Most assault charges in Queensland are dealt with by a magistrate in the Magistrates Court, without a jury.

That is the plain answer, and it is usually the answer people want. What almost nobody knows is that for a lot of these charges it is not automatic. Someone chooses, and depending on the offence that someone is either the prosecution or you.

It is one of the more consequential decisions in a criminal matter and it is made early, often before the person has understood what is being decided.

Three different situations, and only one of them is yours to control

Some indictable offences can be dealt with by a magistrate instead of going to a judge and jury. Legal Aid Queensland describes two separate routes for that.

For one group of offences, the matter must be dealt with summarily if the prosecution elects to have it dealt with that way. That choice belongs to the prosecution, not to you.

For another group, the matter must be dealt with summarily unless you elect to have a jury trial. That choice is yours.

And some offences are not in either group and go up regardless.

Which of those three describes your charge depends on the exact offence you have been charged with. That is a specific answer for a specific charge, and it is one of the first things worth pinning down, because everything below turns on it.

Why staying in the Magistrates Court usually matters

There is a hard ceiling on what a magistrate can impose.

The Queensland Sentencing Advisory Council puts the magistrate's ceiling at three years, whatever the section's own maximum says. So an offence that carries seven years or ten years on paper cannot produce more than three if a magistrate is the one dealing with it.

That is not a technicality. It is the single biggest practical consequence of which court you end up in, and it is the reason the election question deserves real thought rather than a shrug in a corridor.

The magistrate can send it up anyway

Even where a matter could be dealt with summarily, it does not always stay there.

Legal Aid Queensland describes the position as a Magistrates Court having to abstain from dealing with an indictable offence summarily where it is satisfied that the defendant, if convicted, may not be adequately punished on summary conviction.

In plain terms, if a magistrate looks at what is alleged and forms the view that three years would not be enough, they must send it upstairs. That decision is not yours and it is not the prosecution's.

So the seriousness of what is actually alleged, not just the name of the charge, feeds into where you end up.

What you are actually weighing if the choice is yours

Where you have the right to elect a jury trial, this is not a decision to make on instinct or on how the process is portrayed on television.

A jury trial is a different tribunal. Twelve members of the public decide the facts and a judge presides. Some cases genuinely suit that, particularly where the account depends on how ordinary people read a situation.

It takes considerably longer. A matter that would be finished in the Magistrates Court runs for a great deal longer once it goes up, and the whole time you are living with a charge over you, possibly with bail conditions.

It costs more. Substantially.

And the sentencing exposure changes. The three year ceiling belongs to the magistrate. It does not follow you upstairs.

Set against that, there are matters where the material genuinely warrants a jury and where electing is the right call. Nobody can tell you which category yours is from the outside, and nobody can tell you how either route would end. What can be done is a proper look at the evidence before the decision is made rather than after.

Pin down the charge before anything else

People say "I got done for assault" when the charge sheet says something more specific, and the specific thing is what determines all of this.

Common assault, assault occasioning bodily harm, assault occasioning bodily harm while armed or in company, serious assault, serious assault with a circumstance of aggravation. Those are different offences with different maximums and different rules about where they are heard. Our page on assault and violence sets out how they differ.

Get the QP9, which is the police version of events, and read what has actually been laid. It is a short document and it answers more questions than any article can.

The timing problem

The election question tends to arrive early, at a stage when you have seen very little of the evidence. That is uncomfortable and it is normal.

It is also the reason first mentions are commonly adjourned. Asking for time to get advice before a decision like this is an ordinary request, not an imposition, and it is a great deal easier than trying to unwind a decision afterwards.

If you have a mention coming up at Cairns Magistrates Court

The question of which court hears your matter sounds procedural and is not. It sets the ceiling on what can happen to you, it sets how long you will be living with it, and for some charges the decision belongs to you.

We act in criminal law matters in Cairns and across Far North Queensland. If you are not sure which route your charge takes or whether an election is yours to make, that is worth settling before your court date.

If you have an assault charge in Cairns and a decision about which court hears it is coming up, speak with us before you make it.