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Indictable Offences in Sydney

Indictable offences in Sydney and elsewhere in New South Wales are serious criminal offences that carry significant penalties and are heard in the District Court or Supreme Court of New South Wales. Minor offences are not indictable offences and are known as summary offences. These are finalised in the Magistrates Court (or in the Children’s Court, where the accused is under 18). This article deals with indictable offences in Sydney and the rest of New South Wales.

NSW indictable offences are governed by the Crimes Act 1900. The procedures for sentencing people for indictable offences are set out in the Crimes (Sentencing Procedure) Act 1999.

What are indictable offences in Sydney?

Section 3 of the Criminal Procedure Act 1986 states that an indictable offence is an offence that may be prosecuted on indictment. Indictable offences in NSW include larceny, assault, fraud, murder and manslaughter and robbery. Some of these offences (for example, larceny) can either be dealt with summarily (in the Magistrates Court or Children’s Court) or on indictment (in the District or Supreme Court). Other offences, such as robbery and murder, are strictly indictable offences, which means they can only be dealt with on indictment.

Some indictable offences, such as murder can only be dealt with in the Supreme Court, while others are heard in the District Court.

Limitation period

No limitation period applies to laying charges for indictable offences. This means that where there is evidence that a serious offence was committed long ago, charges can be laid regardless of how much time has passed. It may be harder to prove that an offence was committed when a lot of time has passed, but the process for prosecuting the matter is no different.

Indictable offences dealt with summarily

When a person is charged with an indictable offence in Sydney or elsewhere in NSW, the parties often agree that the matter will be heard summarily. This means that the matter will be finalised by a magistrate and the maximum penalty that can be imposed for a single offence will be limited to two years imprisonment. It also means that if the defendant pleads not guilty, the matter will be decided by a magistrate rather than by a judge and jury.

The advantages of having an indictable matter heard in the summary jurisdiction are that a lower maximum penalty applies and the matter will generally be completed more quickly and less formally. However, there may sometimes be advantages to having a matter committed to a higher court for finalisation. This may be because complex legal arguments are needed or because the defence considers it preferable to have the matter decided by a jury.

When indictable offences are dealt with in the Magistrates Court they are usually prosecuted by the police. The defendant is arrested or summonsed to appear before a magistrate for a first mention. They can plead guilty on the spot or adjourn the matter to get legal advice and supporting material such as character references or medical reports.

If the offender pleads guilty, they will proceed to be sentenced by a magistrate. If they contest the matter, it will be adjourned for a contest mention, where the parties will advise the court as to which witnesses will be required, how long the hearing is likely to run for and whether there are practical issues, such as a need for a witness to appear by video link. The matter will proceed to a contested hearing for determination if it cannot be resolved.

Offences dealt with on indictment

If the alleged circumstances of an indictable offence are very serious, or either party does not agree to the matter being heard in the summary jurisdiction, it will be committed to a higher court.

Before an indictable offence in Sydney or the rest of NSW can be transferred to a higher court, it must go through charge certification and case conferencing. This involves a senior prosecutor reviewing the evidence and confirm which charges will proceed. The defence and prosecution will then be required to attend a case conference to establish whether the matter can be resolved by agreement. If it cannot, the accused will enter a plea to each charge and the matter will be committed to a higher court.

Once an indictable offence has been committed to the Supreme or District Court, it proceeds either to a sentencing hearing or to trial. The maximum penalties that can be imposed for an offence being dealt with on indictment are set out in the Crimes Act and are much longer than the penalties that can be imposed by magistrates. Some indictable offences for example, murder and terrorism, carry a maximum penalty of imprisonment for life.

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Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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