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  • Indictable Offence in Australia

    If you receive a court summons for an offence that proceeds before the District, Supreme and any other higher court, it is an indictable offence. Although the laws regarding how a matter proceeds to the higher courts may vary across the States and Territories, there are minor variations in the classification of offences.

    Indictable offences will show up on a criminal record check certificate. Due to the serious nature of indictable offences, they are not eligible to get expunged as a spent conviction from a person's criminal record, even after a certain period of time has elapsed.

    What is an indictable offence?

    Indictable offences are considered more serious offences than summary offences. It also attracts severer punishments (longer jail terms) in the various State and Territory Acts and the Commonwealth Crimes Act 1914. In general (but not in all instances), indictable offences tend to carry imprisonment terms longer than two (2) years. It also has various legislations across the States and Territories depending on the jurisdiction of the case.

    Major indictable offences include and are not limited to: Serious offences such as threatening or endangering someone's life, murder offences, rape offences and others as stipulated by law.

    For an indictable offence, the accused person has the right to hear the matter before a Judge or Jury in a higher court. A higher court is either a District Court or Supreme Court. However, there may be initial proceedings (committal hearings) before the matter finally proceeds to the higher court.

    Can an indictable offence be treated Summarily?

    Many indictable offences can be handled in a magistrate court (Local Court) as a summary offence. If this happens, the Magistrate will treat it as a summary offence and impose penalties not more than three years imprisonment.

    In New South Wales, Queensland, or Southern Australia, a summary offence may also be a minor indictable offence.

    What makes an offence indictable?

    Indictable offences are matters that usually have grievous and severer impacts on the victim or the State and public property. Offences with circumstances of aggravation are always treated as indictable offences.

    However, the individual State legislation in Australia further defines what makes an offence indictable.

    Although some offences are strictly indictable nationwide; Rape, Robbery, Murder, Terrorism and treason. Other crimes being handled as indictable offences will depend on the individual State or Territory laws.

    What are the procedures for treating an indictable offence Summarily?

    When an indictable offence proceeds before the Magistrate, it will be handled as a summary offence. And it will involve the same process as if the offence is originally a summary offence.

    Following the same process, the Court will issue a first date where all parties (prosecutor/accuser and defendant) will present their cases. It is also known as the mentioned date; the defendant can choose to plead guilty or not after hearing the charge read in Court.


    At the Magistrate

    If the Magistrate is not satisfied with some aspects of the matter, they will adjourn the case. Some of such instances include where;

    • The defendant needs to get a legal representative,
    • The parties want to summon a witness,
    • The Magistrate requested more evidence or investigation to the case,
    • Both parties want to agree on an alternative proceeding.

    If the defendant is on bail during this period, they must attend this court hearing.

    Furthermore, the Magistrate may issue sentencing on that same day if the defendant pleads guilty to the charge. However, the Magistrate will conclude the hearing and proceed to a contested mention if the defendant argues not guilty to the case.

    At the final hearing (contest mention), the Magistrate will issue sentencing regarding the innocence or guilt of the defender.

    What type of indictable offences are handled summarily?

    There is hardly a general list of indictable offences that are heard summarily. Instead, it depends on the stipulations or definitions in the individual legislations and Acts.

    Also, some State laws allow an indictable offence to be heard summarily if both parties agree to have such offence handled by a Magistrate.

    An example is Queensland’s Criminal Code Act 1889; Section 552A or 552B allows such offences to be heard summarily under the conditions.

    The legislation of Victoria may also allow an offence to be heard summarily with the defendant's consent. Some of these offences include cases of theft, indecent/common assault, or property damage.

    In NSW, the Crimes Act 1900 stipulates offences handled as;

    • Indictable,
    • Summary, or
    • Indictable but handled summarily.

    Offences that are heard summarily are concluded faster than other indictable offences and attract lesser penalties.

    How does a matter proceed for an indictable offence?

    Before the matter (indictable offence) reaches the hearing, the judge or Jury passes through a committal mention at the Magistrate Court. At the Magistrate, the defendant will receive a copy from the police prosecutor that details their charge.

    The Department of Public Prosecutions (DPP) prosecutes all matters that a higher court handles.

    There can also be a committal case conference at the committal hearing that helps the party resolve some grievances out of Court.

    The essence of the "committal hearing" that the magistrate court holds is to determine if there is satisfactory evidence for continuing the matter at a higher court. The Magistrate does not pronounce a person guilty or not in a committal hearing.

    The committal hearing will also assess all evidence, circumstances and arguments of the matter.

    Strictly indictable offences

    Murder, attempted murder cases, treason offences, and similar grave offences are strictly indicable offences. Other severe crimes like Rape, Armed robbery, and co are handled by a District Court (County Court in Victoria).

