mental health disabilities and who appear regularly in the Magistrates Court Diversion Program and the section 269 court. However, if an unrepresented defendant has previously been refused legal aid on Means (as distinct from the matter guidelines) you can best assist through the provision of the names and contact addresses of three private solicitors.

Eligibility criteria

Eligible applicants for the Magistrates Court Diversion Program must be over 18 years of age, charged with a summary and/or minor indictable offence(s), and have impaired intellectual or mental function. Section 19C of the Criminal Law (Sentencing) Act 1988 (SA) defines mental impairment as ‘an impaired intellectual or mental function resulting from a mental illness, an intellectual disability, a personality disorder, or a brain injury or neurological disorder (including dementia) ’ [see s 19C(5)].

Eligibility and acceptance into the program is a matter for the Magistrate’s discretion, but it is normally a requirement that there be at least a contributing connection between the defendant’s mental impairment and his or her commission of the acts charged. It is not necessary to show that the offence occurred ‘ in consequence of the mental impairment ’ as is required under the stricter provisions for a defence of mental incompetence under section 269C of the Criminal Law Consolidation Act 1935 (SA).

The criteria are essentially the same for applicants for the Youth Court Diversion Program for defendants under 18. However the Youth Court Diversion Program can accept defendants with major indictable charges and, in those cases, the defendant is sentenced by one of the Youth Court Judges on completion of the program [see Youth Court chapter].

Assessment report

Applicants are contacted by letter by the Diversion Program staff and are required to attend an appointment for assessment before their first appearance in the Diversion Court. Following their assessment interview, they appear in court with the recommendations of the assessment report made available to the sitting Magistrate, defence and prosecution. Applicants are assessed by the court’s Clinical Advisors who are qualified psychologists. The assessment report includes an assessment of the defendant’s personal and medical background and mental health functioning, a summary as to whether the applicant is suitable for the program and an outline of any specific needs to be addressed during the course of the program.

A Magistrate who is considering whether to accept a defendant into the Diversion Court Program, is not bound by the guidelines for the program [see H v Police (2005) 91 SASR 329; [2005] SASC 143]. The decision as to whether a defendant is to be accepted into the program is a matter for the court’s discretion. Even where the Preliminary Assessment Report indicates that the defendant is “not recommended” for the program, the court may still be persuaded by defence submissions that there are good grounds for allowing the defendant to participate.

Those defendants who are not accepted into the program, will have their matters sent back to the general court list for finalisation at a later date and retain their rights to conduct a defence in accordance with the Criminal Law Consolidation Act 1935 (SA) s 269 [see Mental Health Issues chapter].

Acceptance into program

It is a requirement that the defendant’s participation in the program, if accepted, be voluntary, and the defendant can only be accepted into the program if he or she is admitting the objective (factual) elements of the offence(s). It is not normally necessary for the defendant to formally enter a plea of guilty, but it is a requirement that the defendant admit the factual circumstances alleged. Legal proceedings are adjourned for a period of six months to allow the defendant to access relevant support services, with the defendant attending court bi-monthly for progress reviews (there are usually two) conducted by the sitting Magistrate. A participating defendant is assigned a Clinical Liaison Officer who is there for support and to monitor the progress of the defendant.

Progress reports

Reports are provided to the Magistrate at approximately two month periods outlining progress, success and any difficulties or set-backs faced by the defendant for each review period. The court has discretion to extend the defendant’s participation in the program beyond the usual six months where the defendant may benefit from a longer period of participation.

Progress summary report and sentencing considerations

At the end of the defendant’s participation in the program, the court is provided with a report summarising the defendant’s progress and achievements during the course of the program. This report is considered during the subsequent sentencing of the defendant. Upon successful completion of the diversion program, where the defendant pleads guilty as charged, the Magistrate may consider finalising the charge without conviction or penalty, or may consider any other sentencing option. Where a penalty is likely to be imposed, the defendant retains the right to pursue a defence in accordance with the Crimnal Law Consolidation Act 1935 (SA) s 269 [see Mental Health Issues chapter]. The court also has an important discretion to simply dismiss any charge without a plea being taken or any finding of guilt recorded.

Without conviction or penalty

The Criminal Law (Sentencing) Act 1988 (SA) section 19C(1) empowers a court to release a defendant who has been found guilty of a summary or minor indictable offence without conviction and without penalty where the court is satisfied that:

  • The defendant suffers from a mental impairment which explains and extenuates, at least to some extent , the conduct which constitutes the elements of the offence [see s 19C(1)(a)(i); Dokowicz v Police [2008] SASC 154]; and
  • The defendant has completed or is participating in a satisfactory manner in an intervention program [see s 19C(1)(a)(ii)]; and
  • The defendant recognises that he or she suffers from the mental impairment and is making a conscientious attempt to overcome the associated behavioural problems [see s 19C(1)(a)(iii)]; and
  • Release of the defendant does not pose an unacceptable risk to the safety of a particular person or the community [see s 19C(1)(b)].

