Court NSW

In the criminal jurisdictions of Australia and New Zealand (and some other Western criminal jurisdictions) prosecutions are commenced by the laying of an “information” in a first instance court, which may or may not be the court which ultimately determines the matter. For example, in New South Wales (NSW), Australia, even charges for very serious offences which will be determined in the District Court or the Supreme Court are initially laid in the Local Court.

An information should indicate whether the charge is laid summarily (which means it will usually remain in the Local Court) or indictably (which means the matter is likely to go to a defended trial in the District Court or Supreme Court, following committal).

This reflects the fact that offences which may be charged indictably generally correspond to more serious criminal offending. Committal is the stage in the proceeding when the court determines whether there is a case to be answered by the defendant – that is, whether he or she should stand trial. “Indictable offences” take their name from the “indictment”, a written document prepared on behalf of the Crown following committal.

However, in relation to some offences in NSW which could be laid indictably, the Crown or the Police may nonetheless proceed summarily. This might arise, for example, where an indictable-type charge is involved, but the facts of the offence indicate that it is of a less serious nature than is usually associated with that charge and is more appropriately determined in the Local Court. In New South Wales, indictable matters are prosecuted for the Crown by the Office of the Director of Public Prosecutions (ODPP) rather than the NSW Police. Part of the reason for an indictable-type offence being laid summarily may be (in a particular case) because the likely outcome in that case could be a sentence of imprisonment of less than two years and therefore within the sentencing jurisdiction of the Local Court. If, instead, the Crown or the Police are likely to be seeking a penalty in excess of two years imprisonment for such an offence, it is likely to be laid indictably so it will be tried in the District Court or the Supreme Court which can each impose gaol terms exceeding two years, up to the maximum specified for the relevant charge.

A similar situation exists in New Zealand where a District Court judge can impose a sentence of imprisonment up to the maximum for the charge, although not life imprisonment.

Note: In New Zealand and in most Australian jurisdictions, the trial of an indictable matter may, in some cases, proceed before a District Court judge sitting alone (without a jury), in which case a guilty finding will then be treated as if it were a guilty finding of a jury.

Bearing in mind the sentencing limitation which applies to indictable-type charges laid summarily, most defendants will be happy for the matter to proceed to hearing in the Local Court (or as a summary matter in the District Court in New Zealand). However, in relation to certain charges which can be laid summarily, the defendant may nonetheless elect to have the matter proceed indictably so it is ultimately determined by a jury (or by a District Court judge sitting alone – see Note above). Such an election could be preferred in various circumstances:

  • The defendant might believe a jury would be more sympathetic towards the defendant, perhaps because of the particular circumstances of the case or because of some characteristic of the defendant; or
  • A defendant who has had a lengthy criminal history may feel he or she is disadvantaged appearing before a Local Court magistrate or a judge, who could have some knowledge of the earlier offending (In general, a defendant’s criminal history is not revealed to a jury); or
  • The consequences of a conviction, quite apart from the penalty imposed, might be of such great significance to the defendant, that he or she wants to be sure of having the best opportunity to defend the matter – and perceives that a jury trial would give the best opportunity.

The last issue above can arise, for example, in situations where a person accused of an indecency offence might be concerned about being registered as a sex offender, an automatic consequence of being found guilty of certain offences even where the particular circumstances may not warrant a significant penalty.

Occasionally, where a defendant considers that the police have “got it in for” him or her or have otherwise unfairly pursued the matter, the defendant may elect trial simply to ensure the case is reviewed by the ODPP. It is relevant to this consideration that police processes for considering “representations” (where the lawyer for a defendant asks police to reconsider their position) often require decisions from senior officers outside the local area, whereas the ODPP is sometimes able to make decisions more quickly if that is necessary or justified.

Where an information has been laid summarily with the intent that the charge will be prosecuted in the Local Court (or as a summary matter in the New Zealand District Court), it would usually be unwise to elect trial by jury. However, where an election is available and good reasons exist for exercising it, ultimately the defendant’s decision comes down to whether those reasons outweigh the risk of a sentence of imprisonment exceeding the period which might be imposed in the summary jurisdiction.

It is important to keep in mind that each jurisdiction (eg, each state/country) is subject to a comprehensive body of law, so there are many exceptions to the “usual” procedures affecting committal, trial and sentencing.

Professional advice should be obtained promptly by anyone facing criminal charges.


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