What is a Summary Jurisdiction Application?
A Summary jurisdiction application become relevant in two scenarios: when matters are listed in the committal stream but are capable of being heard in the summary stream or when very serious matters are listed in the summary stream but the prosecution or the Magistrate agree that the matter should be heard in the indictable/committal stream.
The first scenario relates to the informant (police officer that initiates the charges) listing the charges as a filing hearing, but per either schedule 2 of the Criminal Procedure Act (CPA) or section 28 of the CPA, the charges are also capable being heard in the summary stream. In this situation, if instructed to do so, the defence can make an application to the Court called a summary jurisdiction application. These applications usually occur in the committal mention court.
The second scenario relates to charges listed in the summary jurisdiction whereby the prosecution or Magistrate agree that the charges should join the indictable stream. In these circumstances the same test applies, but it is a prosecution application to uplift or a motion made by the Magistrate. In these circumstances, we are often instructed to resist the matter being raised to the indictable/committal stream.
The relevant section in relation to both scenarios is section 28 of the Criminal Procedure Act (CPA) read in conjunction with section 29, which states that a charge can be heard in the summary jurisdiction if it is listed in schedule 2 of the CPA or is punishable by a term of imprisonment not exceeding a 10-year maximum or 1200 penalty units.
Should my lawyer make a summary jurisdiction application?
There are pros and cons to proceeding in both the summary and indictable stream.
The major pros of a matter being heard in the indictable stream is that a not guilty plea will eventually be decided by a jury. The advantage here is that 12 members of the community must make the decision in unison as opposed to one Judge. It also means all extraneous evidence deemed not admissible by the Judge is never heard by the jury, as opposed to the application to exclude the evidence going before the same person that is adjudicating on the facts.
For these reasons, the accused will often be far better off having a matter decided by a jury as opposed to a single Judge. However, this is not always the case, particularly in relation to highly-publicised cases where there is potential for the jurors to become influenced by facts recklessly reported in the media.
The major con related to a jury trial is that it is very expensive, far more expensive than having a matter heard in the summary jurisdiction. The other con is that, unlike a summary hearing, it is very difficult to appeal a decision that has been decided by a jury. In Victoria, there is currently a right to a De Novo appeal in relation to any matter initially run in the summary jurisdiction. This effectively means that an accused person, if found guilty in the Magistrates’ Court following a hearing of the evidence, has an automatic right to run the matter again in the County Court. It should be noted that De Novo Appeals are to be phased out with the introduction of The Justice Legislation Amendment (Criminal Appeals) Act 2019 which will come into effect on 3 July 2021. Although this act will abolish the right for a De Novo appeal, it will still provide an avenue to have the evidence considered a second time. However, there will not be an automatic right to cross-examine witnesses a second time.
Whether the above considerations apply to your case can only be determined by an experienced criminal lawyer. At Dribbin & Brown Criminal Lawyers we deal with summary jurisdiction applications all the time. For more information on how the above information might apply to you, call our office to make an appointment with one of our criminal lawyers today.
