What Happens in a Criminal Case in NSW? A Step-by-Step Guide

A Special Counsel’s Insights

KEY TAKE OUTS:

• A criminal case in NSW does not follow a single path.
• Summary offences stay in the Local Court and are determined by a magistrate.
• Indictable offences are more serious and may proceed to the District Court or Supreme Court.
• Some indictable offences, including many Table 1 and Table 2 offences, can still be dealt with summarily in the Local Court.
• Where a matter is to proceed on indictment, the EAGP process in the Local Court helps determine the final charges and whether the case will be committed to the District Court for sentence or for trial.

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What happens in a criminal case in NSW?

A criminal case in NSW usually begins in the Local Court, where it is classified as either a summary or indictable offence. From there, it may be finalised in the Local Court or proceed to the District or Supreme Court depending on the seriousness of the offence.

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Criminal cases in New South Wales begin in the same place: the Local Court. From there, however, the path a matter takes depends largely on one question — is the offence a summary offence, an indictable offence, or an indictable offence that can still be dealt with summarily?

Understanding that distinction is important because it affects where the case is heard, whether there is a jury, how long the process is likely to take, and what sentencing powers the court has. It also explains why many serious matters move through the Early Appropriate Guilty Plea process before being committed to the District Court for sentence or trial.

 

1. Summary offences and indictable offences: the basic difference

In NSW, criminal offences are broadly divided into summary offences and indictable offences.

Summary offences are the less serious matters. They are dealt with in the Local Court only, before a magistrate, without a jury. Examples commonly include:

• offensive behaviour
• minor assaults
• drink driving offences where no serious injury or death caused to another
• possession of a small quantity of prohibited drugs

Summary matters are usually resolved more quickly than indictable matters and the Local Court has limited sentencing jurisdiction.

 

Indictable offences are the more serious criminal matters. They are ordinarily dealt with to finality in the District Court or, for the most serious offences such as murder and manslaughter, the Supreme Court. Examples include:

• aggravated robbery
• sexual offences
• drug supply and trafficking
• murder or manslaughter

Indictable matters usually begin in the Local Court, but they do not stay there if they are required to proceed on indictment. If they go to trial for a plea of not guilty in a higher court, the trial is ordinarily before a jury, unless a judge-alone trial is ordered.

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2. Not all indictable offences go straight to the District Court

One of the most important features of NSW criminal procedure is that some indictable offences can still be finalised in the Local Court.

These are commonly referred to as Table 1 and Table 2 offences, which are listed in Schedule 1 of the Criminal Procedure Act 1986 (NSW).

• Table 1 offences are indictable offences that are usually dealt with summarily in the Local Court unless either the prosecution or the accused elects to have the matter dealt with on indictment in a higher court.
• Table 2 offences are also indictable offences that may be dealt with summarily in the Local Court, but only the prosecution may elect to have the matter dealt with on indictment.

This is a significant distinction. It means that although an offence is legally “indictable”, it may never leave the Local Court unless the legislation or an election requires that outcome.

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3. Local Court sentencing limits for indictable offences dealt with summarily

Where an indictable offence is dealt with summarily in the Local Court, the court does not have the full sentencing power that would be available in the District Court.

The Local Court’s jurisdiction is limited by Chapter 5 of the Criminal Procedure Act 1986 (NSW). In broad terms:

• for a Table 1 offence, the Local Court may impose a maximum of 2 years’ imprisonment per offence, or the offence’s lower statutory maximum if that is less: s 267
• for a Table 2 offence, the position is generally the same unless a different summary maximum is specifically provided: s 268

 

That 2-year limit is a per offence limit, not necessarily a limit on the overall sentence across multiple offences. Where a person is being sentenced for more than one offence, the Local Court may impose:

• an aggregate sentence, or
• separate sentences to be served consecutively,

so that the total effective term may reach up to 5 years, subject to the court’s statutory jurisdiction.

A practical example is intimidation. It is an indictable offence that may be dealt with summarily. If prosecuted on indictment, it carries a higher maximum penalty. If it remains in the Local Court, however, the sentencing court is constrained by the Local Court jurisdictional cap. In practice, that means the magistrate may assess the seriousness of the matter by reference to the offence as a whole, but cannot impose a sentence beyond the Local Court’s statutory limit.

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4. What happens in a summary matter?

In a summary matter, the process is usually relatively straightforward.

A defendant will ordinarily:

• be charged by Court Attendance Notice or after arrest
• appear in the Local Court
• enter a plea of guilty or not guilty

If guilty, proceed to sentence in the Local Court, if not guilty, have the matter listed for a defended hearing before a magistrate.

