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Indictable Offences in New South Wales

Indictable offences are serious criminal offences that attract significant maximum penalties and are finalised in the Supreme Court or the District Court. Criminal offences that are not indictable are called summary offences and are finalised in the court of summary jurisdiction (the Magistrates Court). In New South Wales, indictable offences are governed by the Crimes Act 1900. The procedures for dealing with these matters 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 a criminal offence that can be prosecuted on indictment.

Indictable offences in New South Wales include:

  • assault;
  • fraud;
  • murder;
  • stealing;
  • robbery; and
  • burglary. 

Some of these offences, such as assault and stealing, can be dealt with either summarily (in the Magistrates Court or Children’s Court) or on indictment (in the District Court or Supreme Court). Other offences, such as murder, robbery, and serious sexual offences, may only be dealt with on indictment.

While some indictable offences, such as murder and treason, are heard in the Supreme Court, others are heard in the District Court.

Limitation period

There is no limitation period for laying a charges for an indictable offence. This means that whenever evidence emerges that a serious offence was committed in the past, charges can be laid, even where decades have passed since the event. While it may be harder for the prosecution to prove that an indictable offence occurred when a lot of time has passed, the process for prosecuting and trying a historical offence is the same.

Indictable offences that are dealt with summarily

When someone is charged with an indictable offence, it is common for the prosecution and defence to agree for the matter to be dealt with summarily. This means that the maximum penalty that applies for a single offence is two years imprisonment. It also means that if the accused person pleads not guilty, they will be tried by a magistrate (rather than a judge and jury).

There are a number of advantages to having a matter heard summarily. The maximum penalty is lower, and the charge will generally be finalised more quickly and with less formality. However, in some instances there are advantages to have a matter dealt with on indictment. This may be because complex legal arguments need to be made or where the accused prefers to be tried in front of a jury.

When indictable offences are heard in the Magistrates Court, the accused can choose to finalise the charge by pleading guilty on the spot, or adjourn the matter to get legal advice, obtain the brief of evidence and gather supporting material such as character references and reports.

If the accused pleads guilty, they will be sentenced by a magistrate. A magistrate can impose a range of sentencing orders but must not impose more than two years’ imprisonment for a single offence.

If the offender pleads not guilty, the court will set a date for a contest mention, where parties will confirm which witnesses are required, how long the hearing will take and whether there are any practical issues, like the need for an interpreter or for a witness to give evidence via video link. If the matter cannot be resolved as a plea, it will proceed to a contested hearing.

Offences dealt with on indictment

If the allegations surrounding an indictable offence charge are very serious, or either party does not agree to the matter being heard by a magistrate, it will be dealt with in a higher court.

Before an indictable offence is transferred to a higher court, it goes through charge certification and case conferencing. A senior prosecutor reviews the evidence and confirms which charges the prosecution is proceeding with. Parties will then be required to hold a case conference to attempt to resolve the matter. If the matter cannot be resolved, the accused will plead to each charge and the matter will be committed to a higher court for a plea hearing or a trial.

The maximum penalties that higher courts can impose for each offence are significantly longer than the penalties in the Magistrates Court. Some indictable offences carry a maximum penalty of imprisonment for life.

When an indictable offence goes to trial, evidence is generally heard by a jury of 12 people. A criminal trial can also take place in front of a judge alone, if the parties agree to this or if the defence requests a judge-alone trial and the judge considers this is in the interests of justice.

If you require legal advice or representation in a criminal mater or in any other 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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