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  • Home Resources & Technical Articles Criminal Offence Topics (A to Z) Indictable Offences Indictable Offences in the Australian Capital Territory (ACT)

    Indictable Offences in the Australian Capital Territory (ACT)

    There are two categories under which an accused person will be prosecuted for a crime in the ACT. The legislation can either handle your offence summarily or as an indictable offence. However, a significant difference between both offences is that;

    Summary offences in Australia are usually held in a Magistrate Court. Generally, the maximum punishment for a summary offence cannot be more than two years imprisonment.

    Indictable offences in Australia are mostly handled before a Judge or Jury in a Supreme Court. And the matters heard usually have punishments exceeding 12 months imprisonment.

    Indictable offences are a serious criminal offence and will show up as a disclosable court outcome (DCO) on an individual's national police check in the ACT.

    How are offences handled in the Australian Capital Territory?

    Only the Supreme Court in the ACT will have jurisdiction for certain indictable offences in the ACT. Unlike many other States and Territories in Australia, the ACT does not have a middle court (higher than a Magistrate Court).

    Therefore, all matters which the Magistrate Court cannot handle is transferred to the Supreme Court.

    However, before a matter is transferred to the Supreme Court, the Magistrate must decide if the evidence or the circumstances is sufficient. Generally, the process of a Magistrate Court conducting preliminary assessment for a potential “Supreme Court” trial is called a committal hearing.

    Why are certain offences considered indictable in the ACT?

    Some offences are considered too severe/complex and require lengthy and special hearings to reach a final decision. And usually, a Jury, not a judge, may hear the case, depending on if the prosecutor and defendant agree.

    Section 190 of the Legislation Act 2001 (ACT) lists an offence as indictable if;

    • It is punishable by more than two years imprisonment,
    • Declared by an ACT law to be an indictable offence,
    • It also includes all indictable offences heard summarily.

    Strictly Indictable Offences in the ACT

    Indictable Offences with more severe punishments (high imprisonment term) can only be handled before a higher court. These offences are considered too grievous, and a Magistrate sentencing will be inadequate for such a case. Some examples include;

    • Murder offences,
    • Sexually related offences,
    • Terrorism,
    • Treason,
    • Serious Fraud/Robbery offences, and so on.

    Penalties and Sentencing for an indictable offence in the ACT

    If the Judge finds you guilty of an indictable crime, it will refer to the punishments prescribed in the law. The Crimes Act 1900 (ACT) outlines all criminal (indictable) offences in the ACT and their penalties.

    The Sentencing of the Judge will also take the form laid out in the Crimes (Sentencing) Act 2005 (ACT).

    Serious indictable offences like Murder and Treason can attract life imprisonment terms.

    Section 12 of the Crimes Act in the ACT prescribes punishment of life imprisonment for murder offences.

    Section 280A also stipulates the punishment and guidelines for handling Treason trials.

    Manslaughter and killing without intent are indictable offences that carry up to a 20 years imprisonment term and 28 years in aggravated circumstances.

    Sexual and Rape offences incur penalties over ten years imprisonment depending on the severity of the crime.

    Procedures for treating an indictable offence summarily

    The Magistrate will issue a first date where all parties (prosecutor/accuser and defendant) must present their cases. This date is also known as the “Mentions Date”, and 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 certain 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 can give Sentencing the same day if the defendant pleads guilty to the charge. However, the Magistrate will conclude the hearing and proceed to a Contest 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.

    Can all Indictable offences be heard summarily?

    Not all indictable offences can be heard in a Magistrate court as a summary offence. Sections 92A and 118 of the Magistrate Court Act 1930 (ACT) allows certain indictable offences to be heard summarily when some conditions are satisfied. Some of these include;

    • The Character and circumstance of the case allows it;
    • The Criminal History of the accused enables the offences to be settled summarily;
    • The Court gives any other condition.

    Remanding the accused during a Committal/Court proceeding

    The accused person must be physically present at a committal hearing. And the Act makes provisions for this such that;

    The person issuing the notice can apply for an arrest warrant at the Magistrate against the accused person.

    In the same way, other authorised persons/Court may also remand the accused person if there is;

    • Substantial reasons to do so, or
    • Fear they will abscond from the case.

    Explaining the Committal process to the accused

    The Magistrate must under the Act explain to the accused either orally or written;

    • The committal process and the charge constituting the sentence,
    • How the accused person can respond to the charges under the scheme.

    The explanation can be after the accuser files the charge certificate and before the day of the case conference.

    Or

    Before the day of trial and Sentencing.

    Limitation periods for indictable offences in ACT

    There are no period limits to when a person can lay a charge for an indictable offence. It means that an indictable trial can even commence decades after the crime happened, especially in cases with serious evidence.

    Although proving an indictable offence after a long period can be challenging, the procedures remain the same. The same laws apply to an indictable trial of a recent offence for a historical crime.

    The Court of Appeal in the Australian Capital Territory

    The ACT has a unique arm of the Supreme Court that hears all appeals on any matters previously settled in Court. The Court of Appeal in the ACT was created in 2002. And before that, the Federal Court of Australia handled all appeal cases in the ACT.

    In the ACT, the Appeal Court has a panel of 3 judges that listen and decide on all appeal charges before the Court.

    Anyone filing an appeal must complete it within 28 days after the initial sentence or conviction was given. The applicant may also include all convictions, Sentencing, the previous Court issued.

    The documents you need to complete an appeal charge are in the Appeal Book. And some of them include;

    • Transcripts from original proceedings,
    • Evidence of the Offences,
    • Other documents included in the Appeal Book.

    Do indictable offences that are committed in the ACT show up on a nationally coordinated criminal history check?

    Indictable offences are the most serious types of criminal offences in the legislation. The offence will be disclosed on a police check regardless of how much time has lapsed since the offence occurred.

    Due to the seriousness of indictable offences and their long associated imprisonment sentences, an indictable offence will not be eligible to get expunged from an individual’s criminal record as per the ACT’s spent convictions scheme.

    Individuals can obtain their national criminal history check online via the Australian National Character Check - ANCC® website.

    Sources

    Legislation Act 2001 (ACT) - https://www.legislation.act.gov.au/a/2001-14/

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

    Crimes (Sentencing) Act 2005 (ACT) - https://www.legislation.act.gov.au/a/2005-58

    Magistrate Court Act 1930 (ACT) - https://www.legislation.act.gov.au/a/1930-21

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