In Western Australia, the law recognises that there are some offences that are more serious than others.
The Courts in Western Australia classify serious offences as ‘indictable offences’, or a ‘crime’. Indictable charges will inevitably end up at the the higher courts if the matter is listed for a trial or sentencing.
The lesser charges are known as ‘summary offences’ or simply as an ‘offence’. These matters can be dealt with in the Magistrates Court.
Indictable offences are prosecuted by the State or Crown. Depending on the jurisdiction and matter type, indictable charges are usually dealt with by a Public Prosecutor from the Office of the Director of Public Prosecutions in Western Australia.
Summary vs Indictable Offences in Western Australia
According to the Criminal Code in Western Australia, summary offences and indictable offences differ in the severity of the crime.
When considering whether a charge is serious or not, you can refer to the Criminal Code and check the legislation. A charge will usually be classified as an “offence”, or a “crime”. Some offences are also known as “either-way” offences, where the matter can be dealt with by in the District Court or the Magistrates Court.
What Types of Offences Count as Indictable Offences?
There are a number of indictable offences in Western Australia. These include,
- Assault With Intent to Commit Robbery
- Burglary
- Criminal Damage of certain monetary value
- Drug Offences of certain weight
- Robbery
- Serious Assaults if accompanied by other indictable offences
- Serious Fraud of certain value
- Rape charges
What is an Either Way Offence?
An offence is considered to be an either-way offence when there are two maximum penalties specified by legislation for a particular crime. The Summary Offence is tried in the Magistrates Court, and a separate maximum penalty for Indictable Offence is dealt with in the District or Supreme Court.
Examples of Either Way Offences
- Fraud under section 409 of the Criminal Code
- Possessing stolen property under section 417(1) of the Criminal Code
- Being armed in a way to incite fear under section 68 of the Criminal Code
- Indecent assault under section 323 of the Criminal Code
- Obscene act in public under section 202 of the Criminal Code
Either way, offences are generally heard under summary jurisdiction. An exception to this is when defence or prosecuting teams apply for the charge to be tried as an indictment under Section 5(2) of the Criminal Code. Applications asking that ‘either way’ offence be dealt with on indictment are based on,
- The severity of the crime
- If a Magistrates Court cannot give a punishment that is harsh enough for the crime
- If a co-defendant is tried on indictment
- If the charge shows the accused’s pattern of destructive behaviour
- If the accused has other strictly indictable charges.
- The interest of justice
Procedure for Indictable Offences in the Higher Courts
According to the Western Australia Criminal Procedure Act 2004, all indictable offences starts in the Magistrates Court of WA. This is because the Disclosure/Committal Mention Hearing must take place before the matter can be transferred to a higher court. During this hearing, the Court will decide if the prosecution has offered full disclosure.
A guilty plea will result in transferring the case to a higher court where a Sentence Mention Hearing takes place. At this time, the Court sets a Sentencing Hearing date.
Indictable offences punishable by life imprisonment are tried in the Supreme Court of Western Australia. The District Court of Western Australia hears all other indictable offences.
Judge Alone or Judge and Jury for Indictable Offences
A jury tries all indictable offences unless an order is made according to Section 118 of the Criminal Procedure Act 2004 WA. If such an order exists, a judge will hear the trial alone.
When deciding whether a trial should be heard by a judge alone, the Court can act as it sees fit. The Court can make a Section 118 order if:
Section 118 Order
- The defendant chooses to make the application, and the Court agrees justice will be served by doing so.
- The prosecution applies, the accused approves, and the Court believes a trial by judge alone is in the interest of justice.
- If the trial is deemed unreasonably oppressive to a jury because it is either exceedingly lengthy or complicated, the Court can order a trial by judge alone.
- If the offence is ‘corrupting or threatening a juror’ (under Section 123 of The Criminal Code of Western Australia), the Court can order a judge-alone trial.
*Please Note* An application for a trial by a judge alone can be dismissed if the Court believes a jury trial is necessary.
There is no time to waste if you face charges in an indictable offence. You will want a defence strategy right away. To ensure the matter is dealt with in a timely manner, please contact us.
Our team at WN Legal has extensive experience defending others facing indictable charges. We are a boutique law service that always gives our clients 100% in order to get the best outcome.
