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  • Indictable Offences in Queensland (QLD)

    In Queensland, an accused person can be guilty of any of the two categories of offences listed in the Criminal Code Act 1899 (Qld).

    Section 3 of the Criminal Code Act gives these offences as either regulatory offences or criminal offences.

    • Regulatory offences.
    • Criminal Offences (Crimes or Misdemeanours and Simple offences).

    Of these offences, crimes and misdemeanours are the most serious kinds, and are treated as indictable offences in Queensland.

    Throughout Australia, indictable offences are usually handled in the higher courts. They incur severe penalties up to life imprisonment. This practice for indictable offences is no different in Queensland, only that the legislation may offer slight variations to the penalties and proceedings.

    Indictable offences are a serious criminal offence and will show up on an individual's national police check in QLD.

    What are indictable offences?

    Trials for these offences generally must be heard in a higher court before a Judge or a Jury. These matters are generally considered too complex or serious to be handled before a Magistrate. Section 614 of the Criminal Code Act in QLD allows a person to elect to have their matter heard before a Judge.

    However, before such matters are taken to the District/Supreme Court, they must pass through a committal hearing.

    Indictable offences also carry more severe penalties when compared to other offences that are handled summarily.

    What courts handle Indictable offences?

    Indictable offences are generally handled in a District or Supreme Court per the Criminal Code. However, there are some indictable offences that must be heard in a Magistrate Court under section 552A of the Criminal Code Act.

    When indictable offences are handled as summary offences, the maximum penalties cannot be more than those the Magistrate imposes. This is one advantage of having a Magistrate hear your indictable offences.

    Some examples of indictable offences in Queensland include;

    Other indictable offences like Rape, Murder, armed Robbery and treason are strictly indictable. For these offences, the Magistrate can only determine if there is enough evidence to prosecute the matter before a Judge.

    Charge Proceedings

    When a charge is filed as stipulated in the legislation, the court may issue an arrest warrant for the accused person.

    The first time the accused person appears in the Magistrate Court is called the first mention.

    First mention

    Here, the Magistrate will proclaim and read out the charges against the accused person. If they are without a legal representative, they must explain the significance and meaning of each charge.

    After the Magistrate reads the charge, the accused person is required to enter their plea.

    If the accused pleads guilty to the offence (minor indictable offence), the magistrate will;

    • Decide a penalty for the defendant, or,
    • Set a date for a sentence hearing.

    Else,

    The Magistrate will proceed with the committal hearing to determine if the case lacks sufficient evidence to move to a Supreme or District Court.

    What happens at a Committal Hearing?

    All indictable matters must proceed through the Magistrate Court either for;

    • Committal hearing before it proceeds to the Supreme Court, or
    • For the Magistrate to handle it summarily (Hybrid offences).

    Committal Hearings

    At the Committal hearing, the Magistrate decides if there is sufficient evidence for the case to be transferred to a Jury/Judge. The Committal hearing helps the Higher Court to be more effective by “supervising” all indictable offences that it may handle.

    The Committal hearing is usually conducted by a Magistrate.

    How does a Committal hearing work?

    The Magistrate invites the prosecutor to submit their case or charge against the defendant. This charge document must contain all the necessary evidence, arguments and details of the charge. The prosecutor may also invite witnesses to provide more evidence and strengthen their arguments.

    The defence lawyer can also interrogate the witnesses the prosecutor has presented to the Magistrate. And they can adjust their answer charges or reply based on the evidence the prosecutor submits.

    The Magistrate can also invite for other submissions that are relevant to the case. And will then examine all the evidence, arguments and circumstances of the case.

    If the Magistrate feels there is no evidence to proceed with the case (in a higher court), they will dismiss the case. However, if there is enough evidence, the Magistrate will charge you for the offence or will proceed to push the offence to a court of higher jurisdiction.

    When the Magistrate Charges you for the offence

    The Magistrate will inform the accused or their legal counsel about a finding of guilt, and the next steps. They may ask how the accused chooses to answer to the charge;

    • ✔ If the accused pleads not guilty; the Magistrate will commit them for trial at a Supreme or District Court;
    • ✔ If they plead guilty, the Magistrate will commit them for sentencing.

    Remanding a Defendant for their trial

    While an accused person is awaiting their trial, they can be remanded in prison. This is often the case where the Magistrate feels such a person (the accused);

    • Is likely to abscond from their ongoing trial;
    • Cause harm to themselves to avoid trial;
    • Is dangerous to the society or the victim;
    • May endanger the witness;
    • Tamper with any other material/evidence from the trial.

    Other options are;

    The defendant may be released on bail. If a person is released on bail, it is a promise that they will return to court on the days of their trials. A bail term usually has lots of conditions or factors that the person must satisfy. In most cases, the person may have to bring a guarantor or any form of surety (cash or properties).

    The bail term may also include conditions where the defendant will participate in community programs. It may involve the Court placing the person under the supervision of a parole or Community Corrections Officer.

    Defendant’s appearance on private complaint

    A person charged upon private indictable matter and where a summons is issued is not required to appear in person to answer their summons except the justices are satisfied that the evidence warrants a trial.

    The defendant can be represented by their lawyer through the proceedings until the justice requires their presence.

    When Corporations are charged with indictable offences

    If a corporation is charged with an indictable offence, a representative may appear to attend the summons on their behalf.

    The representative can either;

    • Make a statement in response to the charges;
    • Enter a plea to the charge;
    • The representative will also assume all other stipulated roles the Act assumes for a defendant;
    • However, if the corporation does not send a representative to the hearing;
    • The Justice can still set the corporation for trial if the evidence is sufficient.

    The justice can still commit the corporation for trial or sentence even when they cannot be sentenced to prison.

