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2.5 - Summary and Indictable Offences

  1. Offences in Victoria are classified as either summary offences or indictable offences.
  2. Offences in the Crimes Act 1958 and the Wrongs Act 1958 are deemed to be indictable, unless the contrary intention appears (Crimes Act 1958 s2B; Wrongs Act 1958 s2A).
  3. Offences in legislation other than the Crimes Act 1958 or the Wrongs Act 1958 that are described as being level 1 – 6 or punishable by level 1 – 6 imprisonment, fine or both are presumed to be indictable offences unless the contrary intention appears. All other offences are presumed to be summary offences, unless the contrary intention appears (Sentencing Act 1991 s112).

    Summary Offences

  4. Charges for summary offences may be heard and determined summarily in accordance with Chapter 3 of the CPA 2009 (CPA 2009 s27). See Chapter 3 - Summary Hearings for further information.
  5. After an accused is committed for trial, the magistrate must transfer any charges for related offences that are summary offences to the trial court unless the accused and the informant agree otherwise. Magistrates must also order the transfer of any charges for summary offences that are commenced later and are related to the indictable offences for which the accused was committed to stand trial (CPA 2009 s145).
  6. A trial court hearing a summary offence must determine the matter in accordance with summary procedure, as far as practicable. The court operates without a jury, using the evidence given during the trial or on the depositions. Further evidence may only be led with the leave of the court. The court may impose any sentence that the Magistrates’ Court could have imposed (CPA 2009 s242, s243).
  7. A trial court may transfer proceedings for related summary offences back to the Magistrates Court if it considers it appropriate to do so (CPA 2009 s242).
  8. A trial court may also hear and determine charges for any other summary offences that are not related summary offences if the accused is before the court for an indictable offence, consents to the court hearing and determining the summary offence and states his or her intention to plead guilty to the summary offence. Such unrelated summary offences are transferred from the Magistrates’ Court to the trial court (CPA 2009 s243).
  9. An application to transfer unrelated summary offences from the Magistrates’ Court to the County Court must be made at least 21 days before the listed date for the plea hearing (County Court Criminal Procedure Rules 2019 r2.11).
  10. The registrar of the Magistrates’ Court must forward the following documents to the higher court when the court orders the transfer of proceedings for an unrelated summary offence:

    (a) the Magistrates' Court case file number;

    (b) the original charge-sheet;

    (c) the address and telephone number of the Court where the proceeding for the summary offence was commenced;

    (d) where the accused has been admitted to bail, the undertaking, and a surety's affidavit of justification or declaration of justification (Magistrates’ Court Criminal Procedure Rules 2019 r91(1).

  11. The registrar must also record the transfer of an unrelated summary offence in the court register (Magistrates’ Court Criminal Procedure Rules 2019 r91(2)).
  12. The court has no power to order the prosecution to commence proceedings for a summary offence. The powers under s242 and s243 may only be used where the summary proceedings have been commenced (see, e.g., Brygel v County Court of Victoria [1998] VSC 99).
  13. If, following the transfer of proceedings from the Magistrates’ Court, the accused does not plead guilty to the unrelated summary offences, then the charges are remitted back to the Magistrates’ Court (CPA 2009 s243).

    Indictable Offences Heard and Determined Summarily

  14. The Magistrates’ Court may hear and determine the following Victorian indictable offences summarily:
  15. CPA 2009 s 28(3) states:

    If an indictable offence referred to in Schedule 2 is qualified by reference to a specified amount or value or a specified kind of property, that qualification is not affected by subsection (1)(b) or (2).

  16. Many property offences listed in Schedule 2 are limited to offences where the value of the property is less than $100,000. The effect of CPA 2009 s 28(3) is that such offences cannot be heard summarily even if they are also punishable by level 5 or level 6 imprisonment. However, this monetary limit does not apply to attempt offences. An attempt offence may be heard and determined summarily either through the combined effect of item 4.28 and s 28(1)(b) (where there is an attempt to commit a substantive offence with a maximum penalty of level 5 or level 6 imprisonment), or directly through s 28(1)(b) itself (where the attempt offence is punishable by level 5 or level 6 imprisonment, per Crimes Act 1958 s 321P) (DPP v Platt & Anor [2020] VSCA 83, [23]-[48]).
  17. Summary hearing of indictable offences can only take place if:
  18. The court must have regard to the following factors when determining whether it is appropriate to hear and determine a charge summarily:
  19. The opinion that a summary hearing is appropriate is not to be formed lightly (DPP v Cowling (1994) 71 A Crim R 198).
  20. While a magistrate may consider any circumstances that may be relevant to deciding whether to hear and determine the charge summarily, there is no general power to obtain additional information about the previous convictions of the accused before deciding whether to grant the application for a summary hearing (Hansford v Judge Neesham, Unreported, VSC, 31 August 1994; Hall v Braybrook (1956) 59 CLR 620).
  21. A decision that summary jurisdiction is appropriate does not need to be reflected in a formal order (Treloar v Richardson [2020] VSCA 216, [41]).
  22. Both the informant and the accused may apply for an indictable offence to be heard and determined summarily. In the absence of an application, the Court may offer a summary hearing to the accused (CPA 2009 s30).
  23. An application for summary hearing must be in writing, using Form 31 of the Magistrates’ Court Criminal Procedure Rules 2019. The application must be filed in court and served on the other party. The Magistrate that grants a summary hearing will also conduct the hearing, if it is practicable to do so (Magistrates’ Court Criminal Procedure Rules 2019 r70; Magistrates’ Court Practice Direction No 3 of 2008).
  24. The registrar must inform the higher courts when the Magistrates’ Court determines that it is not appropriate to hear and determine a charge summarily. This ensures that the higher courts will not transfer a proceeding back to the Magistrates’ Court unless there has been a significant change in the charges or the prosecution’s case (CPA 2009 s168; Magistrates’ Court Criminal Procedure Rules 2019 r90).

