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Indictable Offences (NSW)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Indictable offences are serious offences that carry significant penalties and are heard in the Supreme Court or the District Court.  Offences that are not indictable offences are known as summary offences and are dealt with in the Magistrates Court.

Indictable offences in New South Wales are governed by the Crimes Act 1900. The procedures for dealing with indictable offences are set out in the Crimes (Sentencing Procedure) Act 1999.

What are indictable offences?

Under Section 3 of the Criminal Procedure Act 1986, an indictable offence is an offence that may be prosecuted on indictment. Indictable offences include assault, stealing, fraud, murder, robbery and burglary. Some of these offences, such as stealing and theft, can be dealt with either summarily (in the Magistrates Court) or on indictment (in the Supreme Court or District Court). Other offences, such as robbery, murder and serious sexual offences, may only be dealt with on indictment.

While some indictable offences, like murder and treason, are always heard in the Supreme Court, others must be heard in the District Court.

Limitation period

There is no limitation period on the laying of charges for indictable offences. This means that where evidence emerges that a serious offence was committed a long time in the past, charges can still be laid. This is the case even where decades have passed since the alleged offence. While it may be harder to prove that an indictable offence was committed when a lot of time has passed, there is no difference in the process for prosecuting and trying a historical offence.

Indictable offences dealt with summarily

When someone is charged with an indictable offence, the prosecution and defence often agree for the matter to be heard summarily. This means that the maximum penalty that can be imposed in relation to a single offence is two years. It also means that if the accused pleads not guilty, the matter will be decided by a Magistrate (rather than a judge and jury).

The advantages of having a matter heard summarily are that the maximum penalty is lower, and the matter will generally be dealt with quicker and with less formality. However, in some instances it may be advantageous to have a matter dealt with on indictment. This may be because there are complex legal arguments to be heard or where the defence considers it preferable for the matter to be tried in front of a jury.

When indictable offences are heard summarily, they are generally prosecuted by the police. The offender is arrested or summonsed to appear in the Magistrates Court for a first mention. They can choose to finalise the matter on the spot, or adjourn it to get legal advice, obtain the brief of evidence or to obtain character references or reports.

If the offender pleads guilty, they will be sentenced by a Magistrate. A Magistrate can impose a range of penalties for a summary offence but must not impose more than two years’ imprisonment for any one offence.

If the offender pleads not guilty, the matter will be adjourned for a contest mention, where the court will confirm which witnesses will be required, how long the hearing is likely to take and whether there are any practical issues, such as the need for an interpreter or for a witness to appear by video link.  If the matter is unable to be resolved, it will proceed to a contested hearing.

Offences dealt with on indictment

If the circumstances of an indictable offence are very serious, or either the defence or the prosecution does not agree to the matter being heard summarily, it will be dealt with in a higher court.

Before a matter reaches a higher court, it must go through a committal hearing, which takes place in the Magistrates Court. At the committal hearing, a Magistrate reviews the evidence supporting the charge. If he or she considers there is enough evidence to support a finding of guilt, the matter is committed to a higher court. If the Magistrate considers the evidence could not support a finding of guilt, the matter will be dismissed.

Once an indictable offence has been committed to a higher court, the accused enters a plea and the matter proceeds either to sentencing or to trial. The maximum penalties that can be imposed by higher courts are set out in the Crimes Act and are significantly longer than the penalty that can be imposed by a Magistrate. Some indictable offences carry a maximum penalty of life imprisonment.

When an indictable offence proceeds to trial, evidence is generally heard in front of a jury of 12 people. A trial can also be held in front of a judge alone, if the defence and prosecution agree to this or if the defence seeks a judge-alone trial and the judge considers this would be in the interests of justice.

If you require legal advice or representation in a criminal mater or in any other legal matter, please contact Go To Court Lawyers.

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