What are indictable offences?

Indictable offences are offences that are not summary offences. Indictable offences have a maximum penalty of more than 2 years imprisonment or a 240 penalty unit fine unless prescribed by the relevant legislation.

A defendant facing an indictable charge always has the right to have the matter heard before a jury made up of the defendant’s peers, either in the County Court or Supreme Court. However, 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 usually far less expensive and much quicker.

The disadvantage for a defendant is that instead of coming before a jury, their matter will be decided by a single magistrate sitting in the Magistrates’ Court. Whether you should consent to the matter being heard in the summary jurisdiction is always something that should be discussed with your lawyer.

Indictable offences that can be heard summarily

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 can also be heard 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 Committal Mention or Committal Hearing, these charges could be reduced to ones able to be heard in the Magistrates’ Court.

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 heard 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.