Types of offences

There are three main types of offences: major indictable, minor indictable and summary. The most common offence are dealt with in the Magistrates Court. These offences are relatively minor and are principally summary offence - although included in this category are 'minor indictable' offences which are usually dealt with in the Magistrates Court but, if a defendant requests, may be dealt with in the District Criminal Court. For information about how charges are dealt with in court, see Court - Criminal Matters.

Various Acts create these common offences, but in this section only those offences created by the Summary Offences Act 1953 (SOA) and the Criminal Law Consolidation Act 1935 (CLCA) will be discussed.

Although many offender are fined or given bond, many are sent to prison. These convictions remain on police records, and employment applications often require them to be disclosed. Many of those convicted are the inarticulate, the young, the poor, the mentally impaired and the homeless, see effects of criminal convictions.

Questions of law may be raised in relation to these offences, although many cases simply depend on the facts and circumstances. As for all criminal offences, the prosecution (most often the police) must prove its case beyond reasonable doubt.

Summary Offences

Crimes which can only be heard and decided by a magistrate in the magistrates court are called summary offence. In general, these offences are less serious than indictable offence and the penalties that can be imposed are not as great. Summary offences make up the majority of the so called common offences, see common offences. A summary offence is defined by the Summary Procedure Act 1921 [s.5] as:

• offences not punishable by imprisonment and having a maximum fine of less than $120 000
• having a maximum imprisonment of two years
• including most dishonesty offences involving $2500 or less (even if the maximum imprisonment is more than two years), but not including robbery, or offences of violence, or an offence that is one of a series of offences of the same or a similar character involving more than $2 500 in aggregate.

Examples of summary offences are disorderly behaviour, driving under the influence of alcohol or a drug and minor criminal damage to property. People charged with summary offences cannot be tried by juries even if they would prefer it. Because there is much expense and delay involved in running a trial by jury, many new offences are made triable only by a magistrate.

There is a time limit of two years to lay a complaint for a summary offence or six months if an expiation notice may be given for the offence [Summary Procedure Act 1921 s.52].

Minor Indictable Offences

Indictable offence are divided into major indictable offence and minor indictable offences. Major indictable offences must be dealt with in the superior courts (District or Supreme). Minor indictable offences are dealt with in the Magistrates Court unless the defendant chooses to have the charge dealt with in a superior court. This is an important decision, and should only be taken after receiving legal advice.

If dealt with in the magistrate court, minor indictable matters are prosecuted by the police. If the defendant elects for trial by jury, the Committal Unit, staffed by solicitors from the State Director of Public Prosecutions (DPP), takes over the conduct of the matter at the magistrates court. The DPP has the conduct of the matter once it reaches the District or Supreme court.

Minor indictable offences are defined in the Summary Procedure Act 1921 [s.5] as:

• offences not punishable by imprisonment and having a maximum fine exceeding $120 000
• offences with a maximum imprisonment of five years
• offences with a maximum imprisonment greater than five years, being one of the following:

-          an offence involving interference with, damage to or destruction of property where the loss resulting from commission of the offence does not exceed $30 000

-          aggravated assault causing harm

-          indecent assault (where the victim is 14 years of age or older)

-          dishonesty offences where the amount involved is $30 000 or less (but not robbery or offences of violence)

-          serious criminal trespass where the intended offence is an offence of dishonesty (not being an offence of violence) involving $30 000 or less, or an offence of interference with, damage to or destruction of property involving $30 000 or less.

Some examples of minor indictable offences are listed below, with the relevant sections of the Criminal Law Consolidation Act 1935 noted:

• Theft and receiving s.134 ($2500 - $30 000 total)
• Deception s.139 ($2500 - $30 000 total)
• Serious criminal trespass — places of residence s.170; non-residential places s169
• Illegal use/ interference with a motor vehicle (subsequent offence) s.86A
• Aggravated assault causing harm s20(4)
• Indecent assault s.56
• Causing harm s.24
• Stalking s.19AA
• Gross indecency s.58
• Property damage s.85 (less than $30 000 but more than $2500).

Major Indictable Offences

An indictable offence is one that guarantee the defendant the right to a trial by jury. Indictable offence are generally the more serious crimes, and penalties are generally greater than for other offences. Major indictable matters can only be dealt with, whatever the defendant is pleading, in the District or Supreme court. Some examples are murder, robbery, rape, unlawful sexual intercourse, dishonesty and damage property offences (including arson) where the amount involved exceeds $30 000.

The most serious offences, murder, attempted murder and treason, are dealt with in the Supreme court. Other major indictable offences are dealt with in the District court.

Before a person charged with an indictable offence goes to trial, there is usually a committal hearing at which the prosecution's evidence is presented to see if there is enough evidence upon which a conviction could be founded.

There is no time limit to lay a charge for an indictable offence. From 17 June 2003, this includes sexual offences which are alleged to have occurred before December 1982 (these alleged offences were previously immune from prosecution).