    Accused’s Consent to Summary Jurisdiction

  25. The legal practitioner appearing for the accused may, on behalf of the accused, give consent to summary jurisdiction (CPA 2009 s29). Where this occurs, there is no requirement to treat the consent given as provisional until confirmed by the accused, or require that it be given in the presence of the accused (Treloar v Richardson [2020] VSCA 216, [35]-[36]).
  26. If the accused does not consent to a summary hearing, then the matter must proceed in the committal stream and the case must be adjourned for a filing hearing (Guneser v Magistrates’ Court of Victoria [2008] VSC 57; Magistrates’ Court Practice Direction No 3 of 2008).
  27. The consent of the accused to a summary hearing is treated as continuing from when it is first given until the hearing. The accused may change his or her position and seek to withdraw that consent at any time prior to the final hearing (Clayton v Hall [2008] VSC 172).
  28. An accused may only withdraw consent to summary hearing with the leave of the court (Clayton v Hall [2008] VSC 172; Marci v Ryan (1993) 74 A Crim R 504).
  29. The court may grant leave to withdraw consent if that is in the interests of justice. The decision to grant leave is not constrained by any requirement to show exceptional circumstances (Clayton v Hall [2008] VSC 172).
  30. The magistrate who determines whether to grant leave to withdraw consent to summary jurisdiction may be a different magistrate to the one who hears the case. The magistrate hearing the case is bound by the decision of the earlier magistrate (Clayton v Hall [2008] VSC 172).
  31. The magistrate who grants an application for a summary hearing should, as far as practical, continue to hear the case (Magistrates’ Court Practice Direction No 3 of 2008).
  32. The application to withdraw consent should be made on the basis of admissible evidence. A party should not rely on putting matters from the bar table (Clayton v Hall [2008] VSC 172).
  33. The following matters may be relevant in determining whether the interests of justice require a grant of leave to withdraw consent to summary jurisdiction:

    Magistrate Revoking Summary Jurisdiction

  34. Once a magistrate has made an order granting summary jurisdiction, the court cannot later revoke that order and transfer the matter to the committal stream (Williams v Hand & Anor [2014] VSC 527).
  35. Once a Magistrate has made a finding that summary jurisdiction is appropriate, an accused has an accrued right to have the matter determined in the Magistrates’ Court, and the court is obliged to hear the matter as a summary proceeding, subject to the decision being challenged on appeal. It is an abuse of process for the prosecution to file a direct indictment in relation to the same offending in an attempt to force the proceedings into a higher court (Maya v DPP (2019) 60 VR 276).

    Commonwealth Indictable Offences Tried Summarily

  36. Commonwealth indictable offences that are punishable by not more than 10 years’ imprisonment may be tried summarily if the prosecution and the accused both consent (Crimes Act 1914 (Cth) s4J).[2]
  37. The Magistrates’ Court may also exercise summary jurisdiction over Commonwealth indictable offences that are punishable by a fine of not more than 600 penalty units for an individual or 3,000 penalty units for a corporation if the prosecution and the accused both consent. This provision only applies if the offence is not punishable by imprisonment (Crimes Act 1914 (Cth) s4JA).
  38. Finally, a Commonwealth indictable offence is also triable summarily on the request of the prosecutor if the offence relates to property the value of which does not exceed $4,000. The court does not require the consent of the accused in this situation (Crimes Act 1914 (Cth) s4J).

Footnotes:

[1] - There are a wider range of offences that the Children’s Court may hear and determine summarily.

[2] - If a Commonwealth indictable offence specifies that it is triable summarily, then s4J of the Crimes Act 1914 (Cth) does not apply. The circumstances in which such an offence is triable summarily will be specified by the legislation creating the offence.

Last updated: 30 August 2021

See Also

Chapter 2 – Commencement of Proceedings

2.1 - Charge-Sheet and Indictment

2.2 - Duplicity

2.3 - Joinder of Charges

2.4 - Severance of Charges

2.6 - Time Limits

2.7 - Penalty and offence information