    Registry Committals

    The Clerk or Registrar can also order a defendant to be committed for an indictable offence if;

    1. The offence cannot be heard summarily,
    2. Written statements are already filed in courts with copies submitted to defendants,
    3. The defendant is represented by a lawyer,
    4. The defendant is in custody for the offence. And if not in custody, satisfying all conditions of the bail,
    5. The lawyer has through any formal approach;
    • State that the defendant is not giving a counter evidence or witness,
    • Acknowledges the functions of the clerk for a registry committal,
    • States whether the defendant wishes to enter a trial.

    Appealing to the Supreme Court from a Magistrate’s decision

    Section 102D of the Justices Act 1886 (QLD) outlines where a defendant is not satisfied with the decision of the Magistrate.

    A person who is aggrieved with the decision of a Magistrate can appeal the decision in the Supreme Court. However, the appeal should be;

    • Within 28 days after the Magistrate pronouncement;
    • By way of hearing.

    Limitation period for indictable offences in Queensland

    There are no period limits 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 (unless the Defendant elects a Jury trial)

    Not all indictable offences are handled in a Supreme or District Court in Queensland. Some indictable offences must be dealt with in a Magistrate Court unless the defendant elects otherwise.

    Some examples of these offences including the attempts, intents, procuring to commit them are;


    Sexual offences

    Sexual offences without circumstances of aggravation where the defendant pleads guilty. It also includes cases where the accuser is at least 14 years of age, and the offence does not incur punishments of more than three years imprisonment.


    Assault occasioning bodily harm

    Section 339 of the Criminal Code in QLD describes this offence and prescribes punishments. However, where there is no aggravating circumstances;

    • Use of weapons/instrument,
    • Not committed in company,
    • During the term of a community service order.
    • Without a sexual charge indictment,

    And where the maximum penalty is between 3 and 7 years.


    Other indictable offences that will be handled summarily;

    • ✔ Being a Member of a criminal organisation that were intentionally present in public places
    • ✔ Being a member of a criminal organization and entering or attending certain places or events
    • ✔ Recruiting a person as part of criminal gang (section 76)
    • ✔ Unlawful drink spiking (section 316A)
    • ✔ Habitually consorting with known offenders (section 77B)
    • ✔ Offences for unlawful stalking (section 359E) where the maximum imprisonment term is not more than 5 years.

    Indictable offences which must be dealt summarily

    Section 552BA of the Criminal Code in QLD allows some necessary offences to be dealt with summarily. These relevant offences can be defined as indictable crimes that;

    Carry maximum sentences not more than 3 years;

    • ✔ Stipulated by the Magistrate Court to be handled summarily
    • ✔ Falls under the Part 6 of the code, excluding all offences under Chapter 42A
    • ✔ Are part of the excluded offences in section 552 BB;

    Stealing offences in QLD

    Certain stealing offences in QLD will be treated summarily if;

    • The damage or yield is more than $30,000, and
    • The offender does not plead guilty,
    • Where it was a firearm that was stolen and it was used for another indictable offence.

    Bringing stolen goods into Queensland

    This offence will be treated summarily if;

    • The worth of the goods is over $30,000, and,
    • The offender does not plead guilty.

    Offences that are strictly indictable in Queensland

    These offences are always handled by higher courts as the legislation considers them too complex or serious for the Magistrates Court.

    These offences include;


    Murder

    Murder offences include where the accused intentionally or recklessly caused the death of a person. Such offences are only finalised in the Supreme court. It includes all charge of killing on provocation, domestic homicide, diminished responsibility, attempts to murder, threats to murder, accessory to a murder case.

    The legislation prescribes penalties up to life imprisonment for such offences.


    Manslaughter

    Manslaughter charges are also finalised in Higher Courts. It is the act of killing through an act that did not intend murder.

    The offence of manslaughter carries the maximum punishment of life imprisonment.

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


    Aiding suicide

    It is also an indictable offence to be found guilty of aiding or being an accessory to a suicide case. Such crimes are handled in a higher court and will incur penalties of up to life imprisonment.


    Killing an unborn child

    It is an offence to be guilty of an action that led to the death of an unborn child. It includes all actions that would have resulted in murder if the child were born alive.

    This offence also covers all forms of assaults where the offender harmed the unborn child through any form of assault.

    Such offences are indictable offences that attract penalties of up to life imprisonment.

    However, this offence does not include where the mother wilfully terminated the child or others who assisted them under the Termination of Pregnancy Act 2018 (QLD).


    Rape

    Section 349 of the Criminal Code in QLD describes Rape as a serious crime which attracts a life imprisonment penalty.

    It includes all circumstances where a person penetrates another person without their consent. Penetration for this context includes but not limited to the;

    • Mouth,
    • Vulva,
    • Vagina.

    In most cases, offences of Rape will be finalised in the Supreme Court.


    Attempt to commit Rape

    All conspiracy, attempts and intent to commit rape is treated as an indictable offence under the s350 with a 14 years imprisonment term.


    Assault with intent to commit rape

    Injuring or attacking a person with the intent to commit rape is an indictable offence in Queensland. It attracts a 14 years imprisonment term, which may increase in circumstances of aggravation.


    Other cases of Sexual Assaults

    The Queensland legislation treats all cases of sexual assault as indictable charges. And it is more severe in circumstances of aggravation.

    The Crown Law officer or other designated officer must present the indictment charge in the court for all of these offences. It is mandatory, especially in circumstances of aggravation.

    Do indictable offences committed in QLD show up on a national criminal history check certificate?

    Indictable offences are serious criminal offences. The offence will be disclosed on police background checks in QLD.

    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 QLD’s spent convictions scheme.

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

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