What are Summary Offences?
In Victoria offences are classified into two categories, summary offences and indictable offences. Summary offences are considered less serious than indictable offences and therefore carry a lower maximum penalty. These offences are heard before a magistrate or judicial registrar sitting in the Magistrates’ Court of Victoria rather than before a judge and jury sitting in the County Court.
What is the meaning of a Summary Offence
- A summary offence is any offence with a maximum penalty of up to 2 years imprisonment and a maximum fine not exceeding 240 penalty units.
- Under section 112 and 109 of the Sentencing Act, a summary is offence is classified as any offence with a maximum penalty that does not exceed a level 7, period of imprisonment or a fine that falls in between a level 7 amount of penalty units.
Summary Offences vs Indictable Offences
The differences between summary offences and an indictable offences are as follows;
- In Victoria, a summary offence carries a maximum penalty not exceeding 2 years imprisonment and a maximum fine not exceeding 240 penalty units, unless otherwise prescribed in the relevant legislation. Charges must be filed within 12 months of the offence date regarding adults and 6 months regarding children. Admissions do not need to be recorded and the powers of arrest differ, some summary offences such as drink driving offences, have no powers of arrest attached. Summary charges can not be decided by a judge and jury.
- In contrast, an indictable offence is any offence where the maximum penalty exceeds 2 years imprisonment or the fine exceeds 240 penalty units. There are no time limits to file charges, admissions must be recorded and all indictable charges have a power of arrest attached. Indictable offences can be heard by a judge and jury but in relation to some indictable offences, they can also be heard by a magistrate.
- See here for more details about how indictable and summary offences can be handled during police investigations. The key distinction is that indictable charges are generally regarded by the courts as more serious than summary charges. However, it is essential to remember that each case depends on its specific facts and circumstances when determining the level of seriousness of any offence.
Examples of Summary Offences
- In Victoria, examples of summary offences can be found in the Summary Offences Act 1966 and the Road Safety Act 1986 and include;
- Obscene, indecent and threatening behaviour in public and unlawful assault, resist arrest, wilful damage, drink driving, drug driving, careless driving, dangerous driving and failing to nominate a driver. Other examples include, contravene family violence order and contravene personal safety intervention order.
- All charges in the Summary Offences Act and the Road Safety Act are examples of summary offences.
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 it will be one magistrate who will make a decision about your innocence or guilt.
- However, it should be noted that there is a 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 limited circumstances.
What is the difference between the Summary Jurisdiction and a Summary Offence?
- The term summary jurisdiction refers to the process and procedure in the Magistrates’ Court, where certain cases are handled from start to finish without the involvement of higher courts. In this jurisdiction cases proceed in what’s often called the summary stream.
- A summary offence is a type or category of offence that must be heard entirely within the Magistrates Court. These offences are less serious and do not involve a jury trial.
- There are however more serious charges known as indictable offences triable summarily that can be handled in the summary jurisdiction. This means that although these offences are indictable offences they are eligible to to be tried in the Magistrates’ Court jurisdiction with the consent of the accused person.
- In relation to indictable offences triable summarily it is not uncommon for a magistrate to request submissions in relation to a summary jurisdiction application.
What is the difference between being Summonsed and being charged with a Summary Offence?
- When a person is summonsed to go to court in relation to criminal charges, they are served with paperwork that includes a charge sheet and a court date. This summons can be issued for both summary and indictable offences.
- Whilst the type of offence does not strictly dictate how a person will be notified to attend court, generally, the more serious the offence, the less likely it is that a person will be summonsed to attend court. However this is not always the case.
- Other ways a person might be directed to attend court are by being granted bail with a condition attached that they must appear, or by being remanded in custody and being brought to court directly by the police officers.
What are the time limits for a summary offence?
- In relation to a criminal or traffic charge that is a summary offence, 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 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.
- The time limits differ for Children Court matters. The police must file a summary offence within 6 months of the date of the offence. The relevant section is s344A of the Children, Youth and Families Act 2005
- A child is considered anyone under the age of 18 as of the date of the alleged offence.
- 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 historical 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 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
- Summary offences generally cannot go before a jury.
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 1958 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.
What is the takeaway if you are facing summary offences in the Magistrates Court?
Although summary offences are less serious 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 a specialist criminal defence lawyer. If you have been charged, call our office and speak to one of our experienced lawyers today.
