What are indictable offences?
In Victoria there are two categories of offences, summary offences and indictable offences. Indictable offences are offences that carry a heavier maximum penalties and a right to be heard before a judge and jury. Summary offences are considered less serious and do not carry that same right.
Section 112 of the Sentencing Act 1991 prescribes that in Victoria indictable offences are all offences that carry a maximum penalty of more than 2 years (or level 7) imprisonment or a fine of more than a 240 penalty units or both, unless the contrary intention appears in the relevant act that contains the charge.
The distinction between summary offences and indictable offences is important because a defendant facing an indictable offence has the right to have their matter heard before a jury in the County or Supreme Court. However, where possible, a defendant will usually consent to a matter proceeding in the Magistrates’ Court. This is because having the matter heard in the Magistrates’ Court is far less expensive, much quicker and more easily appealed, particularly when the matter is proceeding as a plea of guilty.
The disadvantage for a defendant in relation to contesting a matter in the Magistrates Court is, that instead of being judged by 12 members on a jury, the matter will be decided by a single Magistrate sitting in the Magistrates’ Court. Whether you should consent or not consent to a matter being heard in the summary jurisdiction (triable summarily) is always something that should be discussed with your lawyer.
Procedures for an indictable offence
Just because a charge is an indictable offence does not always mean that it has to go to the County Court or the Supreme Court for a jury trial or be finalised before a judge. Many indictable offences can proceed in either the summary stream or the indictable stream. Put simply, the indictable stream or committal stream as it is commonly known is just a more formal and systemised way of hearing what the parliament considers to be more serious charges.
The summary stream is a far quicker process. To work out whether an indictable offence can be heard in the summary stream should always be done in consultation with a lawyer, but to read more about this, the legislation is analysed below.
Indictable charges that have a maximum penalty of 10 years or less can be heard in the Magistrates’ Court with the consent of the defendant and the willingness of the Magistrate. Offences that have higher maximums than 10 years are also triable in the Magistrates’ Court if the charges appear in schedule 2 of the Criminal Procedure Act 2009.
Some charges might start in the indictable stream that can only be heard in the County or Supreme Courts. However, after a Filing Hearing, Committal Mention or Committal Hearing, negotiations with the prosecution can lead to a reduction in the charges. For more information see the committal stream.
When this happens (in accordance with section 28 of the Criminal Procedure Act 2009) a defence lawyer can make an application for the offence/s to be heard in the summary jurisdiction. The Court will consider section 29 of the Act when making an order to have the indictable matter triable summarily.
When an indictable offence may be heard and determined summarily
(1) The Magistrates’ Court may hear and determine summarily a charge for an offence to which section 28(1) applies if—
(a) the court considers that the charge is appropriate to be determined summarily, having regard to the matters in subsection (2); and
(b) the accused consents to a summary hearing.
1 Section 82 provides for a summary hearing without consent in the case of a corporate accused which fails to appear in answer to a summons.
2 Section 168(3) provides that a charge transferred by order under that section must be heard and determined summarily
(2) For the purposes of subsection (1)(a), the Magistrates’ Court must have regard
(a) the seriousness of the offence including;
(i) the nature of the offence; and
(ii) the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances; and
(iii) whether the offence forms part of a series of offences being alleged against the accused; and
(iv) the complexity of the proceeding for determining the charge; and
(b) the adequacy of sentences available to the court, having regard to the criminal record of the accused; and
(c) whether a co-accused is charged with the same offence; and
(d) any other matter that the court considers relevant.
(3) A legal practitioner appearing for an accused may, on behalf of the accused, consent to a summary hearing of a charge for an indictable offence.
(4) Nothing in subsection (2) applies to a proceeding in the Children’s Court.
(5) If a body corporate and a natural person are jointly charged with an indictable offence which may be heard and determined summarily, the Magistrates’ Court must not hear and determine the charge summarily against either of the accused unless—
(a) each of them consents to a summary hearing; or
(b) if the body corporate fails to appear in the proceeding, the natural person consents to a summary hearing and the court proceeds under section 82 to hear and determine the charge in the absence of the body corporate.