An indictable (pronounced in-dyte-able) offence is a serious crime against the person, property or public order. Indictable offences were once known as felonies (and still are in some overseas legal systems, such as in the United States). All Australian jurisdictions have criminal codes that outline which criminal offences are indictable. According to the Crimes Act (Victoria, 1958) some examples of indictable offences are:
- Murder and manslaughter
- Kidnapping and child stealing
- Sexual offences, such as rape, incest and indecent assault
- Child pornography offences
- Drug offences, such as trafficking and cultivating an illicit drug
- Causing serious injury (intentionally or recklessly)
- Theft, robbery and armed robbery
- Burglary and going equipped to steal
- Obtaining property by deception
- Threats to kill or to inflict serious injury
- Negligently causing serious injury
- Criminal damage to property
- Unlicensed manufacture of explosive substances
- Dangerous driving causing death or injury
- Extortion with threats to kill, cause serious injury or destroy property
The fundamental difference between an indictable offence and a summary offence is how they are tried. A person accused of an indictable offence always retains the right to a trial by jury. :
Trial by judge and jury
In these trials, a judge serves as the decider of law and a jury as the decider of fact. All trials by jury must begin with the presentment of an indictment – that is, a formal accusation of an indictable offence. The indictment is prepared by the attorney-general or, more likely, a Department of Public Prosecutions. It will contain a summary of the alleged crime(s) as well as of evidence, such as witness statements and physical evidence. The indictment is then examined by a magistrate in a committal hearing. In this hearing the magistrate will decide if there is sufficient evidence for the matter to proceed to a trial by jury. This is not a ‘test’ of guilt or innocence, simply a preliminary examination of the evidence to see if it warrants a longer, more intensive trial.
Depending on the seriousness of the offence, trials for indictable offences are either heard in intermediate or superior courts. The great majority of indictable offences are tried in intermediate courts, such as the County Court of Victoria or the District Courts of other States. Only the most serious offences – murder, manslaughter, multiple sexual offences or extensive drug-trafficking – are tried in the Supreme Courts.
Indictable offences tried summarily (by a magistrate alone)
Some indictable offences may be tried summarily – that is, in an inferior court by a magistrate, without the involvement of a jury. In these trials, the magistrate will act both as the decider of law and the decider of fact. In Victoria, Section 53 of the Magistrates’ Court Act (1989) allows for Magistrates’ Court hearings of any matter punishable by a maximum term of imprisonment of 10 years or less, or a fine of $120,000 or less. If the indictable offence has a longer maximum term of imprisonment or a higher maximum fine, then it must be tried by a judge and jury. Less serious offences such as theft, burglary and criminal damage are generally tried summarily rather than before a jury.
A person accused of an indictable offence has the automatic right to a trial by jury – so the accused must agree to having their case tried summarily. The magistrate will always ask the accused if he or she consents to the matter being tried summarily, or if they prefer it be heard by a jury. There are two distinct advantages in being tried summarily. First, the summary trial will be speedier and cheaper (particularly if the accused is paying for a barrister). Second, a summary trial limits the range of sanctions available to the magistrate.