Other Criminal Law
3. What is a Criminal Offence?
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 12 Jul 2015
- A crime is an illegal act that is against the laws of a state, territory or the Commonwealth. State, territory or federal police file charges on behalf of the government in the place where the crime was committed.
- The criminal law is different in each state and territory and the Commonwealth. This means the wording of offences and the penalties that apply can vary considerably depending on where you are or where the offence is alleged to have been committed.
- Victims of crime are witnesses for the police or the prosecution. Victims do not have the power to lay charges or withdraw charges. Only the police can file charges and only the police or the Director of Public Prosecutions can withdraw charges.
- Being charged with a crime is serious and can result in a criminal record as well as other serious penalties. If you have been charged with a criminal offence or you think you might be charged you should seek legal advice as soon as possible. Our free Find a Lawyer directory may help put you in touch with the assistance you need.
- Less serious offences are called summary offences. Summary offences are heard and determined by a magistrate in the Magistrates’ or Local Court.
- Serious criminal offences are called indictable offences. They are heard and determined by a judge and jury in the District, County or Supreme Courts.
- Some indictable offences are called ‘indictable triable summarily’. This means that the parties can choose or a magistrate can order that indictable offence to be heard and determined in the Magistrates’ or Local court.
- Criminal offences must be proven beyond reasonable doubt. The onus (or burden) of proof lies with the police or the prosecutor. A person who has been charged with a criminal offence is not required to prove anything.
- Sometimes a person who has been charged with a criminal offence may have a legal excuse or explanation for their behaviour which means they should not be convicted. This is called a defence. Common defences include:
- mistake; and
- self-defence.
- Ignorance of the law or not knowing that you were committing a crime is not a defence but may reduce the severity of the punishment.
- All offences are given a maximum penalty by law. The maximum penalty for an offence is reserved for the worst cases. Sentences for individual offences are decided according to many factors including:
- the seriousness of the criminal offence;
- current sentencing practices for the type of offence;
- whether the offender has pleaded guilty;
- whether the offender has shown remorse; and
- any mitigating factors relevant to the offender such as age or mental capacity.
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