Offences are categorised on the basis of maximum penalty. The exception is category 4 offences which are treated differently because of their significant seriousness, complexity or public symbolism.
Each category of offence has a default trial type, being either a Judge-alone trial or a jury trial. In some cases, a Judge-alone trial may be presided over by Justices of the Peace or Community Magistrates.
Defendants charged with offences incurring maximum penalties of 2 or more years’ imprisonment have the right to elect trial by jury.
Category 1 offence
An offence punishable with a maximum penalty of a fine only.
An infringement which is commenced by filing a charging document under the Criminal Procedure Act 2011 rather than by issuing an infringement notice.
An offence not punishable by a term of imprisonment but punishable by a community based sentence (for example, an offence under section 11B of the Summary Offences Act 1981 which is punishable by a sentence of community work or a fine of $500 or both).
Judge-alone trial in a District Court.
Category 2 offence
An offence punishable by a term of imprisonment of less than two years.
Judge-alone trial in a District Court.
The High Court may make an order that the proceeding be transferred to that court, in which case the type of trial will be a Judge-alone trial in the High Court.
Category 3 offence
An offence that is punishable by imprisonment for life or by imprisonment for 2 years or more, except those offences listed in Schedule 1 to the Act (category 4 offences).
Judge-alone trial in a District Court
The defendant may elect a jury trial, in which case the type of trial will be a jury trial in the District Court.
The High Court may make a Protocol order that the proceeding be transferred to that court, in which case the type of trial will be either a Judge-alone trial or a jury trial in the High Court (depending on whether the defendant had elected a jury trial or not).
In some instances, despite a defendant electing a jury trial, the court may order that the trial be conducted by a judge without a jury: see section 102 or 103 (long and complex cases or juror intimidation).
Category 4 offence
An offence listed in Schedule 1 to the Act (for example, murder and manslaughter).
Jury trial in the High Court.
In some circumstances the court could order that the trial be conducted by a judge without a jury (long and complex or juror intimidation).
More than one category of offence or more than one defendant
If a proceeding involves a defendant charged with more than one category of offence, the proceeding is conducted under the highest category of offence.
For example, a defendant charged with a category 2 offence and several category 3 offences elects jury trial on one of the category 3 offences. When filing the charging document, the prosecutor notifies the court that the charges are to be heard together and the proceeding is treated in entirety as a category 3 offence. Because of the election, a jury will determine the verdict for all charges if the proceeding continues to trial (section 139(1)(a)).
If a proceeding involves more than one defendant, the proceeding is generally to be conducted in accordance with the highest category of offence across both defendants.
For example, one defendant is charged with a category 2 offence and another with a category 3 offence. The category 3 defendant elects a jury trial, so the prosecutor notifies the court that that the charges are to be heard together and the proceeding is conducted in entirety as a category 3 offence. All charges must be determined by a jury unless there are exceptional circumstances warranting separate trials (section 139(2)(a)).