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 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 legislation associated with the charge. So in simple terms that means, an indictable offence is any offence with a maximum penalty of more than 2 years.
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 judge and jury in the County or Supreme Courts.
Procedures for an indictable offence
There are two categories of indictable offences;
- Offences that can be heard and tried summarily; and
- Offences that are charges that can only be heard in the committal stream.
If a person is charges with an indictable offence that can be tried summarily, that person has the option to consent to having the matter heard in the Magistrates’ Court under what is known as the summary jurisdiction. There are many advantages to proceeding in the summary jurisdiction of the Magistrates Court;
- Generally less costly,
- Cases can be resolved much faster and
- It is much easier to appeal, to the County Court especially when the matter proceeds as a plea of guilty.
The main drawback of contesting a matter in the Magistrates’ Court is that instead of having the matter adjudicated by 12 members of a jury, the decision will rest solely with a magistrate.
- When deciding whether to consent to the jurisdiction of the Magistrates’ Court, particularly so in relation to contested indictable offences, it is crucial to consult with an experienced criminal lawyer.
The indictable stream (or committal proceedings stream, as it is commonly known) is a more formal and systemised way of hearing what parliament considers to be a very serious charge. These types of matters will begin in the Magistrates Court, there will be a filing hearing, committal mention, committal hearing and then the matter will be committed to the Count or Supreme Court.
Whilst Section 325 of the Crimes Act 1958 suggests a breakdown of indictable offences into indictable charges and serious indictable charges, designating a serious indictable offence as a charge carrying a maximum of five years’ imprisonment, it is unhelpful to look at serious indictable charges this way, as most indictable offences already carry a penalty of five years or more.
A more practical distinction can be drawn between;
- Indictable charges that may be heard in the Magistrates’ Court (via the summary jurisdiction) and
- Indictable charges that cannot be heard and finalised in the Magistrates’ Court of Victoria.
In relation to an indictable offence that can be heard in the summary stream. The matter will always start as a mention and either finalise at mention stage or proceed to a contest mention and then a contested hearing but always remaining in the Magistrates Court.
Whether an indictable offence can be heard in the summary stream should always be determined in consultation with a lawyer.
Indictable offences heard summarily
When can an indictable charge be 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 triable summarily 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. 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 certain serious charges are withdrawn and where appropriate, a defence lawyer may apply for the remaining charges to be heard in the a summary jurisdiction. In deciding whether to grant the application, 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.
What are considered serious indictable offences?
- Serious indictable offences are charges that can only be dealt with via committal proceedings in the Magistrates Court.
- Examples of serious criminal charges that can only be dealt with in the indictable stream are;
- As as a general rule;
- Charges relating to the death of a victim
- Charges relating to serious injury (not recklessly causing serious injury)
- Charges relating to serious sexual offences involving sexual penetration.
- Charges relating to serious drug charges involving a commercial quality
- Charges that attract a mandatory sentences of imprisonment.
- Charges found in the list of category 1 offences in the Sentencing Act 1991
- Charges that are describe as Serious Youth Offences
- The term serious indictable charges, does not include indictable offences that can be tried summarily.
Legislation: When indictable offence can be 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.
