What Are Indictable Offences?
An indictable offence, which can include a common-law crime, can be prosecuted on indictment. The document that outlines the charges that the accused will face is called an indictment. It is a formal document that indicates that the person will be required to attend Court to answer the charges and initiates the criminal proceedings.
Several acts are considered indictable offences, including assault
, stealing, murder, burglary, robbery and armed robbery, rape and sexual crimes, treason, and fraud. This list provides quite a broad range of offences. Depending on the act, some can be dealt with summarily, like stealing and theft, contingent on the offence’s severity. The more serious offences can only be handled as indictable offences, for example, murder and rape. There are some indictable offences, like murder, that are always heard in the Supreme Court.
A summary procedure, heard by the Local Court in NSW
or Magistrates’ Court in other Australian states, is an indictable offence that police will generally prosecute. It is referred to as a summary procedure as it is heard ‘summarily’, which means immediately. The process followed is:
a. On the first court date, the defendant has the opportunity to plead guilty or not guilty. A defendant on bail must attend the Court hearing.
b. At this stage, the Magistrate can choose to adjourn the matter. Adjourning would allow the defendant time to get legal support and representation.
c. If the defendant pleads guilty; the Magistrate can issue a penalty at that time.
d. If they plead not guilty the case will advance to a contest mention hearing. They will then discuss a resolution to any remaining matters concerning the trial before the Magistrate. For example, if witnesses are to be called and any other issues concerning the court proceedings. Other problems may include if an interpreter is required and the length of time needed for the trial.
If charged with an indictable offence and the matter is not considered extremely serious, the prosecution and defence agree they will hear the case summarily. The maximum penalty for a summary case, concerning a single offence, is two years imprisonment. In a case heard in this way, where the defendant pleads guilty, the Magistrate can decide the matter, and no judge or jury is required. A Magistrate making the decision leads to a rapid resolution and less formal proceedings.
If the Magistrate feels the legal arguments are complex, they may decide it is advantageous to have the matter dealt with on indictment where it will be tried in front of a jury.
If an indictable offence is too serious to be dealt with
in a magistrates court or if the defence or prosecution disagrees on the matter being heard summarily, it will need to proceed to a higher court.
A process is followed to transfer an indictable offence to a higher court.
a. The matter goes through a charge certification involving a senior prosecutor reviewing evidence and sanctioning which charges will proceed.
b. There is case conferencing involving the defence and prosecution during which they will establish if the matter can be resolved by agreement.
If they cannot reach an agreement:
a. The matter is committed to a higher court where they will finalise the issue.
b. The accused enters a plea to each charge.
c. The matter then proceeds to sentencing or trial.
d. If it proceeds to trial, evidence can be heard before a jury of twelve or before a magistrate in the Magistrates court.
Penalty For Indictable Offences.
The penalties range from up to two years for a minor offence heard summarily to life imprisonment. The penalties for indictable offences heard in a higher court are significantly longer than those for cases heard in the Magistrates or Local Court.
In Australia, each state jurisdiction has its primary legislation that provides an outline of the indictable offences. These include the Crimes Act 1900 (NSW), Criminal Code Act 1899 (Qld); the Criminal Code Act Compilation Act 1913 (WA)
, the Crimes Act 1958 (Vic)
>, the Criminal Law Consolidation Act 1935 (SA)
, the Criminal Code Act 1924 (Tas), the Criminal Code Act (NT)
and the Crimes Act 1900 (ACT)
. If the indictable offence is an offence against the Commonwealth, then the Commonwealth Crimes Act 1914 is consulted.
The maximum time that can pass from an offence until the start of court proceedings is called the limitation period. For an indictable offence, there is no limitation period. In some cases, the evidence does not come to light for some time after a crime, yet charges can still be laid. There are cases where decades have passed between the alleged offence and the laying of charges. The process for prosecuting in public
is the same where the indictable offence was recent or occurred some years ago.
When you find yourself involved with the legal system, it can be quite confronting. The terminology is complex, and the court system is challenging. When charged with a criminal offence, the offence’s seriousness will impact how the matter will be dealt with. The Magistrate or local Court will hear the less serious crimes
as a summary offence while the more severe and complicated as indictable offences before a judge and possibly a jury. Seeking legal advice is imperative.