All indictable offences may be tried on indictment, but some indictable offences may be tried summarily in the magistrates court if the Criminal Code, or another written law, provides for a “summary conviction penalty” for an indictable offence and the accused is charged with committing the offence in circumstances where the summary conviction penalty applies to that charge. These offences are known as “either way offences”.

If section 5 of the Criminal Code applies, then unless the magistrates court determines that the charge should be tried on indictment (or unless the Criminal Code or another law provides that the charge may not be dealt with in the magistrates court) the charge must be tried summarily in the magistrates court.

The magistrates court can only consider whether the charge should be tried on indictment if a section 5 application is made -either by the prosecution or by the accused – before the accused pleads to the charge. A decision as to whether an either way offence should be tried on indictment rather than summarily in the magistrates court is “final and cannot be appealed”. The default position is, therefore, that the charge for an either way offence will be dealt with summarily in the magistrates court unless the magistrates court orders that it be dealt with on indictment by a superior court.

If an accused pleads not guilty in the magistrates court to an either way offence then no section 5 application can be made and the charge will be tried in the magistrates court.

If the section 5 application is made before the accused enters a plea, and the magistrates court decides that the charge should be dealt with on indictment, the magistrates court must commit the accused for sentence to a superior court if the accused enters a plea of guilty.

If instead, the accused enters a not guilty plea, or chooses not to enter a plea at that stage, the charge will be adjourned to a “disclosure/committal hearing”. The intention is that before the accused is required to plead, or is committed for trial or sentence, the prosecution will provide disclosure of all evidentiary and confessional material which is relevant to the charge.

At the disclosure/committal hearing, the accused will be required to enter a plea and will thereafter be committed to a superior court for trial (if the plea is not guilty) or sentence (if the plea is guilty), but if there has not been disclosure by the prosecution by the date of the disclosure/committal hearing, the magistrates court must adjourn the charge to another disclosure/committal hearing to enable the prosecution to comply with the disclosure obligation.

If the magistrates court convicts the accused of an either way offence, then the offender will ordinarily be liable to the summary conviction penalty, and will be sentenced in the magistrates court.

However, in some cases, the magistrates court may determine that it is appropriate that the offender is committed to the District or Supreme court for sentence, in which case the offender will be liable to the penalty which applies when the offence is punishable on indictment.

If you need more information or if you need assistance or advice on how to proceed please call us on (08) 9335 9877 or complete the form below to request an Introductory Consultation.

Request an Appointment