Indictable Offences in Western Australia
In Western Australia, criminal offences are categorised as summary offences, indictable offences or either way offences. Summary offences are dealt with in the lower courts (Magistrates Court and Children’s Court). Indictable offences are dealt with in the higher courts (District Court and Supreme Court). Either way offences can be dealt with either in the lower courts or in a higher court. This page deals with indictable offences in WA.
Summary offences are minor offences and are dealt with in the Magistrates Court.
Under Section 3(2) of the Criminal Code, indictable offences are triable on indictment only. The accused has the right for their indictable matter to be heard by a judge and jury, and this cannot happen in the lower courts.
There is no limitation period for starting a prosecution for an indictable offence. A person can be charged with an indictable offence many years or even decades after it occurs.
Which offences are indictable offences?
Indictable offences include serious assaults, robbery, assault with intent to commit robbery, criminal damage, sexual assaults, serious fraud, burglary, commercial theft, and drug offences.
Either way offences
Some offences in Western Australia are known as either way offences. These are offences that can be dealt with in the Magistrates Court or in the District Court. Assault occasioning bodily harm (under section 317 of The Criminal Code) is one example of an either way offence.
The allegations surrounding a charge of an either way offence will determine whether it will be dealt with summarily or on indictment.
Court procedure for indictable offences
The procedures for dealing with indictable offences are set out in the Criminal Procedure Act 2004 .
All criminal matters start in the Magistrates Court. A Disclosure/Committal Mention Hearing must be held before the matter can be transferred to a higher court. At this hearing, the court must be satisfied that the prosecution has provided full disclosure. It will then take the accused’s plea.
If an accused pleads guilty, then the matter is committed to a higher court for a Sentence Mention Hearing under section 41(3) of the Criminal Procedure Act 2004. If at the Sentence Mention Hearing, the parties are ready for sentencing, the court will set a date for a Sentencing Hearing.
If the accused pleads not guilty, then the matter is transferred to the District Court or Supreme Court for a Directions Hearing under section 41(4) of the Criminal Procedure Act 2004. Offences that can attract a penalty of life imprisonment are finalised in the Supreme Court. All other indictable offences are finalised in the District Court.
Judge alone or judge and jury?
All indictable offences are tried by jury in WA, unless an order is made for trial by a judge alone under section 118 of the Criminal Procedure Act 2004.
The court can make a section 118 order for a trial by a judge alone if:
- the accused applies for the order, and the court considers it is in the interest of justice to make the order; or
- the prosecution applies for the order and the accused consents to the application, and the court considers it is in the interest of justice to make the order.
Where a trial is likely to be unreasonably burdensome for a jury due to its length or complexity, the court can order a trial by judge alone.
Where the accused is being tried for the offence of ‘corrupting or threatening a juror’ pursuant to section 123 of The Criminal Code, the court can make an order for a judge alone trial.
If the court considers that a jury is needed to help with factual issues or standards (such as community standards), then it can dismiss an application for a judge alone trial.
When a trial is heard by jury, the judge decides questions of law, and the jury decides questions of fact. The jury determines the facts after hearing and evaluating the evidence. Once the jury determines the facts, it can decide whether the accused is guilty or not guilty and deliver a verdict to the court.
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