This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Simple Offences, Crimes and Either Way Offences (WA)


In Western Australia, how a criminal offence is described in the legislation affects whether it is finalised on indictment in the District Court or Supreme Court or as a summary offence in the Magistrates Court. Under West Australian legislation, there are two types of offences: simple offences and crimes. The Criminal Code also contains either way offences, which can be dealt with either as simple offences or as a crime.

What is a simple offence?

A simple offence in Western Australia is a criminal act that is referred to in the Criminal Code 1913 as an ‘offence’ as opposed to a ‘crime.’ The Magistrates Court in Western Australia is the court of summary jurisdiction and deals with all types of ‘simple offences.’ Simple offences are minor offences that cannot be dealt with in the higher courts. For example, under section 313 of the Criminal Code, common assault is a simple offence. A person found guilty is liable to imprisonment for up to 18 months and to a fine of up to $18,000 or if it is an aggravated offence, to three years imprisonment and a fine of up to $36,000.

Other examples of simple offences are possession or use of a prohibited drug, driving under the influence of alcohol and driving without a valid license. 

What is a crime?

Any criminal act referred to as a ‘crime’ in the Criminal Procedure Act 2004 is an indictable offence. In Western Australia, indictable offences are dealt with by the District or Supreme Court. The matter will be mentioned in the Magistrates Court and then after committal proceedings, be transferred to a higher court.

Examples of indictable offences include sexual penetration without consent, deprivation of liberty and concealing a will under section.

Limitation period

A person must be prosecuted with a simple offence within 12 months of the date of the alleged offence (unless otherwise prescribed). 

A person can be prosecution with an indictable offence regardless of how much time has elapsed since the offence allegedly occurred.

What is an ‘either way’ offence?

An ‘either way’ offence is an offence described in legislation as a crime and for which the legislation sets out two different maximum penalties – one that applies where the matter is dealt with in the summary jurisdiction and another that applies where it is dealt with on indictment. 

For example, a person who commits an assault causing bodily harm is guilty of a crime and is liable to a maximum of five years imprisonment when dealt with on indictment (or seven where the offence is aggravated). However, if the matter is dealt with summarily the person only faces a maximum of two years imprisonment and a fine of up to $24,000 (or three years and $36,000 for an aggravated offence).

Other examples of either way offences include:

  • Fraud;
  • Possessing stolen or unlawful property;
  • Being armed in a way that causes fear;
  • Indecent assaultand
  • Obscene act in public.

‘Either way’ offences are dealt with summarily unless the prosecution or defence applies under section 5(2) of the Criminal Code for the charge to be finalised on indictment. An application that an ‘either way’ offence be dealt with on indictment may be made because:

  1. The seriousness of the offence means that a Magistrate would be unable to adequately punish the defendant;
  2. Division 2A of the Sentencing Act 1995 (WA) applies;
  3. One or more co-accuseds is to be tried on indictment;
  4. The charge forms part of a course of conduct of the accused; or
  5. It is in the interests of justice for the matter to be dealt with on indictment.

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

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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