    For States or Territories that do not have a District or County Court, such indictable matters (not heard summarily) are handled in a Supreme Court.

    Who hears an indictable offence in Australia?

    While a Magistrate handles summary offences, indictable offences are heard by a jury of 12 people. They must explore all facts, evidence, arguments and circumstances under the law to determine the innocence or guilt of a person.

    Depending on the case, all of the jurors may agree on the verdict before issuing a sentence on the matter. In another case, a majority vote of the juror may be enough to conclude the judgment.

    Most States and Territories except the NT, Victoria and Tasmania also allow a single Judge to hear an indictable offence. In South Australia and ACT, the defendants (with the prosecutor's consent) may have to elect between a judge or a Jury hearing their matter, especially in a case of potential media bias.

    Indictable offences by the various State/Territory legislations

    With similarities to the general legislation on indictable crimes, the individual states and Territories also issue special additional laws.


    • Indictable Offences in Western Australia (WA)

    Section 3 (2) of the Criminal Code Act Compilation Act 1930 (WA) commits indictable matters before a higher court. The accused person only has the option to choose between a judge or a jury hearing the case. And the accuser may prosecute such issues at any time under Section 3 (6).

    Various laws can make an offence eligible as an indictable offence in WA, including;

    It includes offences such as;

    The Director of Public Prosecution in WA prosecutes them.

    However, some offences like assault causing bodily harm and similar other crimes are classified as "either way offences". These offences can be handled by either a District or Magistrate court.

    Penalties for Indictable Offences in WA can reach up to life imprisonment depending on the offence.


    • Indictable Offences in Tasmania (TAS)

    The Criminal Code Act 1924 in Tasmania governs the handling of indictable and other criminal offences in Tasmania. Some of these offences include; crimes relating to fraud in Tasmania, burglary in Tasmania, serious stealing offences in Tasmania, murder, manslaughter, etc.

    All indictable matters not handled as a summary offence in Tasmania are held in a Supreme Court. However, the proceeding can only begin in the Supreme Court after a prior hearing in a Magistrate Court, as explained above.

    Indictable offences that are summarily treated are usually offences where the property's value is worth less than $5,000. And the Magistrate handles such matters instead of a Supreme Court. However, the accused can still have a case where the worth is more significant than $5,000, but less than $20,000 heard in a Magistrate court as long as they agree with the prosecution.


    • Indictable Offences in South Australia (SA)

    Indictable offences that are not handled as "minor indictable offences" must be dealt with in a Supreme or District Court of South Australia. These hearings must first progress to the Magistrate court through pre-committal hearings. The Criminal Procedure Act 1921 (SA) defines conditions and circumstances that make an offence indictable in South Australia.

    Section 105 of the Act details the provisions and materials available before committing a matter to the Supreme or District Court. The Director of Public Prosecutions (DPP in SA) prosecutes all issues in a higher court and must prepare all documents for the hearings.

    There is also a time frame for the listing and hearings of all matters committed to a Supreme Court. However, the time/deadlines can be adjusted, depending on the;

    • Discretions of the Magistrate and,
    • Those mandated by the legislation.

    • Indictable Offences in the Australian Capital Territory (ACT)

    The criminal law under the Crimes Act 1900 (ACT) defines an offence in the ACT as either summary or indictable offences. All indictable offences not handled summarily will proceed to the Supreme Court. However, the Magistrate Court must assess all the evidence and matters around the case before moving to the Supreme Court.

    When matters are heard in a Magistrate Court, it does not impose penalties more than a one-year imprisonment term. And unlike most states, the ACT does not have middle courts like a District or County Court.

    Before the Supreme Court hearing, you may have to participate in a Case management hearing with a prosecutor to discuss the case. It allows the defendants to change their plea after they view the evidence with the prosecutor.


    • Indictable Offences in Victoria (VIC)

    Section 112 of the Sentencing Act 1991 in Victoria defines indictable offences as those liable to a maximum penalty terms;

    • Over two years (greater than a level 7) imprisonment or,
    • Attracting fines over 240 penalty units, or
    • Both

    The only exception is where a contrary intention or ruling appears on the Act relevant to the charge.

    The Victorian Laws also allows a defendant to elect to have their matter heard before a Jury in the County or Supreme Court.

    Examples of Indictable offences include;

    Indictable offences may be heard summarily in the Magistrate Court if;

    • The Court considers the matter appropriate,
    • The accused consents to it,
    • All parties consent to a summary hearing

    Penalties for indictable offences in Victoria are severe and reach up to life imprisonment terms.