Because summary offences remain in the Local Court throughout, there is no committal process and no jury trial.

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5. What happens in an indictable matter?

The process is more involved for indictable offences. There are really three possibilities:

• the offence is indictable but is dealt with summarily in the Local Court
• the offence is indictable and is elected into the District Court
• the offence is strictly indictable, meaning it must proceed to a higher court and cannot be finalised in the Local Court

It is in that third category, and in many elected indictable matters, that the Early Appropriate Guilty Plea (EAGP) process becomes important.

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6. What is the EAGP process in NSW?

The Early Appropriate Guilty Plea scheme was introduced to encourage earlier resolution of indictable criminal matters, identify the charges that will actually proceed, and avoid unnecessary delay.

In practical terms, the EAGP process applies to matters that are to proceed on indictment and move from the Local Court to the District Court or Supreme Court. The process can be summarised as follows.

1. First, the matter starts in the Local Court: Even serious indictable matters usually begin in the Local Court. At this stage, the Local Court is not determining guilt on indictment. Rather, it is managing the preliminary steps before the matter is either resolved or committed to a higher court.
2. Second, the prosecution serves the brief of evidence: The accused is provided with the material said to support the charge.
3. Third, the matter is referred to the ODPP: For indictable matters proceeding on indictment, the Office of the Director of Public Prosecutions (ODPP) reviews the case.
4. Fourth, a charge certificate is filed: This is a key step. The charge certificate identifies the charges the prosecution will proceed with. It may confirm the existing charges, withdraw some charges, or substitute amended charges.
5. Fifth, the parties participate in a case conference: Once the charge certificate is filed, the parties engage in a case conference. This allows the prosecution and defence to discuss the issues in dispute and whether the matter can resolve by plea.
6. Sixth, a case conference certificate is filed: This confirms that the conference has taken place and records the procedural outcome. At that point, the matter is ready to be committed to the higher court.

 

How does the District Court receive the matter?

Once the EAGP steps are complete, the Local Court commits the matter to the District Court in one of two ways.

Committal for sentence

If the accused pleads guilty to the charge or charges that will proceed on indictment, the Local Court commits the matter to the District Court for sentence. The District Court then becomes the sentencing court.

In that situation, the District Court does not conduct a trial. Instead, it receives the matter for sentencing on the offence or offences to which the plea has been entered.

Committal for trial

If the accused does not plead guilty, the Local Court commits the matter to the District Court for trial. The prosecution then files an indictment in the higher court, and the matter proceeds through arraignment, pre-trial case management, and ultimately trial.

Unless there is a judge-alone order, the trial will ordinarily be before a jury.

So, in practical terms, the Local Court functions as the gateway court. It manages the early procedural steps, but the District Court becomes the court that ultimately determines sentence or conducts the trial for indictable matters proceeding on indictment.

 

Why the EAGP process was implemented

The EAGP process was implemented for several reasons.

• It clarifies what charges are actually being pursued

• It creates a structured opportunity for charge negotiations

• It narrows the issues before trial

• It can reduce delay in the criminal justice system

• It allows matters that are going to resolve by plea to be identified earlier

It also has sentencing significance. In appropriate cases, an early plea of guilty may attract a greater utilitarian discount under the Crimes (Sentencing Procedure) Act 1999 (NSW) than a plea entered later in the process.

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Key Takeaway

In short, the difference between summary and indictable offences is not just about seriousness. It shapes the entire procedure, from the court that hears the matter, to the availability of a jury, to the sentence that can lawfully be imposed.

Understanding where a criminal matter sits in the NSW court hierarchy is essential to understanding how the case will unfold. For defendants, complainants and families alike, the distinction between a summary matter, a Table offence, and a strictly indictable matter often explains why one case is finalised quickly in the Local Court while another proceeds through the EAGP process and into the District Court for sentence or trial.

If you or someone you know is involved in a criminal matter, understanding the process early can make a significant difference. Speaking with a criminal defence lawyer can help you navigate each stage with clarity and confidence.

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📌 What is the EAGP process?
The Early Appropriate Guilty Plea (EAGP) process is a structured procedure for indictable matters that helps determine the final charges and whether a case will resolve early or proceed to trial in a higher court.

📌Do all criminal cases go to trial in NSW?
No. Many cases are resolved in the Local Court or by early guilty plea. Only matters that are contested and proceed on indictment go to trial, usually in the District or Supreme Court.