The legal system can be confusing, with lots of different terminology to get one’s head around. When a person is arrested and charged with a criminal offence, the offence will be categorised based on how serious the charges are. The category of offence will have an impact on how the matter is dealt with, which Court will hear the matter, and what penalty may be applicable.
The two main categories of offences are summary offences and indictable offences.
What is an indictable offence?
An indictable offence is a serious offence where the maximum penalty imposed can exceed two years.
Section 3 of the Criminal Procedure Act 1986 (NSW) defines an indictable offence as:
“An offence (including a common law offence) that may be prosecuted on indictment.”
An indictment is a formal document which describes the charges faced by an accused. This document establishes a requirement for the person to attend Court to answer the charges, and initiates the criminal proceedings.
In NSW, indictments are generally only filed after a committal hearing – a form of preliminary hearing in the Local Court to determine whether or not an accused person should be committed to stand trial.
An indictable offence is seen as more serious than a summary offence, attracting harsher penalties and typically tried in the District Court in front of a Judge and Jury. An indictable offence may also be tried in the Supreme Court, depending on the severity of the offence.
Major and minor indictable offences
Indictable offences can be further classified as major and minor indictable offences.
Major indictable offences refer to very serious indictable offences, such as murder and rape. The most serious indictable offences may be classed as ‘strictly indictable offences’ and may only be dealt with in the District Court or Supreme Court.
Minor indictable offences are still viewed as serious offences, however with a lesser degree of severity than major indictable offences. Examples include assault occasioning actual bodily harm and indecent assault.
Minor indictable offences may effectively be treated as summary offences, with the charge being dealt with in the Local Court rather than the District Court. This is termed as an indictable offence being dealt with ‘summarily’.
What is a summary offence?
Summary offences are considered to be less serious than indictable offences, and generally carry a maximum penalty of no more than two years imprisonment.
Common examples of summary offences include drink driving, indecent exposure and offensive conduct or language.
Section 179 of the Criminal Procedure Act 1986 states that:
“Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed.”
There is no such time limit attached to an indictable offence.
Summary offences are dealt with in the Local Court in front of a Magistrate. A Magistrate has less judicial authority than a Judge – the Courts over which they preside hear less serious matters, and do not have a Jury.
The advantage of an offence being dealt with summarily in the Local Court, as opposed to the District Court, are that the penalty imposed cannot exceed two years imprisonment, and the matter will typically be dealt with in a shorter period of time.