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Indictable Offences (NSW)

Indictable offences are serious criminal offences that carry significant penalties and are heard in the higher courts. Offences that are not indictable offences are called summary offences and these are finalised in the Magistrates Court. This article deals with indictable offences in New South Wales.

Indictable offences in NSW are governed by the Crimes Act 1900. The procedures for dealing with indictable offences are contained in the Crimes (Sentencing Procedure) Act 1999.

What are indictable offences?

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

Some indictable offences, such as murder and treason, are always heard in the Supreme Court, while others are heard in the District Court.

Limitation period

No limitation period applies to the laying of charges for indictable offences. This means that where evidence is found that a serious offence was committed many years ago, charges can be laid regardless of how much time has elapsed. While it may be harder to prove the commission of an indictable offence when a lot of time has passed, the process is no different for prosecuting a historical offence.

Indictable offences dealt with summarily

When a person is charged with an indictable offence, the prosecution and defence often agree that the matter be heard summarily. This means that the maximum penalty that can be imposed for a single offence is two years imprisonment. It also means that if the accused pleads not guilty, the matter will be decided by a Magistrates rather being committed for trial before a judge and jury).

The advantages of having a matter heard in the summary jurisdiction are that there is a lower maximum penalty and the matter will generally be finalised more quickly and less formally. However, in some cases, there may be advantages to having a matter committed to a higher court and dealt with on indictment. This may be because there will be complex legal arguments or because the defence considers it preferable to have the matter tried in front of a jury.

When indictable offences are heard in the Magistrates Court they are generally prosecuted by the police. The accused is arrested or summonsed to appear in the Magistrates Court for a first mention. The accused can choose to finalise the matter by pleading guilty on the spot or adjourn it to get legal advice and supporting material.

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

If the offender pleads not guilty, the matter will be adjourned for a contest mention, where the parties will advise which witnesses will be required, how many days the hearing is likely to take and whether there are practical issues, such as a need for interpreters or for a witness to appear by video link. If the matter cannot be resolved, it will proceed to a contested hearing for determination.

Offences dealt with on indictment

If the circumstances of an indictable offence are very serious, or either the party does not agree to the matter being heard summarily, it will proceed to a higher court to be finalised.

Before an indictable offence can be transferred to a higher court, the matter must go through charge certification and case conferencing. This means that a senior prosecutor will review the evidence and confirm which charges will proceed. Defence and prosecution will then be required to hold a case conference to establish whether the matter can be resolved by agreement. If the matter cannot be resolved, the accused will enter a plea to each of the charges and the matter will be committed to a higher court for finalisation.

Once an indictable offence has been committed to a higher court, the matter proceeds either to a sentencing hearing or to trial before a judge and jury. The maximum penalties that can be imposed for an offence by the higher courts are set out in the Crimes Act and are longer than the penalties that can be imposed by Magistrates. Some indictable offences such as murder carry a maximum penalty of life imprisonment.

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

Fernanda Dahlstrom

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.

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