Being prosecuted and going to court
You can elect (choose) to be prosecuted for an offence alleged in an expiation notice.
You can elect to be prosecuted either immediately after receiving an expiation notice, or after unsuccessfully applying for a review of an expiation notice. It is recommended that legal advice be obtained before electing to be prosecuted.
An election to be prosecuted cannot be made, however, after:
- the day on which you enter into a payment arrangement or other arrangement is made with the Fines Enforcement and Recovery Unit to deal with the expiation notice [see section 20 of the Fines Enforcement and Debt Recovery Act 2017 (SA); section 8 (2)(a) of the Expiation of Offences Act 1996 (SA)]; or
- the day on which an enforcement determination is made by the Fines Enforcement and Recovery Unit to enforce an unpaid expiation notice [see section 22 of the Fines Enforcement and Debt Recovery Act 2017 (SA); section 8(2)(b) of the Expiation of Offences Act 1996 (SA)].
Therefore, if you leave it too late to elect to be prosecuted, or change your mind after entering into a payment arrangement to pay off the expiation notice, you cannot elect to be prosecuted. Similarly, once you elect to be prosecuted, you cannot change your mind and seek to be expiated.
Where the Fines Enforcement and Recovery Unit makes an enforcement determination on an unpaid expiation notice, but later revokes that determination, you can still elect to be prosecuted within 14 days of being notified of the revocation [see Expiation of Offences Act 1996 (SA) s 8(2a)].
When you are prosecuted for an offence, the matter goes before the Court and you are required to plead guilty or not guilty.
Whether you plead or are found guilty following a trial, you will be given an opportunity to tell the Court what penalty, if any, you believe you should receive for the offence and why. This may include whether or not you should be convicted of the offence.
If the Court convicts you of the offence, the conviction will appear on any subsequent police check you have conducted (see ‘Criminal records’). The Court may require you to pay not only a court fine as penalty, but also prosecution and court costs and levies.
For these reasons, if you are thinking about electing to be prosecuted, it is usually a good idea to get some legal advice before making a decision.
An authority can expressly withdraw an expiation notice for the purpose of prosecuting you within 60 days of the date of the notice, but not after an enforcement order is made.
See Expiation of Offences Act 1996 (SA) ss 6(1)(f), 8 and 16.
See also Fines Enforcement and Debt Recovery Act 2017 (SA) Part 4.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.