What is an indictable offence?
Indictable offences carry heavier maximum penalties and the right to be heard before a judge and jury. Summary offences, on the other hand, are considered less serious and do not carry that same right. An indictable offence is any offence that is not a summary offence.
Indictable Offence Meaning
Section 112 of the Sentencing Act 1991 prescribes that in Victoria, indictable offences are all offences that carry a maximum penalty of more than 2 years (or level 7) imprisonment or a fine of more than 240 penalty units (or both) unless the contrary intention appears in the relevant act that contains the charge. So, that means any offence with a maximum penalty of 5 years or more.
Can all indictable charges be heard before a Jury?
Yes, if you are facing an indictable offence, you have the right to have your matter heard before a jury in the County or Supreme Courts.
There are two categories of indictable offences;
- Those that can be heard and tried summarily; and
- Those that can only be heard in the indictable stream, meaning they must proceed to the County or Supreme Court.
However, if a person is facing an indictable offence that can be tried summarily, there is the option of consenting to the matter proceeding in the Magistrates’ Court in what is known as the summary jurisdiction. This option may be preferrable because having the matter heard in the Magistrates’ Court is far less expensive, much quicker and more easily appealed, particularly when the matter is proceeding as a plea of guilty.
The disadvantage to contesting a matter in the Magistrates Court is that instead of being judged by 12 members of a jury, the matter will be decided by a single Magistrate sitting in the Magistrates’ Court. Whether you should consent or not to a matter being heard in the summary jurisdiction (triable summarily) should always be discussed with your lawyer.
There is a suggestion that indictable offences can be broken down between indictable charges and serious indictable charges per section s325 of the Crimes Act 1958. However, this section only nominates an offence that carries a maximum of 5 years imprisonment as a serious indictable offence. The reality is that most indictable offences have a maximum penalty of 5 years or more. A better distinction would be between indictable charges that can be heard in the Magistrates Court (summary jurisdiction) vs charges that can only be heard in the County or Supreme Court (indictable jurisdiction).
Procedures for an indictable offence
Just because a charge is an indictable offence does not always mean it has to go to the County Court or the Supreme Court for a jury trial or be finalised before a judge. Many indictable offences can proceed in either the summary or the indictable stream. Put simply, the indictable stream (or committal stream as it is commonly known) is just a more formal and systemised way of hearing what the parliament considers to be more serious charges.
The summary stream is a far quicker process. Whether an indictable offence can be heard in the summary stream should always be determined in consultation with a lawyer, but the legislation is analysed below to explain this further.
Indictable offences heard summarily
An indictable offence may be heard summarily in the Magistrates Court of Victoria if the offence carries a maximum penalty not exceeding 10 years or the offence appears in Schedule 2 of the Criminal Procedure Act 2009.
An indictable offence can only proceed in the summary jurisdiction with the consent of the person who has been charged with the indictable offence.
There are some charges that can only be heard in the County or Supreme Courts. More information can be found in relation to serious indictable charges here. During the course of proceedings and after a Filing Hearing, Committal Mention, or Committal Hearing, it is possible for further negotiations with the prosecution to occur, which can lead to serious indictable charges being withdrawn.
When this happens, and the result is that only some serious charges are withdrawn, a defence lawyer can make a summary jurisdiction application as to why the remaining charges should be heard in the summary jurisdiction. The Court will consider section 28 and 29 of the Criminal Procedure Act when making an order to have an indictable matter, transferred to the Magistrates Court, to be tried summarily.
When an indictable offence may be heard and determined summarily
- The Magistrates’ Court may hear and determine summarily a charge for an offence to which section 28(1) applies if—
- the Court considers that the charge is appropriate to be determined summarily, having regard to the matters in subsection (2); and
- the accused consents to a summary hearing.
- Notes
- Section 82 provides for a summary hearing without consent in the case of a corporate accused which fails to appear in answer to a summons.
- Section 168(3) provides that a charge transferred by order under that section must be heard and determined summarily
- Notes
- For the purposes of subsection (1)(a), the Magistrates’ Court must have regard
- the seriousness of the offence including;
- the nature of the offence; and
- the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances; and
- whether the offence forms part of a series of offences being alleged against the accused; and
- the complexity of the proceeding for determining the charge; and
- the adequacy of sentences available to the Court, having regard to the criminal record of the accused; and
- whether a co-accused is charged with the same offence; and
- any other matter that the Court considers relevant.
- the seriousness of the offence including;
- A legal practitioner appearing for an accused may, on behalf of the accused, consent to a summary hearing of a charge for an indictable offence.
- Nothing in subsection (2) applies to a proceeding in the Children’s Court.
- If a body corporate and a natural person are jointly charged with an indictable offence which may be heard and determined summarily, the Magistrates’ Court must not hear and determine the charge summarily against either of the accused unless—
- each of them consents to a summary hearing; or
- if the body corporate fails to appear in the proceeding, the natural person consents to a summary hearing and the Court proceeds under section 82 to hear and determine the charge in the absence of the body corporate.