    • Indictable Offences in Queensland (QLD)

    Section 614 of the Criminal Code Act 1899 in Queensland stipulates that all indictable offences must be charged before a Judge and Jury in the District or Supreme Court.

    A matter for indictable offence must first proceed through a committal for trial for examination.

    However, recent changes in the Queensland laws afford the Magistrate court more powers to handle some offences. The defendant can elect to have the matters before a Magistrate or a Higher Court. It depends on the circumstances of the crime.

    A person suspected of committing such grievous offences in Queensland can be arrested without a warrant.

    Some of these offences include; Murder, Rape, Manslaughter, Treason, Robbery in QLD, major Fraud offences in QLD and other serious crimes.


    • Indictable Offences in the Northern Territory (NT)

    Indictable offences in the NT are outlined in the NT’s Criminal Code Act 1983 and must first pass through a committal trial. If the Magistrate is satisfied with the circumstance and evidence, it will transfer it to the Supreme Court. Indictable offences in the NT usually attract penalties higher than two years imprisonment.

    The matters that are strictly indictable include;

    • Murder,
    • Manslaughter,
    • Sexual offences.

    All Criminal cases must first proceed through the Magistrate Courts of the NT before the Supreme Court (indictable offences).


    • Indictable Offences in New South Wales (NSW)

    In New South Wales (NSW), the Criminal Procedure Act 1986, governs the prosecution and sentencing of indictable offences in NSW. The Crimes Act 1900 (NSW) also stipulates conditions for indictable crimes.

    It covers severe offences for; stealing in NSW, fraud offences in NSW, murder, robbery or burglary in NSW, rape and other grievous crimes. However, some of these offences can be handled either;

    • Summarily in a Magistrates Court, or
    • On indictment in a Supreme or District Court.

    There is no limitation period or time frame when an indictable offence can be charged. It means a person can still be charged for an indictable offence committed long ago as long as there is strong evidence of a crime.

    If indictable offences are dealt with summarily, the Court cannot impose more than a 2-year imprisonment term.

    A senior prosecutor must review a charge in a case conferencing and charge certification before proceeding to a higher court. Case conferencing helps the party to see if they can reach out-of-court agreements.

    The matter may be heard before a jury (12 persons) or a judge, depending on how much the prosecutor and defendant agree. Indictable offences in NSW attract penalties up to a life imprisonment term.

    Do Indictable Offences show up on a national police check?

    Where an individual is convicted in an Australian court for an indictable offence, the offence will show up as a disclosable court outcome (DCO) on their national criminal history check certificate.

    Due to the serious nature of indictable offences and the lengthy imprisonment terms that they attract in the legislations, an indictable offence generally stays on an individual's criminal record for life. The offence does not ever qualify to get expunged from a person's national police check after a certain period of time has elapsed as per Australian’s spent convictions legislation.

    Individuals can obtain their national police checks online via the Australian National Character Check (ANCC®) website.

    Sources

    Crimes Act 1914 (Cth) - https://www.legislation.gov.au/Details/C2021C00127

    Commonwealth Director of Public Prosecutions (CDPP) - https://www.cdpp.gov.au

    Criminal Code Act Compilation Act 1930 (WA) - https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_218_homepage.html

    Restraining Orders Act 1997 (WA) - https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_822_homepage.html

    Firearms Act 1973 (WA) - https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_339_homepage.html

    Misuse of Drugs Acts 1981 (WA) - https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_609_homepage.html

    Office of the Director of Public Prosecutions for Western Australia (ODPP) - https://www.wa.gov.au/organisation/office-of-the-director-of-public-prosecutions-western-australia

    Criminal Code Act 1924 (TAS) - https://www.legislation.tas.gov.au/view/html/inforce/current/act-1924-069

    Criminal Procedure Act 1921 (SA) - https://www.legislation.sa.gov.au/LZ/C/A/Criminal%20Procedure%20Act%201921.aspx

    Office of the Director of Public Prosecutions in South Australia (DPP in SA) - https://www.dpp.sa.gov.au/about-us/what-we-do/

    Crimes Act 1900 (ACT) - https://www.legislation.act.gov.au/a/1900-40

    Sentencing Act 1991 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/sentencing-act-1991/217

    Criminal Code Act 1899 (Qld) - https://www.legislation.qld.gov.au/view/html/inforce/current/act-1899-009

    Criminal Code Act 1983 (NT) - https://legislation.nt.gov.au/en/Legislation/CRIMINAL-CODE-ACT-1983

    Criminal Procedure Act 1986 (NSW) - https://legislation.nsw.gov.au/view/html/inforce/current/act-1986-209

    Crimes Act 1900 (NSW) - https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040

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