As explained above, summary offences are generally the less serious offences, which are normally heard and decided by a single magistrate in a Court of Petty Sessions.
The more serious offences are generally heard before a judge and jury in the Supreme Court, and are called ‘indictable’ offences.
Preliminary proceedings are governed by the Justices Act 1959. They take place in a Court of Petty Sessions at the Magistrates Court. Preliminary proceedings are intended to help streamline the process of trial by directing a defendant into the appropriate proceeding. At the preliminary proceedings the defendant can plead guilty or not guilty. If the offence type permits, the defendant may elect either a summary trial or a trial before a jury (before a magistrate in the Magistrates Court or before a judge and jury in the Supreme Court). If the defendant pleads guilty, the next appearance will be for sentence. If the defendant pleads not guilty, s/he will either be directed into a summary trial or a jury trial, depending on the offence.
If a defendant pleads guilty to an indictable offence, (other than one that can be dealt with by the Magistrate’s Court) the plea must be endorsed on the complaint, and the person will be committed to the Supreme Court for sentence (Justices Act, s60(1)). Under some circumstances, a magistrate has the power to commit a person, convicted summarily, to the Supreme Court for sentence (s72B(2)).
Defendants charged with an indictable offence are required to give notice in advance if they are going to rely upon alibi evidence in defence. The defendant must include particulars of the alibi, and the name and address of any person proposed to be called in support of the alibi (Criminal Code, s368A).
Record of the Hearing
The evidence of the witnesses at the preliminary proceedings is recorded and typed up in documents known as ‘depositions’. A free copy of these depositions is available from the Crown for the accused to use at the trial.
Indictable Offences dealt with Summarily
Special rules apply to certain indictable offences which enable them to be dealt with summarily. They fall into two groups: those where the offence may be dealt with summarily without the accused’s consent, and those where the accused’s consent is required.
Indictable offences (such as stealing, killing of animals with intent to steal, false pretences and receiving) must be dealt with summarily without the defendant’s consent if the amount of money or value of the property involved does not exceed $5,000, though a magistrate can still decide that in special circumstances they should go before a jury. (Justices Act, s71).
Certain other indictable crimes may be dealt with summarily with the consent of the defendant. These include escape, harbouring offenders and the making of false declarations. If the accused does consent, the case will proceed as with other summary offences.
Special provisions apply to children who are dealt with under the Youth Justice Act or persons under the age of 18 who are appearing jointly with an adult offender (Youth Justice Act 1997 (Tas)).
In making the choice to have the magistrate decide the matter rather than to go before a judge and jury, the defendant should take into account the following factors:
- the chances of an acquittal may be higher before a jury than before a magistrate;
- the defence may be better able to present its case before a jury, being able to rely on the evidence given in the committal proceedings;
- if the accused is convicted by a magistrate, there may be a second chance through an appeal to the Supreme Court;
- the penalties a magistrate can impose are lower than those that a judge can impose after a jury trial.
Page last updated 25/07/2019