Dismissal of the charge

In addition, section 19C(2) of the Criminal Law (Sentencing) Act 1988 (SA) empowers a court to dismiss a charge of a summary or minor indictable offence without any plea being entered (such as where the matter has not been “finally determined”), where:

  • The defendant suffers from a mental impairment which explains and extenuates, at least to some extent, the conduct which constitutes the elements of the offence [see s 19C(2)(a)(i); Dokowicz v Police [2008] SASC 154]; and
  • The defendant has completed or participated in a satisfactory manner in an intervention program [see s 19C(2)(a)(ii)]; and
  • The defendant recognises that he or she suffers from the mental impairment and is making a conscientious attempt to overcome the associated behavioural problems [see s 19C(2)(a)(iii)]; and
  • Release of the defendant does not pose an unacceptable risk to the safety of a particular person or the community [see s 19C(2)(b)]; and
  • The court would not (if a finding of guilt were made) make an order for compensation for injury, loss or damage arising from the offence [see s 19C(2)(c); s 13 whereby the court must not make an order for compensation if the defendant lacks the means to pay, or if payment of the amount would unduly prejudice the welfare of the defendant’s dependants].
MENTAL INCOMPETENCE OR UNFITNESS TO STAND TRIAL

In cases where the defendant would have a defence of mental incompetence or is unfit to stand trial under the Criminal Law Consolidation Act 1935 (SA) ss 269C or 269H, but has chosen to participate in the diversion program, it should always be submitted to the court that dismissal of the charge under s 19C(2) is the only appropriate course, as the defendant should not enter a plea of guilty where a viable defence is available. If the court declines to proceed under s 19C(2) counsel should respectfully submit that the matter must be referred to the pre-trial conference list to pursue an investigation under the Criminal Law Consolidation Act 1935 Part 8A [see ss 19C(2), 269C, 269H and Part 8A].

Release on undertaking to complete the program

In accordance with section 19C(3), where a defendant is participating in an intervention program but has not yet completed the program, a court may, instead of releasing the defendant under s 19C(2), release the defendant on an undertaking that they will complete the program and then appear before the court for determination, or appear before the court for determination if they fail to complete the program [see Criminal Law (Sentencing) Act 1988 (SA) s 19C(3)]. This provision is not being used, as is also the case with s 42(1)(da), possibly because it would undermine the requirement that participation in a diversion program must be voluntary. [see s 42(1)(da) and Intervention program as a condition of bond].

The provisions of s 19C apply to all Magistrates and Youth Court intervention programs and are not confined to the Mental Health Diversion Program alone.

Other sentencing options

Where ss 19C(1) and 19C(2) are not raised, the court will proceed to sentence according to normal sentencing principles, but where a defendant has successfully completed the program the court may treat the defendant’s participation and achievements favourably as relevant to leniency in sentence [ see Criminal Law (Sentencing) Act 1988 (SA) s 10(5)]. However, the fact that a defendant has not participated in, or has performed badly in, or has failed to make satisfactory progress in an intervention program cannot be treated as an aggravating factor relevant to sentence [see s 10(6)].

Where a court sentences a defendant following participation in the diversion program, any applicable mandatory sentence must still apply. For example, the mandatory minimum twelve month licence disqualification where a person is sentenced for illegal use or illegal interference with a motor vehicle in accordance with the Criminal Law Consolidation Act 1935 (SA) s 86A(4) [see Criminal Law (Sentencing) Act 1988 (SA) s 20 and Criminal Law Consolidation Act (SA) s 86A(4)].

Treatment Intervention Program

Empirical research from social science disciplines such as psychology, psychiatry, criminology, social work, medicine and correctional services confirms a relationship between illicit drug use and mental health problems. As such, there is a growing awareness of the link between illicit drug use and mental health: the high rate of occurrence of co-morbidity whereby a person suffers from both conditions at the same time, and the need for intervention and treatment which addresses both conditions, preferably as early as possible. In addition, illicit drug use and mental health problems are identified as criminogenic factors associated with criminal behaviour and research indicates there is a high rate of co-morbidity amongst criminal offenders.

