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  • Indictable Offences in New South Wales (NSW)

    Throughout Australia, Indictable offences are handled in a more severe and special form. A person charged with an indictable offence will proceed to higher courts like the District or the Supreme Court to have the matter settled.

    The indictable offences in New South Wales are rigid in scope and the laws that govern them. It means some chosen indictable offences as outlined in the legislation can never be heard by a court other than the Supreme Court. The legislation that guides how NSW handles indictable offences includes;

    These laws describe actions, violations and other circumstances that make up indictable offences.

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

    What is an indictable Offence?

    Chapter 3 of the Criminal Procedure Act 1986 (NSW) prescribes the process and definitions of indictable offences in New South Wales. It includes the jurisdictions of court, officials and other parties in handling an indictable offence.

    Indictable offences are crimes that are dealt with by indictment in NSW. Under section 46, the Criminal Procedure Act 1986 stipulates the Supreme and District Court has authority for all indictable offences. However, a District court may not have complete authority over certain indictable offences mentioned in the Act. Indictable offences are usually dealt with on behalf of;

    • The Crown,
    • Attorney, or
    • The Director of Public Prosecutions in NSW

    Before an indictable trial commences in the Supreme or District Court, there are certain procedures involved. The charge must first proceed through a Committal hearing at the Magistrate or Local Court.

    Some of the procedures for committal hearings before taking a charge up at higher courts include;

    • Case conferencing,
    • Court attendance hearing,
    • Charge certification,
    • Preliminary hearings.

    Examples of Indictable offences in NSW

    The Crimes Act 1900 (NSW) describes all offences that qualify as indictable offences. Some of these offences include;

    Offences against a person, the crown, or against the State.

    Some of the strictly indictable offences that can be only heard in courts higher than the Magistrate are;

    • Murder

    Murder offences include where the accused intentionally or recklessly caused the death of a person. Such offences are only finalized in the Supreme court. The legislation prescribes penalties from 25 years to life imprisonment for such offences.


    • Manslaughter

    Manslaughter charges are also finalised in Higher Courts. However, the judge can issue a nominal punishment in place of a verdict from the Jury.

    The offence of manslaughter carries a punishment of imprisonment term from 25 years to life imprisonment.

    Other assault offences or acts of violence causing death will incur penalties of at least 20 years imprisonment.


    • Offences of Sexual Assault

    All offences of sexual assault where the act was forced and circumstances of aggravation are present are indictable offences. The Supreme Court finalises all matters relating to rape in NSW.

    Under section 61J of the Crimes Act in NSW, sexual offences attract a minimum imprisonment term of 14 years. And in aggravated circumstances, it rises to 20 years imprisonment.


    • Offences against the sovereign

    All offences against the sovereign detailed in Section 12 of the Crimes Act (NSW) are handled as indictable offences. These offences attract minimum penalties of 25 years imprisonment.

    Some other offences are handled as strictly indictable offences especially in circumstances of aggravation;

    Committal proceedings

    A Committal proceeding starts by filing a court attendance or notice following all the prescriptions made in the section 47(1) of the Criminal Procedure Act 1986. Court attendance can be issued to the person suspected or who committed the crime.

    However, a committal proceeding can also be commenced immediately, without any of these actions if the law allows it.

    The Police or Public officer can commence a committal proceeding under section 14 of the Act. However, if a person other than a public officer opens a committal proceeding, they must issue a court attendance notice signed by the registrar.

    While a Police/Public officer doesn’t need a registrar’s approval, the private accuser may need one. And the registrar can refuse to sign the court attendance notice if they conclude that;

    • The notice does not have sufficient ground for proceedings,
    • It is of a different form from the prescriptions on the Act,
    • There is a ground of refusal set out in the rules.

    And if a registrar refuses to sign the court attendance notice, such matter will be determined by a Magistrate.

    The Court attendance notice

    The court attendance notice must follow all the rules set out by the Act. It must have the following information;

    • Describe the offence,
    • State all the necessary factors for the offence,
    • Contain the name of the prosecutor,
    • Specify the date, place and time where the accused must appear before the magistrate.

    Legislation for a committal proceeding

    Section 56 (1) of the Criminal Procedure Act 1986 specifies that a Magistrate must conduct and monitor the Committal proceedings in NSW. And they should fix days and handle other requirements towards a committal proceeding in NSW.

    When the Magistrate hears a committal proceeding, it must be before an open court. The only exception to this is if the mater;

    • Is introduced after the first appearance of the accused;
    • Is not procedural;
    • Does not require resolution of a disputed issue;
    • Does not involve a person giving oral evidence.

    Presence of the Accused person at the committal hearing

    The accused person must be physically present at a committal hearing. And the Criminal Procedure Act makes provisions for this such that the person issuing the notice should apply for an arrest warrant at the Magistrate against the accused person.

    In the same way, other authorized persons may also issue a warrant to the accused person if they feel there are substantial reasons to do so.

    Procedures in a Committal Proceeding

    The Division 2 and Section 55 of the Criminal Procedure Act provides guide for how a committal proceeding must turn out in a Magistrate or Local Court

    After the court attendance notice is filed, the prosecutor serves the evidence and charges against the accused person. It also includes filing and reading out the charge offences served by the prosecutor.

    The Magistrate/Local court may also organise case conferences between the legal rep of the accused and the prosecutors. And a case conference will be filed before the Local Court.

