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Contributed by MichaelCrowley and current to 27 July 2018

Criminal court process

Traditionally, all criminal matters begin in the local or magistrates court. There is a distinction between summary, summary or indictable and indictable offences. Summary offences are the least serious criminal offences and are almost always heard in the local court and carry a maximum penalty of two or three years. Indictable offences are heard in the higher courts and carry the maximum sentences set out in legislation. Offences that are labelled as summary or indictable will be classified as either summary or indictable depending on the facts. See, for example s 317 Assault causing bodily harm. Indictable offences are heard in either the District or Supreme Court. Before indictable matters proceed from the local court an accused person who enters a a plea of not guilty will first attend a committal hearing. At the committal hearing the prosecution will hand to the magistrate the brief of evidence (copy of indictment and witness statements). If the magistrate is satisfied that a person could be convicted the magistrate will commit the accused person to either the District or Supreme Court.

Offences heard in the local court

A magistrate, sitting alone, hears all matters that stay in the local court. These offences comprise those classified as summary and those as summary and/or indictable. The advantage is speed and the sentencing limits placed upon magistrates. A disadvantage can be that the magistrate sits as both judge of the law and of the facts.

Offences tried by judge and jury

In the district and supreme courts, criminal matters are generally decided by a judge and jury. The judge not only presides over the court process but also rules on any matters of law. The jury comprising twelve citizens determines whether or not an accused person is guilty or not guilty. While the jury is the sole decision maker on questions of fact, it is guided in this process by the judge who advises the jury on the relevant law to be applied. Judge-alone trials can take place (see for example,The State of Western Australia-v- Rayney [2011] WASC 326 (30 November 2011).

Costs can be awarded in criminal matters. An accused person can apply for costs if successful (Official Prosecutions (Accused Costs) Act 1973 (WA).


Both the accused and the prosecution have rights of appeal from court decisions. Appeals from the lower courts to higher courts in WA are governed by the Criminal Appeals Act 2004 (WA). Reference should also be made to each court’s legislation including regulations and practice notes. The highest court of appeal in Australia is the High Court of Australia.

For more on court processes see About the WA Legal System and penalties see Penalties and Prisoners

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