Summary Offences

Have you been charged with a summary offence or an offence that is to be heard in the Magistrates’ Court?

If so, you should seek the assistance of a lawyer with experience in the summary jurisdiction (the Magistrates’ Court). We have offices in Frankston, Dandenong, Moorabbin, Ringwood and the CBD and regularly appear at the Magistrates’ Courts in these areas and all areas of Melbourne.

What is a summary offence?

A summary offence is an offence that has a maximum penalty of 2 years gaol or a fine not exceeding 240 penalty units unless otherwise prescribed in the relevant legislation.

A large number of summary offences are found in the Summary Offences Act 1966 and the Road Safety Act 1986.

As opposed to indictable offences, which are usually heard in the County and Supreme Courts (although some can be heard in the Magistrates’ Court), summary offences are treated differently under the law, particularly in relation to admissions and powers of arrest.

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.

If a summary offence has a power of arrest attached then:

  • Section 464A(3) and 464C of the Crimes Act applies 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) 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 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.