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What is the difference between summary and indictable offences?

Criminal charges are generally grouped into two categories known as summary offences or indictable offences – the categories based on the seriousness of the offending. Criminal proceedings and what happens after an accused person is charged depends on the category that the offending falls into.

What is a summary offence?

Summary offences are generally less serious offences and can only be heard at the Magistrates’ Court. Such offences cannot be heard before a jury. They include petty crime, disorderly behaviour, some assault offences, willful damage to property and road traffic offences. Road traffic offences include drinking driving, careless driving, speeding, unlicensed driving and hoon offences.

Summary offences are usually resolved much quicker than more serious indictable offences. Summary offences carry a maximum penalty of 2 years’ imprisonment for a single offence, 5 years’ imprisonment for multiple offences or a fine not exceeding 240 penalty units. A majority of the summary offences are founds in the Summary Offences Act 1966  and the Road Safety Act 1986.

The Prosecutor normally has a time limit of 12 months from the date of the alleged offence to initiate court proceedings. The summary proceedings stream of the Magistrates’ Court includes numerous hearings and events before the matter is resolved. These include:

Summary case conference

Section 54 of the Criminal Procedure Act 2009 defines a summary case conference as a conference between the prosecution and the accused person (or their legal representative) for the purpose of managing the progression of the case.

Summary case conferences are only applicable to summary offences. They tend to occur prior to the initial mention hearing and provide an opportunity to negotiate with the prosecution. An experienced criminal lawyer should be engaged to assist with the negotiation and potentially resolve the matter at this early stage of the proceedings.

Prior to the summary case conference your Melbourne criminal lawyer should have read the brief of evidence, assessed the record of interview and determined the strengths and weaknesses of your case.

At the summary case conference the prosecution may decide to withdraw some of the charges. Sometimes the informants approval may be required prior to withdrawal. In exceptional circumstances, the summary case conference Prosecutor may require further investigation to occur or need to engage with other parties before the withdrawal of the charges are put in place.

Mention hearing

This is the initial (first) hearing of the matter. If the alleged offender decides to plead guilty, the matter can be heard and determined at this hearing. If the alleged offender decided to plead not guilty, the matter will be adjourned to a contest mention hearing or a contest hearing. The court may also provide further directions on the matter as it deems appropriate.

Contest mention

At the contest hearing the court will determine if the matter can be resolved by either:

  1. The Prosecutor withdrawing the charge or charges in dispute; and
  2. The Prosecutor and the accused person narrowing the issues in dispute; and
  3. The accused person agreeing to plead guilty to the agreed charges.

If the matter is not resolved at the contest mention the court will list the matter for a final contest hearing. The parties may be asked to provide an estimate on the amount of time required for the matter to be heard with the number of witnesses to be called up at the final contest hearing. The court may again provide further directions on the running of the contest hearing.

Contest hearing

The contest hearing (final hearing) will take place if the accused pleads not guilty to the alleged offences. Both the Prosecutor, accused and their criminal lawyers will present their case in court. Witnesses can be called to give evidence and be cross-examined. The court will hear all parties and access the evidence before making a final determination on the matter.

Ex-parte hearing

If the accused person does not attend court on the specified court date, the court may hear the matter in the persons absence.

If the court does not consider it appropriate to hear the matter in the absence of the accused person, the court may decide to adjourn the matter to a further initial mention or alternatively issue a warrant for the arrest of the person in order for the person to be brought before the court.

What is an indictable offence?

Indictable offences are more serious offences that carry a maximum penalty of more than 2 years imprisonment or a fine more than 240 penalty units. They include offences such as aggravated burglary, indecent assault, drug trafficking offences, murder, manslaughter and fire arm offences.

If you have been charged with an indictable offence you must attend court for your hearings. The initial hearing is called a committal hearing and is heard at the Magistrates’ Court. At the end of the committal process a decision will be made as to whether the case will be heard at the Magistrates’ Court or be forwarded to the higher courts.

The indicatable proceedings stream of the Magistrates’ Court includes numerous hearings and events before the matter is resolved. These include:

Filing hearing

This is the initial hearing in the committal process and occurs immediately after the accused person is charged. The court sets a time table with certain milestones. This includes dates for filing documents and determining the committal mention date.

Committal mentions and committal hearings

Committal mentions and committal hearings are the remaining 2 stages of the committal process. These stages of the process will be discussed in detail in a separate post.

When can an indictable offence be heard summarily?

Section 28 of the Criminal Procedure Act 2009 provides the mechanism for indictable offences to be dealt with summarily through the Magistrate Court’s jurisdiction.

Indictable offences that have a maximum penalty of 10 years imprisonment or less can be listed at the Magistrates’ Court with the consent of the accused person and the consideration of the Magistrates’ Court. Indictable criminal offences that have maximum penalties higher than 10 years can also be dealt with summarily if the charges appear in schedule 2 of the Criminal Procedure Act 2009.

Section 29 of the Criminal Procedure Act 2009 provides in detail the items court will take into consideration when determine whether it is appropriate for the charges to be determined summarily.

If the matter ends up at the County or Supreme Court, you have the right to have the matter heard before a jury. In most circumstances it is advisable that you consent to the summary jurisdiction of the Magistrates’ Court.

A matter dealt with summarily is usually concluded much quicker, is less costly and can be appealed to a higher court. Consenting to the summary jurisdiction is something you will need to discuss in detail with your criminal defence lawyer.

Need legal advice now?

Being charged with a criminal offence, whether summary or indictable, and pleading guilty can have serious implications on your life. A criminal record and being found guilty can have detrimental repercussions for you.

If you have been charged with any sort of offence, it is always advisable to seek advice from criminal defence lawyers at the earliest opportunity. Contact us on 03 8590 8390 for a 20 minute free consultation with one of our experienced Melbourne criminal lawyers.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

Last updated: 5 September 2022 Article by: Halil Gokler

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