Treatment court programs, such as that offered through the Treatment Intervention Program (TIP), recognise the complex interplay between mental health issues, drug dependence and criminal offending, and are able to provide intervention and treatment which address both problems simultaneously. This approach aims to improve the health and wellbeing of the participant and reduce recidivism rates by stabilising the defendant’s mental condition and by addressing his or her drug dependence.

The Treatment Intervention Program (TIP) commenced in the Christies Beach Magistrates Court in June 2010 and in May 2011 in the Elizabeth Magistrates Court. The program replaces the Magistrates Court Diversion Program in these courts. The court sits once a fortnight (on alternative Fridays) in the Christies Beach Magistrates’ Court and accepts applicants with summary and minor indictable offences which are related to illicit drug dependence, or mental health problems, or both. The court is non-adversarial and each participant directly interacts with the judicial officer when he or she appears in court.

The TIP offers three separate intervention and treatment streams, namely: co morbidity (for those defendants with substance use issues and mental health problems), a six month drug court program for those defendants with substance use issues only, and a mental health/impairment program for those defendants with mental health problems only. All programs are of six months duration, however there is scope for participation to be extended in order to maximise treatment outcomes. Each defendant is subject to an individual treatment plan to address his or her particular treatment needs.

The program offers assistance and treatment through group therapy, intensive supervision, case management and, where necessary, urine testing. The participants are encouraged to engage with the Magistrate when they appear in court.

There is also a Youth Treatment Intervention program through the Youth Court and there is the Port Adelaide Nunga Court Treatment Program. See further: http://www.courts.sa.gov.au/OurCourts/MagistratesCourt/InterventionPrograms/Pages/Treatment-Intervention-Court.aspx

Referral process

Criminal matters can be diverted to the TIP court list from the general list for an application for assessment for participation in the intervention program. Guilty pleas must be entered to the majority of criminal matters before the court. Disputed matters must remain in the court of origin until they resolve (by plea or a finding of guilt) and may later join all other matters listed in TIP court. Of note, there is flexibility to accept defendants who do not have matters which originate in the Christies Beach or Elizabeth Magistrates Court. Acceptance into the TIP at either court may be based upon a consideration of where the defendant lives and his or her ability to access treatment.

Eligibility criteria

The TIP is available to defendants who have entered guilty pleas to the majority of offences or, in the case of those defendants with mental impairment, an admission that the factual elements of the charge are not contested and who are assessed as requiring an intervention by way of addressing illicit drug use, mental health problems, or both. It is important to note that this program does not replace the intensive Drug Court program offered through the Adelaide Magistrates Court, and defendants may be referred to the Drug Court based on the TIP assessment recommendations. The bail conditions for participants vary between simple bail and home detention depending on the requirements of the court for the particular defendant.

Assessment report

Assessments are currently undertaken from the Christies Beach Magistrates Court by the Program Supervisor, and can occur in custody. The assessment includes a recommendation as to whether the applicant is suitable for an intervention, an assessment of illicit drug use and/or mental impairment (which may also require a detailed psychological report) and which intervention stream would best address the intervention needs of the applicant. In addition, an individual case plan is designed to address individual needs.

If a defendant is not recommended for the program, the matter is usually returned to the court of origin for sentencing. The Magistrate sitting in the TIP court has discretion to hear submissions by the defendant and prosecution in relation to the assessment report, and may accept a defendant into the program regardless of the recommendation.

Acceptance into program

Most participants initially appear in the court on a fortnightly basis and are subjected to regular urine testing to establish whether or not they are using illicit substances. Persons accepted into the mental health/impairment stream with no history of illicit drug use may be required to appear at court less frequently, usually bi-monthly. The TIP is designed to move defendants across one treatment stream to the other in order to address issues as they arise.

Progress reports

Progress reports are provided to the Magistrate for each court appearance and outline progress, success and any difficulties or set-backs faced by the defendant for each review period. At each progress review, the Magistrate will discuss breaches of bail conditions, drug use and any other issues directly with the defendant. Failure to make positive progress on the program, ongoing breaches of conditions, and re-offending may lead to the termination of the defendant’s participation in the program. The court also has discretion to extend the defendant’s participation in the program beyond the usual six months where the defendant may benefit from a longer period of participation.

Progress summary report and sentencing considerations

At the end of the defendant’s participation in the program, the court is provided with a report summarising the defendant’s progress and achievements during the course of the program. The report will also provide a summary as to whether or not progress has been satisfactory. This report is taken into consideration when the defendant is subsequently sentenced by the court.

Youth Court

Court intervention programs are available for youth through the Youth Court of South Australia [see Youth Court chapter].