What is a summary offence?
A summary offence is any offence that is not an indictable offence. Summary offences are less serious than indictable offences. In Victoria, like the rest of Australia, there are only two categories of offences, so if you are facing a criminal charge in Australia, it will either be an summary offence or an indictable offence.
What is the meaning of a Summary Offence
The meaning of a summary offence in Victoria is defined in the Sentencing Act at section 112 and classifies a summary offence as any offence that is capable of attracting a level 7 to level 9 imprisonment as a maximum or a level 7 to 12 maximum fine as a maximum, unless the contrary intention appears in the actual charge itself.
General rule when trying to work out if a charge is a Summary Offence
If an offence that has a maximum penalty of 2 years imprisonment or under and a fine not exceeding 240 penalty units, unless otherwise prescribed in the relevant legislation, the charge is a summary offence.
Examples of Summary Offences
There are thousands of summary offences in Victoria. It is impossible to list them all. For a list of all Victoria charges follow the link and you can apply the above rule or search in the search bar for the type of charge that you are facing.
Common charges in Victoria that are summary offences are; Drink driving, Drug drug driving, careless driving, dangerous driving, failing to nominate driver and all infringements. Most driving matters in Victoria are summary offences, unless the charge involves an injury to another person, these are serious driving offences.
Common charges in Victoria that are summary offences that dont relate to driving are found in the Summary Offences Act 1966. If you are facing a charge under this act, then it is a summary offence. Common charges that people often face in relation to this act are, assault police, making false report to police, obscene, indecent and threatening behaviour in public and unlawful assault.
If you are facing a charge that is in the Crimes Act 1958, then it is highly likely you are facing an indictable charge.
Can a Summary Offence be heard by a Jury?
No a summary offence cannot be heard before a Jury. If you are facing a summary offence like drink driving or dangerous driving, the matter will start and finish in the Magistrates Court of Victoria and be one Magistrate who will make a decision about your innocence or guilt.
However it should be noted, there is provision under the Criminal Procedure Act 2009 (CPA) sections 242 and 243 for summary offences to be heard with other indictable offences in the County Court and Supreme Court in certain circumstances.
What is the difference between the Summary Jurisdiction and a Summary Offence?
The Summary jurisdiction refers to procedure. A summary offence refers to a category of offence or an offence type. If something is in the summary jurisdiction, then it means it will start and finish in the Magistrates Court and is often referred to as the summary stream or when referring to the charge, a charge that can be tried summarily.
This is where it gets confusing, because although all summary offences by themselves must be dealt with in the summary jurisdiction, there are indictable offences that can be heard in the summary jurisdiction. These types of indictable offences are called indictable offences triable summarily. Anyone charged with an indictable offence that is triable summarily, can opt to have their matter heard by a jury.
What is the difference between being Summonsed and being charged with a Summary Offence?
When someone is summonsed to go to court, in relation to criminal charges, they are being served with paper work that will have a charge sheet and a court date. A person can be summonsed to go to court regarding a summary offence or an indictable offence. The category of offence does not determine how a person will be served with paperwork to attend court although the general rule of thumb is that the more serous the offence the less likely a person will be summonsed to attend court, but this is not always the case. The the other ways a person can be required to attend court is by being bailed to attend court, or by being remanded in custody and then brought to court.
What are the time limits for a summary offence?
In relation to a criminal or traffic charge that are summary offences, police have 12 months from the date of the offence to lay the charge. The relevant section here is s7 of the Criminal Procedure Act 2009. The other relevant legislation is the Interpretation of Legislation Act 1984 at section 44 which defines how time periods are to be interpreted in legislation. Subsection (2) states that where time is expressed in legislation to end on a particular day, that day shall be included in the period.
It is important to understand this, as police often have reminders set to avoid missing filing dates on charges and leave it to the last second. Nevertheless, we have had numerous summary offence charges withdrawn because police have not complied with this section. It highlights the importance of engaging experienced criminal defence lawyers, many lawyers dont understand the difference between indictable and summary offences or the time frames that apply.
In relation to all indictable offences, no time limits apply. We have seen charges laid as long as 70 years after the offence date. This is often relevant in relation to dated sexual offending.
What is a Misdemeanour or Felony in Australia?
The term Misdemeanour and Felony is predominantly a term used in America to distinguish between offences. It is similar to the distinction in Australia between Summary and Indictable offences. It was once used in Australia but has been abolished by virtue of the section 580E of The Crimes Act 1900 in relation to commonwealth offending and by virtue of s322B of the Crimes Act 1958(Vic) for State offending in Victoria.
How are Summary offences treated differently to Indictable offences
The biggest differences are in relation to
- The time police have to file a charge as discussed above;
- How police can obtain admissions and
- The powers that police have to arrest a citizen
Admission and Summary Offences
In relation to summary offences, admissions do not have to be recorded to be admitted into evidence.
Further to that the test when a caution against self-incrimination must be provided differs depending on whether a power of arrest exists in relation to the summary offence.
Powers of arrest regarding a summary offence
If a summary offence has a power of arrest attached then:
- Section 464A(3) and 464C of the Crimes Act apply and a caution must be provided in circumstances where a suspect is in custody.
- Section 464(1) of the Crimes Act prescribes when a suspect is considered to be in custody.
- Section 458(1) of the Crimes Act prescribes that a suspect may be arrested for a number of prescribed purposes regardless of whether the alleged offence is a summary or indictable charge.
In relation to some summary offences where a power of arrest does not exist, police still should provide a caution against self-incrimination.
- Section 139(2) of the Evidence Act 2008 prescribes that a caution should be provided when an investigating officer believes that an offence has been disclosed.
- Section 138(1) prescribes that failure to provide a caution in these circumstances is not fatal to the admissibility of any admission. It simply creates a presumption against admissibility that can be rebutted by the prosecution.
- Interestingly, section 464C(4) of the Crimes Act prescribes that a drink driving offence under section 49(1) of the Road Safety Act 1986 is not covered under the Crimes Act requirement to caution but does not preclude the operation of section 139 of the Evidence Act.
Summary offences can only be heard in the Magistrates’ Court and so cannot be heard before a jury. However, there is provision under the Criminal Procedure Act 2009 (CPA) sections 242 and 243 for summary offences to be heard with other indictable offences in the County Court and Supreme Court in certain circumstances.
In short, although summary offences are less serious charges than indictable charges, pleading guilty can still have serious ramifications for your future, your finances and your criminal record. If you would like to avoid a criminal record follow the link.
If you have been charged with a summary offence that is going to Court it is always advisable to seek advice from an experienced criminal lawyer. If you have been charged, call our office and have a chat to one of our experienced lawyers today.