Criminal offences in Victoria are divided into three categories:
1 indictable offences;
2 indictable offences triable summarily; and
3 summary offences.
Any offence that was known to the common law or expressed by statute to be a felony is now referred to as an indictable offence.
A further category is serious indictable offences, which are indictable offences punishable on first conviction with imprisonment for life or for a term of five years or more (s 325(6) Crimes Act 1958 (Vic) (“Crimes Act (Vic)”)).
Whether an offence is classified as indictable or summary determines in which court, in what manner, and after what pre-trial procedures, the offence will be tried.
Where an offence is described as a summary offence, or if the Act does not say what type of offence it is, then it is to be prosecuted before a Magistrates’ Court as a summary offence (s 52 Interpretation of Legislation Act 1984 (Vic)).
“Indictable offences” are serious crimes that are usually triable only by judge and jury, and will therefore be heard in either the County or Supreme Court. They may carry serious consequences for the convicted offender. Most of the matters tried in this manner are those crimes specified as such in the Crimes Act (Vic), although there are many other Victorian and Commonwealth Acts that create indictable offences. There are also a number of common law (i.e. not set out in a statute) indictable offences.
These offences, although considered serious and therefore classified as indictable offences, may, with the consent of the accused, be heard by a magistrate.
Section 28 of the CP Act allows for the hearing in the Magistrates’ Court of any matter punishable by a maximum term of imprisonment of 10 years (level 5 imprisonment) or less, or a fine of $120,000 (level 5 fine) or less.
Other indictable offences with maximum penalties higher than those referred to in section 28 that can still be heard in the Magistrates’ Court are listed in schedule 2 of the CP Act.
“Summary offences” are almost always heard in the Magistrates’ Court. The summary procedure is found in chapter 3 of the CP Act (ss 27–94). The only exception to this is where the accused person is before the County or Supreme Court in respect of an indictable offence; that court may also determine the summary offence if the person consents and pleads guilty to it (s 243 CP Act).
Section 25(1) of the Magistrates’ Court Act 1989 (Vic) (“MC Act”) establishes the jurisdiction of the Magistrates’ Court in relation to summary offences.
However, many summary offences (in particular, traffic offences) are dealt with without going to court, through the infringement notice system (see Fines and infringements, and “Infringement notices” in Driving offences). Under this system, an infringement penalty will be registered unless the person indicates they want the offence heard by a court, in which case normal court procedures apply.
The hearing of summary offences can proceed in the absence of the person charged. However, a warrant is issued for their arrest if a person is on bail and/or fails to appear at the hearing of an indictable offence.
Charges for summary offences must be laid within 12 months of the alleged offence being committed, but charges for indictable offences can be laid at any time.