Last updated 21 December 2016

The process to be followed from this point depends upon what type of charge is before the court (see Introduction to Criminal Law for the various types of offences). The type of offence can be ascertained by reference to the legislation that creates it.

Regulatory and summary offences are determined and punished by a magistrate in a Magistrates Court (s 19 Justices Act 1886 (Qld) (Justices Act)).

Additionally, some indictable offences must be dealt with in a Magistrates Court unless the defendant elects to go to trial by jury (s 552B Criminal Code Act 1899 (Qld) (Criminal Code)) or if the prosecution elects to proceed in this way (s 552A Criminal Code, ss 13, 118 Drugs Misuse Act 1986 (Qld)).

For some offences, the election as to in which court the charges can be dealt with rests either with the prosecution or the defence, and for some offences it is mandatory that they be dealt with summarily in the Magistrates Court. It is not possible to give an easy answer to what can or cannot be dealt with in a Magistrates Court or what must be dealt with in a higher court. The provisions are quite complex, and it is wise to get legal advice on these issues.

Despite these elections, a discretion remains with the magistrate to determine that, due to the seriousness of the offence, a defendant may not be adequately punished on summary conviction and thus the matter should proceed as with other indictable offences (s 552D Criminal Code). Proceedings finally determined in the Magistrates Court are called summary proceedings.

Where the defendant has a choice as to jurisdiction, a number of considerations might apply:

  • court expenses—to proceed on indictment will be much more costly, not least because there may be two hearings (a committal hearing in a Magistrates Court and trial in a District or Supreme Court). There is provision for costs to be met by the unsuccessful party at a summary hearing (s 158 Justices Act) but not for indictable proceedings. However, legal aid is less likely to be granted in the summary jurisdiction
  • early resolution of the matter—to proceed on indictment will take much longer before the matter is ultimately resolved. However, a properly prepared case with the benefit of a preliminary hearing of the evidence has been recognised by the High Court as crucial to the defendant’s right to a fair trial (Barton v The Queen (1980) 147 CLR 75 at 100). Again, the changes to how committal hearings are dealt with will have an impact on these decisions
  • maximum penalties vary—maximum penalties prescribed in the summary jurisdiction are generally less than those open to the higher courts. However, whilst this is true, it is unlikely that a judge will impose a higher penalty than a magistrate on the same facts. Indeed, in respect of some offences, anecdotal evidence to the contrary exists
  • consistency—there is anecdotal evidence that summary sentences are less likely to be consistent. Higher court proceedings are more readily published and accessible to the public. It should, however, be noted that greater resources are now available to judicial officers in relation to sentencing ranges through various databases which are able to be accessed.

The more serious indictable offences are ultimately heard before a judge and, if guilt is contested, also by a jury in the District or Supreme Court. Very serious indictable offences, such as murder, manslaughter and drug offences involving large quantities or a commercial element can be heard in the Supreme Court, District or Magistrates courts. Other indictable offences, for example robbery, rape or dangerous driving causing death, are heard in the District Court.