    While reading court the charges, the accused person can either plead;

    • Guilty to the charge – then the magistrate conducts them for trial,
    • Not guilty to the charge – then the magistrate commits them for sentencing at the District or Supreme Court.

    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.

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

    Or

    Before the day of trial and sentencing.


    Disclosing or releasing evidences

    The prosecutor must disclose or release the evidence relating to the matter. They can release the information;

    • After the commencement of the committal proceedings,
    • Before any of the days specified by the order for such purposes.

    What matters are disclosed in the brief evidence?

    The prosecutor while releasing the evidences must include;

    • Copies of all the material that is relevant to the case,
    • Copies of other materials the prosecutor is privy to, that can be relevant to the matter,
    • Copies of other materials that would affect the strength of the prosecution.

    The only exceptions in this case are if;

    • It will be impractical or impossible to copy the thing,
    • The accused agrees to inspect the material following all stipulations in the Act.

    Where this happens, the prosecutor must provide a reasonable time and place for the accused to inspect the material. It also includes providing a reasonable opportunity to inspect them per the standards.

    Who has the right to exercise a charge certificate?

    Section 65 maintains that a prosecutor for an indictable offence or who may exercise a charge certificate are;

    • The Director of Public prosecutions (DPP)
    • The Attorney general

    For other cases especially, special cases mentioned in section 79 of the Judiciary Act 1903 (Cth); it can be;

    • Any person holding a similar office under the Commonwealth,
    • Special prosecutors appointed under the commonwealth,
    • A person authorized under the Act of commonwealth
    • Other legal representatives appointed by the Act of, or under the Commonwealth.

    What is a Charge Certificate?

    The Charge document is a form that the prosecutor must sign to confirm that they are accusing a person of an indictable offence. Per regulations of the law, it must;

    • Detail all the offences in the court attendance notice,
    • Specify which of the offences are subject to the proceedings against the accused person,
    • Explain all the charges in a way that is acceptable with the requirements of the Act,
    • If necessary, confirm the proceedings against the accused person for other specified offences.

    What happens if the prosecutor fails to file a charge certificate?

    A Charge certificate is important to the trial and the committal hearing. If the prosecutor fails to file a court attendance notice within;

    • 6 months after the first return date, or
    • Any other date set by the Magistrate;

    The Magistrate must;

    • Discharge the accused person to any offence they were subject under the committal proceeding,
    • Adjourn the committal proceedings to a specified time and place if they think it is necessary

    What is a case conference?

    The Magistrate may convene a case conference where both parties and their legal representatives can agree on some settlements/charges. All case conferences held, must be subject to the legislation in the Crimes (Sentencing Procedure) Act 1986.

    Also, the Magistrate may call a case conference to reach the following agreements;

    • Allow the provision of extra materials or information that may affect the answer charge of the accused;
    • To amend or resolve other issues relating to the proceedings.

    Case conferences are held after the filing of the charge by the prosecutor. And they may be numerous depending on the peculiarities of the case.

    Contest mention

    The Magistrate will adjourn to a contest to mention if the accused pleads “not guilty” to the first appearance (charge reading).

    At the contest mention, the Magistrate confirms;

    • The witness(es) required;
    • How long/period the hearing will take;
    • If there would be technical issues; need for interpreters, witness to appear through digital aids.

    After the court makes its reservations and conclusions on this matter, the case will proceed to a contested hearing.

    Cases for Jointly accused people

    A jointly accused person will have a separate case conference from other parties. However, the prosecution may agree for two or more persons to have a joint case conference.

    The Case conference certificate must contain;

    • The offences that the accused person will be charged for the case conference;
    • Any offers by the accused person to plead guilty to the offence shown in the charge certificate;
    • The offences for which the prosecution seeks committal or trial for sentence.

    Limitation periods for indictable offences in NSW

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

    Although proving an indictable offence after a long period can be hard, the procedures are in no way different. The same laws that apply to an indictable trial of recent offence is the same for an historic offence.

    Indictable offences that are dealt with summarily

    Some indictable offences can be heard summarily in a NSW Magistrate court if the prosecutor and defendants agree.

    Generally, offences heard in a Magistrate Court don’t usually attract penalties greater than 2 years imprisonment. And this applies to all indictable offences that are treated summarily in the Magistrate court.

    Usually both parties agree to deal with such matters before a Magistrate court because;

    • It is less expensive hearing a matter before a Magistrate,
    • The process is quicker, and the procedures less formal or rigid,

    However, most matters will be preferable on indictment due to the complex nature of the case. And where the defendant prefers a Jury to handle the matter.

    What penalties can the Magistrate impose?

    If the accused person;

    • Pleads guilty to the offence, or,
    • The Magistrate finds them guilty of the offence;

    The Magistrate cannot impose penalties greater than a 2 years imprisonment term even where it handles an indictable matter. It means even if the Magistrate finds the person guilty, the penalties for the offence when handled under indictment doesn’t apply.

    Do indictable offences committed in the state of New South Wales show up on a criminal history check certificate?

    Indictable offences are the most serious types of criminal offences in the legislation. The offence will be disclosed on a national police check.

    Due to the seriousness of indictable offences and the long associated prison terms, an indictable offence will not be eligible to get expunged from an individual’s criminal record as per NSW’s spent convictions scheme legislation.

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

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