What is an Indictable Offence?

Generally, some violations that are deemed as more serious offences may involve a long period of time to obtain a decision. However, if the prosecutor and defendant are in agreement, a jury rather than a judge may hear the case.



As stated in Section 190 of the Legislation Act of 2001 of the ACT, an offence is indictable if:

• It carries a maximum sentence of two years in prison
• Declared to be an indictable offence by an ACT law, or
• All indictable offences that have been heard en banc should be included

Indictable offences can be identified as one of the following:

• murder
• manslaughter
• drug trafficking
• sexual offences
• burglary or armed robbery
• fraud
• treason
• indecent assault
• grievous bodily harm

A person charged of committing an indictable offence is subject to:

• be present at all court hearings
• attend to the first hearing (committal hearing) in the Magistrates Court

There are two types of indictable offences as classified below.

A major indictable offence is an offence that threatens or endangers the life of one's individual. This includes murder, sexual offences, assault offences, dishonesty and damage to property.

A murder or treason charge, as well as other major indictable offences, must be heard by the Supreme Court. Nonetheless, the District Court can handle all other serious indictable offences.

As mentioned before, an individual who has been accused of an indictable offence is subject to attend an initial trial called a committal hearing and an answer charge hearing, in which the offender must plead guilty or not guilty of the crime. This is also the time when the prosecution presents all the evidence to determine whether they are enough to support a conviction.



If the defendant has plead guilty of the crime, he/she will be subject to a sentence. But if the offender pleads not guilty, he/she will be sent to a higher court as determined by the magistrates court that there is a case to answer.

A minor indictable offence is an offence that is more serious than summary offences but less serious than the majority of other indictable offences.

This includes indecent behaviour, stalking, theft, deception/fraud, indecent assault, public nuisance, illegal use of a motor vehicle, property damage, and criminal trespass.

A minor indictable offence is heard in the magistrates court of the district court. Unless the defendant requests a judge-only trial in a superior court (if only with legal intervention), criminal trials in each of these courts are conducted before a judge and jury.

It is important to note that a minor indictable offence issues the offender with a "Notice to Appear" (NTA) which outlines the charges you are going to take including the date at which you have to appear in the Magistrates Court.

In the event that the defendant fails to attend the stated court hearing, the Magistrates Court may issue a warrant of arrest to him/her.



A police prosecutor will then ask for an Identification Particulars Notice providing the defendant's personal information (name, address, fingerprints, and ID photo) which should assist them in their police investigations.

At this preliminary hearing, the defendant may either submit a guilty or not-guilty plea at the District Court. However, he/she is also permitted to request an adjournment from the Magistrates Court to give him/her an enough time to get a legal counsel.

For instances where an accused person has been proven to commit both major and minor offences, the summary of his/her charges may be added to the same Indictment (a formal, written accusation of a criminal charge) where they have a common source of origin or have a comparable nature.

The procedure then will follow which offence has the most serious crime. If for instance both major and minor indictable offences are set in one Indictment, the minor indictable will be handled in accordance with the major indictable's procedure.

However, it will still be up to the higher courts to decide whether they will give the summary offences back to the Magistrates Court for further adjudication.

The court also has the option to handle the charges in a single indictment in separate proceedings or the charges in different indictment be jointly charged in a single proceeding.

The charges set forth for indictable offences are not subject to a statute of limitations. This means that charges may still be filed in cases where it becomes clear that a significant crime was committed a long time ago.



Even when the claimed offence occurred several years ago, this is still the case. There is no difference in the process for prosecuting and trying a historical offence, even if it may be more difficult to establish that an indictable offence was committed after a significant period of time has passed.

The ACT follows the elements under the Criminal Procedure Act 1921 Section 111 of the Criminal Law in dealing with certain prosecutions. The Criminal Procedure Act was created to control how criminal cases other corresponding issues were conducted. To put it in another way, the Act basically controls how criminal cases are handled in legal proceedings.



As a general rule, only the Supreme Court is responsible over all the jurisdictions for indictable offences. Compared with other states that may have a middle court, the Australian Capital Territory (ACT) only has the Magistrates Court and the Supreme Court to handle all the cases. Consequently, the Supreme Court receives all cases that the Magistrate Court is unable to manage.

Before a case is handed over to the Supreme Court, a preliminary procedure or a Committal Hearing occurs first. At a Committal Hearing, the magistrate is laid down with evidences in which he/she will determine whether they are sufficient or insufficient.



