Generally, indictable offences in Queensland are dealt with by the District or Supreme Courts, as they are usually serious offences. However, in some cases, indictable offences can or must be dealt with in the Magistrates Court.
The Criminal Code
Section 1 of the Criminal Code 1899 (Qld) defines an “indictment” to mean a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction. A “summary conviction” is defined as summary conviction before a Magistrates Court.
Section 3 of the Criminal Code provides that offences are of 2 kinds, namely, criminal offences and regulatory offences. Criminal offences comprise crimes, misdemeanours and simple offences. Crimes and misdemeanours are indictable offences, which means that the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.
Sections 1 and 3 of the Code make it clear that the indictable offences are to be dealt with in the District or Supreme Courts, unless the Code provides otherwise. In the District or Supreme Courts, a jury is ordinarily the trier of fact in a criminal trial. In contrast, a trial in the Magistrates Court is called a summary trial, and the presiding Magistrate is the sole trier of fact (ie, there is no jury). A matter dealt with summarily is dealt with in the Magistrates Court.
When indictable offences must or can be heard summarily
Chapter 58A of the Criminal Code (containing sections 552A-552BB inclusive) provides for when indictable offences must or can be heard summarily:
– Section 552A of the Criminal Code provides for a list of indictable offences which must be dealt with summarily on Prosecution election.
– Section 552B of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless the defendant elects for a jury trial.
– Sections 552A, 552B and 552BA of the Criminal Code are all subject to section 552D, which provides that the Magistrates Court must abstain from hearing and determining a charge and must instead conduct a committal proceeding if it is an offence listed at Schedule 1C of the Penalties and Sentences Act 1992, the Court is of the view that the defendant may not be adequately punished on summary conviction after considering submissions, or if exceptional circumstances exist.
– Section 552H of the Criminal Code provides that the maximum period of imprisonment under section 552A, 552B or 552BA is three years, unless the court is constituted by a magistrate imposing a drug and alcohol treatment order, in which case the maximum penalty is four years imprisonment.
Indictable offences which Prosecution can elect for summary trial
The list of indictable offences that must be dealt with summarily on Prosecution election is contained at section 552A(1) of the Criminal Code.
The offences listed include the commission, counselling or procuring, attempt, or becoming an accessory after the fact of any of the following offences under the Criminal Code:
Section 141: Aiding persons to escape from lawful custody.
Section 142: Escaping from lawful custody.
Section 143: a person responsible for keeping someone in lawful custody permitting escape from lawful custody.
Section 205A: Contravening an order about information necessary to access information stored electronically.
Section 340: assaults committed with intent to commit a crime, or as part of an unlawful conspiracy in relation to any manufacture, trade, business, or occupation or committed against a police officer, a person performing a legal duty, a person aged over 60, or a person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device.
Indictable offences which must be dealt with summarily unless defence elects jury trial
The indictable offences that must be dealt with summarily unless the defence elects for a jury trial are listed at Section 552B(1) of the Code.
The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:
A sexual offence without a circumstance of aggravation for which the defendant has pleaded guilty, the complainant is at least 14 years of age and the maximum sentence is more than three years.
Section 339: assault occasioning bodily harm which is not committed in company, without the use of a dangerous or offensive weapon or instrument and not during the term of a community service order.
An offence involving an assault without a circumstance of aggravation and which is not of a sexual nature, and for which the maximum penalty is more than 3 years but not more than 7 years.
Section 60A: Participants in criminal organisation being knowingly present in public places.
Section 60B: Participants in criminal organisation entering prescribed places and attending prescribed events.
Section 76: Recruiting a person to become participant in criminal organisation.
Section 77B: Habitually consorting with recognised offenders.
Section 328A: Dangerous operation of a vehicle (with a circumstance of aggravation at Section 328A(2)).
359E Punishment of unlawful stalking if the maximum term of imprisonment for which the defendant is liable is not more than 5 years.
An offence against chapter 14 (Corrupt and improper practices at elections), division 2 (Legislative Assembly elections and referendums), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.
An offence against chapter 22A (Prostitution), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.
An offence against chapter 42A (Secret Commissions).
Indictable offences which must be dealt with summarily
Section 552BA(4) of the Code provides that ‘relevant offences’ must be heard and dealt with summarily.
Relevant offences are defined as indictable offences which either:
- 1. carry maximum sentences of three years or less; or
- 2. are an offence under part 6 of the Code, excluding an offence under Chapter 42A (secret commissions) or an ‘excluded offence’ listed at Section 552BB.
The list of excluded offences contained in the table of Section 552BB includes the following offences: