The Process of Prosecutions in the Courts of WA



If you have been charged with an offence, whether minor or serious in nature, you should seek the advice of a lawyer, to assist you to understand the prosecution, the court process, the nature of the charge against you, and the various avenues that you may take.

 This article aims to provide a basic understanding of the process and procedure involving criminal prosecutions in Western Australian Courts.


How is a prosecution commenced?

Following being charged the police will require you to attend court. The police can do this in either of the following three ways:

  • By having you enter into a bail undertaking;
  • By issuing you with a summons to attend court; or
  • By issuing you with a court hearing notice.


Bail Undertaking

If you are charged with a serious offence and are granted bail you will be required to enter into a bail undertaking to attend court on a particular date and time.  Upon entering into the bail undertaking you are released from custody and into the community while your matter moves through the justice system. 

Bail can be granted by the police following the charge being laid. However, the police do not always grant bail. If the police refuse you bail, they must place you before the court as soon as practicable and you may then apply to the court for bail.

If bail is refused by a court, you will be remanded in custody until your matter is finalised or until another bail application made to the court is successful.


Court Summons

A court summons is another way for the police to require a person to attend court. The summons is usually accompanied by a prosecution notice and a statement of material facts which outline the allegations of the charge. 

A summons is a legal document which is provided or posted to an accused person and which legally binds that person to attend court on a particular date and time.


Court Hearing Notice

Court Hearing Notice can be provided or posted by the police to an accused after the charge has been laid. The document sets out the date, time and place that the matter is listed in court. 

If an accused is given a Court Hearing Notice, there is no legal obligation on them to appear in court.  An accused who is issued with a court hearing notice can, instead of attending court, decide to enter a plea of guilty or not guilty in writing and post it to the court within a reasonable time before the court date.

If an accused does not to attend court after being issued with a court hearing notice, the magistrate may decide to find them guilty of the offence and proceed to sentence in the accused’s absence. In the event that this occurs the court will post the person a notice of court result.


In which court will my charges be determined? Summary, Indictable and ‘Either Way’ Offences in Western Australia

In Western Australia a criminal charge can be determined and finalised in either of the three following courts:

  • Supreme Court
  • District Court
  • Magistrates Court

How the offence is described in the statute will impact upon whether the charge is be determined on an indictment in the District or Supreme Court or as a summary offence in the Magistrates Court.

All criminal charges commence in the Magistrates Court. There are three types of criminal charges that come before the court:

  1. Simple offences
  2. Indictable Offences
  3. Either way offences


Simple offences

 A criminal charge which is referred to as “an offence” in the relevant section of the statute is a summary or simple offence. Summary offences are dealt with exclusively by the Magistrates Court of Western Australia.

 Examples of summary offences include:


Indictable offences

A criminal charge which is referred to as a ‘crime’ in the relevant section of the statute is an indictable charge. This is a charge which can only be dealt with on an indictment and determined in either the District or Supreme Court.  If the charge is indictable the matter must be committed from the Magistrate Court to the District Court or Supreme Court as the case may be.

Examples of “crimes” that proceed on indictment include:

  • Sexual penetration without consent under section 325 (1) of the Criminal Code;
  • Murder under section 279 of the Criminal Code;
  • Deprivation of liberty under section 333 of the Criminal Code.
  • Grievous Bodily Harm under section 297 of the Criminal Code


‘Either way’ offences

An ‘either way’ offence arises where the relevant statutory provision refers to the offence as a ‘crime’ but also provides for a “summary conviction penalty”. The statutory provision to the offence will, in these circumstances, contain two maximum penalties; one maximum penalty where the matter proceeds on an indictment and another maximum penalty where the matter is dealt with summarily in the Magistrates Court.

For example, s 301 of the Criminal Code provides that a person who unlawfully wounds another is guilty of a crime and carries a maximum indictable penalty of 5 years imprisonment. But this offence also contains a maximum summary conviction penalty of imprisonment for 2 years and a fine of $24,000.00.

An ‘either way’ offence will be dealt with by the Magistrates Court unless an application is made by the prosecution to have the matter determined on an indictment in the District or Supreme Court pursuant section 5(2) of the Criminal Code. Regard is had to the following factors when determining whether a matter should be heard on indictment:

  • How serious the offending is;
  • Whether the accused would be sufficiently punished if dealt with summarily;
  • Whether a co-accused is to be tried on indictment;
  • Application of division 2A of the Sentencing Act 1995 (WA);
  • Whether the matter is part of a course of conduct of the accused; and
  • The interests of justice.

Examples of ‘either way’ offences include:

  • Fraud under section 409 of the Criminal Code;
  • Possessing stolen or unlawful property under section 417(1) of the Criminal Code;
  • Being armed in a way that may cause fear under section 68 of the Criminal Code;
  • Indecent assault under section 323 of the Criminal Code; and
  • Criminal Damage under section 202 of the Criminal Code.



At the first court appearance, the charges against the accused are read out by the Magistrate. If the accused has not already received them the Statement of Material Facts and prosecution notices should be provided by the prosecution. These documents specify the charge that the accused is facing and the factual allegations of the offence.

The accused person will have the opportunity to plead guilty or not guilty, however, the plea is not required to be entered at the first hearing and more often than not an adjournment of the matter is granted to the accused to enable them to obtain legal advice, .

It is strongly recommended that you seek legal advice from an experienced criminal lawyer before entering a plea to any criminal charge - For more detailed information, read our article on things you should know before pleading guilty or not guilty.

If the accused participated in an electronic video record of interview, the accused or their lawyer is entitled to have a copy given to the recorded interview within 14 days of being charged or as soon as practicable.



If a plea of guilty is entered to a summary charge the police will then read out the Statement of Material Facts in open court. The Magistrate will then either sentence the accused or adjourn the matter to another date for sentencing.

If a person pleads not guilty to a summary charge, they will proceed to a criminal trial before a Magistrate. The prosecution will then be required to disclose to the accused, or their lawyer, all of the evidence the prosecution intends to rely on. This will include copies of the prosecution witness statements, videotaped interviews (such as Police Interviews) and CCTV footage.

During this process of disclosure of the evidence there are a number of things that may occur which avoids the need for the matter proceeding to a criminal trial including:

  • A change of plea by the accused to guilty because the evidence against them is overwhelming;
  • A downgrade of the charges following plea negotiations between the defence and the prosecution;
  • The police discontinue the charge because the prosecution case lacks strength or because it is in the public interest to do so.



If the accused person pleads guilty to an indictable offence at the first reasonable opportunity their matter is fast tracked to the District or Supreme Court for sentence. The plea of guilty will result in a significant discount of up to 25%   on the sentence imposed.

If the accused person does not plead guilty then the matter is adjourned to a police committal mention in the Magistrates Court in 12 weeks’ time. In the interim the prosecution is required to serve on the defence all of the evidence that is being relied on, including copies of the witness statements, CCTV footage, forensic materials, and video records of interview. 

After a copy of the evidence has been served on the defence, the matter is adjourned from the police committal mention to a state committal mention hearing. The state committal mention hearing is still in the Magistrates Court but by this time the carriage of the matter has changed hands from the police to the Office of the Director of Public Prosecutions (the ODPP) where a file manager has been allocated to prosecute the matter.

Upon receipt of the file containing the evidence the prosecutor at the ODPP reviews the brief of evidence and makes a decision about whether there is a reasonable prospect of conviction and whether the charge should proceed to the District or Supreme Court.

During this process there are a number of things that may occur which may avoid the need for the matter proceeding to trial:

  • A change of plea by the accused to guilty because the evidence against them is overwhelming;
  • A downgrading or amendment of the charges following plea negotiations between the defence and the prosecution;
  • The ODPP discontinue the charge because the prosecution case lacks strength or because it is in the public interest.

Where the charges are downgraded or amendments are made as a result of negotiations between the ODPP and the defence, the accused person will enter a plea of guilty to the remaining charges which will then either be committed to the District Court or Supreme Court for sentencing, or if the charges can be determined in the Magistrates Court, the matter proceeds to sentence in the Magistrates Court.

If negotiations between the defence and the ODPP reach an impasse and the accused person maintains a plea of not guilty, the matter is then committed on a plea of not guilty to the District or Supreme Court for trial.

Once the matter is committed to the District or Supreme Court it proceeds to a Trial Listing Hearing. Prior to this time the ODPP are required to file an indictment and provide the defence with an updated indexed and paginated brief of evidence.

At the Trial Listing Hearing the ODPP and the defence will indicate to court the estimated length of the trial. The court will also require the parties to advise whether there are any legal matters which require a directions’ hearing for the court’s ruling prior to trial. If not, the matter is then listed for a trial before a judge and jury.


Need Legal Advice?

If you’re looking for an experienced Criminal Lawyer and Barrister operating in Perth or Fremantle who will provide you with expert legal advice, you're in the right place.

Andrew offers a range of criminal law services and he can guide you through your legal matter whilst working towards the best outcome for your case.

Call Now: (08) 9278 2575


This post is informative onl. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.

Contact our lawyers now

At Andrew Williams Criminal Law we're here to help you with the best legal advice.

Testimonials Hear from our valued Clients

Words cannot express my gratitude for Andrew agreeing to take my case on, commit to returning from annual leave early, and the personal support and legal expertise provided in defending the driving charges made against me.

The delays I experienced by the two adjournments, while prolonging my anxiety and reducing my faith that I would receive a favourable outcome, worked very much in my favour but moreover it was the multiple submissions and arguments that Andrew made at law on my behalf that cemented the somewhat miraculous outcome including two spent convictions.

Though I genuinely never for a second doubted Andrew's skills, experience and abilities, my fate felt somewhat pre-determined given the significant impact sustained by the complainant.

Andrew was kind, non judgmental, clearly experienced and committed and he accommodated my anxieties and emotion surrounding the charges laid against me.

Andrew went out of his way to give me the best chance possible for a favourable outcome that, in the end, the Magistrate considered and responded accordingly.

All in all, I could not have dreamt of a better outcome considering the circumstances and I...

Rel M
Rel M

I had Andrew deal with my case recently and couldn't of been happier with the result he got for me. From the start Andrew was quick to reply to any questions and queries I had regarding my matter. He was very professional in my opinion, very easy to talk to and explained things quite well. I felt very comfortable in the courtroom knowing that Andrew wanted to get the best result he could for me, and I would highly recommend Andrew Williams to anyone who needs a criminal lawyer.


Colin W

I was on a very tight rope where, if it balanced the wrong way, it would have totally devastated my life. Andrew was honest through the entire process preparing me for the worst but never let me give up and thankfully with his help got a great outcome that let me move forward with my family. I cant praise Andrew enough and recommend him 100%.


Jason M

I cannot thank Andrew enough for his support and would not hesitate recommending your service to anyone who would need your help. I am eternally grateful to Andrew Williams who kept me informed as and when he had to and had no doubt in his professionalism. Thank you.


Pamela J
Pamela J

Had Andrew defend a reckless driving charge. He gave good solid advice throughout the process and defended me well at the trial. His costs were affordable and he was a great guy in general. The most important thing is we were able to have the charges dismissed via a not guilty verdict. I would recommend him to anyone.


Joly M
Joly M

Andrew represented me recently in a few difficult situations. I found him to be very professional, easily contactable and generally wanting a good outcome for me. I've passed his contact info to friends and if I ever need legal representation again I'll definitely be using his services.


Ryan B
Ryan B

After making several calls to various law firms, I came across Andrew Williams who was quick to respond providing knowledgeable, honest and friendly legal advice. At all times I felt confident in Andrew's ability to defend the charges. The case went to trial with an outcome of not guilty. I was awarded full legal costs. Could not be happier.


Matt K
Matt K

Andrew was fantastic to deal with. His courtroom demeanor and skills were apparent. He was always able to assist with a complex matter across nearly 3 years in rural WA. Would highly recommend his services.


Wesley H
Wesley H

Of my limited experiences in the judicial system, I can’t rate Andrew Williams highly enough. He was fantastic on my day in court and was very straight up during my consultations. He is such an awesome person, and the best professional criminal lawyer I have ever encounter. Need help call Andrew.


Aaron J

Andrew was brilliant with my case and achieved the best outcome. He was very professional and was very impressive in the submissions he presented to the magistrate. Again, I can't thank you enough Andrew.


Danni H

Andrew was very preffesional and welcoming when dealing with my case.

In the court room I felt at ease knowing andrew was representing me.

I would highly reccomend andrew for everyone no matter how big or small the case is!



Thanks a lot for handling my case and getting the pleasant outcome. Since the first time I talked to you I have known that my case was in a capable hands. I am impressed by your knowledge and confidence which gave me confidence. Cheers.


Joe Y

Thank you so much Andrew for grooming me and going over the process over and again. It was a traumatic time for me and you kept me focused. I really appreciate your guidance and we came out with the best result.

I wouldn't of been able to hold up as I did if not for your valued support.

Sincerely, Kyley.


Kyley S

Andrew was very approachable, knowledgeable, professional and focused on the best outcome. I would always recommend him.


Kieran C

My personal experience with Andrew Williams was a pleasant one from day one. In the midst of a police raid and the inability to find legal representation I considered myself done for when Andrew took the time to call me back after I contacted his office (during which time he was in trial). Upon soliciting some legal advice, Andrew was straight with me and I made an appointment with him in which he clearly explained the seriousness of my case. After some time, when the matter was moved to the District Courts I was well aware that I would likely be looking at some jail time; the nature of the legal systems and the way in which bureaucracy works is an extremely draining and mentally exhausting process. However, Andrew kept me well informed at every step of the way and promptly wrote to prosecution at critical points outlining my circumstances.

Moving forward, on the sentence hearing day, a pivotal point of my life occured when I was given no immediate imprisonement and was offered an opportunity before the Judge, being legally represented by Andrew. At no one point did I feel like I was being fooled or not taken care of, Andrew Williams was honest and professional, however harsh and difficult it was to accept my circumstances at times. In ...

Franciosco R

I was charged with the offence of aggravated common assault. I engaged Andrew Williams to act for me.

From the first time I met Andrew I knew that I was in the right hands. His level of professionalism both in and out of the court room was very impressive. Following a two day trial in the Perth Magistrates Court, I was found not guilty.

Andrew Williams assisted me through a very stressful period and I was extremely happy with the outcome. I would certainly recommend Andrew Williams to anybody that found themselves on the wrong side of the law.


Kyran H

My wife and I were so glad that we chose Andrew Williams to handle our sons Reckless Driving charge. What a relief to know we have people like him around to help.

Besides a failure to indicate and cutting the corner of a very sharp S bend in the road all other allegations by Police were not substantiated. After using a previous Law firm that basically told us that it was the 2 Police Officers word against our son and that we were probably better to take the charge of Dangerous Driving that had been offered by Police for a plea of guilty. $2500 later we decided to find someone else that at least believed our sons version of events.

Well, Andrew was that person; he understood exactly what was going on. He advised us of all avenues available to us and recommended the assistance of a very professional crash expert who provided quality photographs and measurements of the area involved.

Well if not for the professional and well thought out approach that Andrew used in this instance our son would have been unfairly charged with reckless driving for a very minor traffic offence. All costs were awarded to us by the Court and all I can say is...

George M

I have nothing but good things to say about Andrew and his law services. He helped me more than I could possibly ask for during a difficult time facing the court. He was very efficient and precise and always happy to help and answer questions even last minute and after hours.

I believe he charges a very fair price considering the amount of work he put in for me to achieve the best possible result in court and keeping me updated regularly through the whole process.

Without a doubt I will be recommending Andrew to all of my friends for future reference.


Trent W

I trusted that Andrew was the person to defend my case in our initial contact on the phone. He was very confident in his approach, from the first point of contact to the court room. I believe this must be from years of experience. Another added bonus for Andrew is that he is very honest and fair. He tells you like it is in the book of law and does not appear manipulative. His communication skills helped me help him to form a best defensive argument for my case. In other words, he made me comfortable to open up to him. In the end, he was able to convince the judge to let me off with only warning for providing misleading information to the police officer, which can be recorded as a criminal record against your name for 10 years.


Abraham A

Unhappy with my then representation, I went searching for a new criminal lawyer. Andrew responded quickly and professionally to my enquiry. It was quickly apparent during the first meeting that Andrew was knowledgeable, honest and was committed to getting us the best possible outcome. Andrew looked at all avenues available to me in a Magistrates Court matter. He negotiated on my behalf with the prosecution, attended 3 court hearings and defended my plea at a sentencing hearing. Andrew presented strong arguments in my defense and I was very pleased with a successful outcome. Andrew was also transparent and reasonable with his capped fee costing structure.


Timothy R

After being charged with Common Assault of a minor I made a sensible decision not to use the local Kununurra law firm. I engaged Andrew Williams to assist me with resolving this matter (to the point of me being awarded costs). Despite being 4000km away I never had any issues with Andrew's commitment to my case. He promptly returned all calls and demanded I do likewise when important information needed to be exchanged. I found him to be an intelligent, straight-talking and knowledgeable legal counsel. I have no hesitation in recommending this likeable and professional lawyer to those that require legal representation. Especially those that reside in regional or remote areas where there is no choice.


David C

Andrew Williams is a criminal laywer of much dedication I will never have the words of gratitude and admiration for his honesty and integrity I would highly recommend him to anyone who may require his services in the future


Helen M

I just wanted to take my time to explain my experience with Andrew Williams. I had an incident that could have really affected my future. As anyone does I called around all the lawyers in Perth and just not any lawyer but the ones who are highly respected amongst other lawyers and get the results. I have a friend who works in the industry and she recommended Andrew. She said she always sees Andrew in the paper with amazing outcomes to cases that he gets for his clients I first called his office and left a message with the receptionist. At the time he was on leave and it was his wife birthday. He promised her he wouldn't be bothered with work (this was at christmas time as well) he made the effort and called me to see if I was okay and how everything was. From that moment on I knew I had found my criminal lawyer. When you are going to court you want someone who is going to care about you and go the extra mile and not just pay you off. From the whole experience he was straight with me and very honest. My case was not an easy one and it could have been a very bad outcome. Andrew went out of his way to get me what I wanted. Throughout the whole process I felt like I was dealing with a friend. He was very professional and got the outcome I wanted. I really couldn't ...

Phillip C

Very happy with my representation and fair fees by Andrew, I highly recommend him.


Damian A

I found dealing with Andrew Williams Law Firms to be quite pleasant and professional. I have nothing but utmost regard for this firm and would recommend anyone who needs a good criminal lawyer.


Andrew H

If you want to get the best lawyer money can buy and get results? Look no further than Andrew Williams and get him in your corner. Not only is he a great guy I found his legal services very professional and knowledgeable and his attention to detail was faultless. This was a very tumultuous time in my life I was facing two criminal charges and my anxiety and stress levels were through the roof, but thanks to Andrew's cool calm and confident demeanor he was able to walk me through it and keep me focused every step of the way. I was acquitted in both cases thanks to Andrew. I would like to take this opportunity to thank you again Andrew you did a fantastic job. My advice to anyone facing Criminal charges would be to phone Andrew as soon as possible.


Dan G

Go to top