During this part, the defendant must prove beyond reasonable doubt that he/she is not guilty of the offence. From here, the Magistrates Court will decide what judgment will be bestowed.

Major indictable offences are generally charged with a penalty of five or more years imprisonment.

However, regardless of the defendant's pleading, major indictable offences can only be dealt with following the initial committal proceedings made in the District or Supreme Court.

It is also important to understand that the committal hearings do not take place with only the presence of witnesses but they are done upon submission of signed statements.

What the Magistrates Court does is to determine whether the principles of the offence charged could be proven based solely on the statements presented, without hearing from the defence, and by considering the strongest available evidence from the prosecution.

Thus, the Magistrate has the power to dismiss the case given that the presented evidences are not sufficient enough to support the offence. On the other hand, sufficient evidences will subject the defendant to submit a guilty or not guilty plea.

In other cases that the Magistrate decides that further investigation is needed to determine a case, the defendant will still need to submit a guilty or not guilty plea. This will then be handed over to the Supreme or District Court which may be subjected to a trial or punishment contingent to the plea.

Some of the most serious offences that can be granted with life imprisonment may include murder and treason.



While manslaughter and killing without malice are indictable offences that can result in sentences of up to 20 years in jail, or 28 years in more severe cases.

As for sexual and rape crimes, depending on how serious the offence is, they can result in sentences of up to ten years in jail.

In the event that the the person accused pleads guilty of the offence before the committal procedure takes place, the Magistrates Court will no longer subject him/her to an answer charge hearing or a "case to answer". Thus, after the prosecution, the Court may:

• Determine the defendant's sentence and impose it
• Send the case to a higher court so that a proper punishment can be imposed

The committal hearing allows the defendant to provide an "answer charge" to his/her indictable charges. This contains the defendant's counter argument including some proofs or evidences that can support his/her stand of the case.



However, if the person accused pleads not guilty of the offence, the Court may:

• be provided with the sections related to trials as based on the Criminal Procedure Act 1921 Section 111
• The Court must also halt all proceedings and give the defendant enough time to respond to all the charges granted against him/her.

Penalties for a minor indictable offence

• offences with a maximum fine of $120,000 but no mandatory jail time
• offences with a five-year maximum sentence for imprisonment:
• there is an interference with, damage to, or destruction of property and the loss as a result of the offence is less than $30,000;
• a crime when the victim made a threat to tamper with, destroy, or damage another person's property, and if that threat had come true, the ensuing loss would not have surpassed $30,000;
• carelessly harming someone;
• sexual attack on a victim who is at least 14 years old;
• theft offences with a value of $30,000 or less (but not robbery or violent offences)
• Serious criminal trespass where the planned offence is a theft offence with a $30,000 or less value, or an interference with, damage to, or destruction of property offence with a $30,000 value or less.

In NSW, minor indictable offences are usually faced in a single magistrates court instead of a judge and jury.

At times, the district court may also treat a minor indictable offence as a summary offence. In this cases, the penalties for a summary offence will be applied the same way for a minor indictable offence which equates to a maximum penalty of two years imprisonment.

However, if the prosecution decides that the offence be handled by a higher court, the defendant will then need to face more serious charges. If found guilty, the highest penalty that the local court can grant you will depend on the nature of your offence, its gravity, and the strength of the evidence the prosecution has in its case.

But if you are in NSW, it would be best for you to get legal counsel from a criminal defence lawyer so you can get a chance to bring your case to the district court rather than on a local court.

The advantage of getting an experienced criminal lawyer is that he/she has the ability to drop the case in a matter of time. Still, it is important to bear in mind that although you have a minor indictable offence, you could still wind up with harsh punishments and a criminal record that could last a lifetime.

We all know by now that indictable offences are the most serious type of all offences. Thus, no matter how much time has elapsed since the offence, it will still show up on the Nationally Coordinated Criminal History Check which can be obtained through the Australian National Character Check official website.

Taking all of this into consideration, indictable offences whether major or minor will still be violations against the law regardless of its nature and cause. Thus, it is important that you never take any of its risks at all costs.

But if you were ever caught in the situation for whatever reason it may be, make sure you have the best opportunity of having your case effectively defended by the most experienced lawyers in your area.

Come to Andrew Byrnes Law Group for skilled and specialised legal counsel if you are facing an indictment and require legal representation for your defence. We are renowned criminal lawyers based in Canberra, and we would be honoured to fearlessly fight for you.