Indictable Offences

Indictable offences are criminal offences where the accused has the right to have the matter heard in a higher court such as the District Court or Supreme Court (or the County Court in Victoria). Indictable offences are more serious than summary offences, which are heard in the Magistrates Court. However, indictable offences can also be heard in the Magistrates Court in the same way as summary offences if both parties consent to this.

Which offences are indictable offences?

Indictable offences range from theft and assault to very serious offences like rape, armed robbery, treason and murder. The Commonwealth Crimes Act 1914 governs indictable offences against the Commonwealth, which can be prosecuted in any state or territory of Australia.

The main legislation in each state which governs indictable offences in that jurisdiction is listed below:

if you have been charged with an indictable offence you should always seek legal advice before attending court.

Summary procedures for indictable offences

Those indictable offences which can be dealt with in the Magistrates Court (or the Local Court in NSW) are generally prosecuted by the police. This is known as summary criminal procedure, and the matter is heard “summarily”.

When a matter is heard summarily, the procedure is the same as for summary offences, such as traffic offences. The first date will be a mention at which the defendant can plead guilty or not guilty. If the accused is pleading guilty, the matter may be finalised on the day, or the Magistrate may also adjourn the matter, so the defendant can seek legal representation or obtain character references.

If the defendant pleads not guilty then the matter must proceed to a contest mention to resolve any remaining matters regarding the contested hearing. This includes establishing how many witnesses are to be called and whether there are any issues the court needs to be aware of – for example, whether a voir dire is to be held, whether interpreters are needed or whether any witness needs to appear by video link.

The matter is then set down for a contested hearing where the magistrate will decide whether the accused is guilty (in which case they will be sentenced) or if they are not guilty (in which case the charge will be dismissed).

Types of indictable offences heard summarily

The indictable offences that can be heard summarily differ from state to state. In some states, such as Victoria, the Magistrate as well as the accused must consent to the matter being heard summarily.

Examples of offences that can be heard summarily include theft, property damage and indecent assault. Usually, the penalty that can be imposed in the Magistrates Court is much lower than that which a higher court can impose. This means it is often in the interests of the defence to have a matter dealt with summarily. The matter is also generally finalised much quicker via the summary procedure.

Very serious offences such as rape and murder cannot be heard summarily and must be committed to a higher court for finalisation.

Committing matters to higher courts

Before a matter can be transferred to a higher court, the defence must get a copy of the brief of evidence from the prosecution. In New South Wales, charge certification must then occur. This means that the prosecution confirms which charges are being proceeded with and if any charges are being dropped. A case conference must be held where the parties can discuss and try to resolve some matters. The matter can then be committal to a higher court.

In all states except NSW, a committal hearing must be conducted to determine if there is enough evidence to justify the matter proceeding to a higher court. This can occur by way of an oral committal, where the prosecution witnesses attend to have their evidence tested through cross-examination or by hand-up committal, where the brief of evidence is simply handed up to the magistrate, who commits the matter to a higher court. The latter usually occurs when the defendant is planning to plead guilty. If there is not enough evidence to support a finding of guilt, the matter will be dismissed.

Jury trials

When a matter goes to a higher court and is being contested, a jury of twelve people will usually hear the facts and determine whether the defendant is guilty or not guilty beyond a reasonable doubt. Usually, all 12 jurors will need to agree on the verdict; however, in some cases, a majority verdict (normally 11 out of 12 jurors) may be accepted.

Some matters may be tried before a judge alone, except in the Northern Territory, Victoria and Tasmania where this does not occur. Defendants in South Australia and the ACT always have the right to elect between a trial by judge and jury or a trial by judge alone. Defendants often elect for a judge-alone trial where they feel they will not get a fair hearing because there has been a lot of negative media coverage. The prosecution will generally need to consent to a trial by judge-alone.

If you require legal advice or representation in any legal matter please contact Armstrong Legal.

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.