Summary Offences in the Australian Capital Territory (ACT)

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The only offences that can be heard summarily are the Summary offences. Section 190 of the Legislation Act 2001 (ACT) defines all offences that the Magistrate Court can hear summarily.

Summary offences are disclosed on a Nationally Coordinated Criminal History Check.

What are Summary offences?

When a person is charged to Court for an offence, the charge can be treated summarily or on indictments.

Offences that are handled summarily;

1. Attract lesser penalties compared to indictable trials;
2. It is usually a Magistrate Court (Children’s Court for juvenile matters) that handles them,
3. They are offences of simple and less serious violations.

Generally, a Summary offence cannot attract a penalty term higher than two years imprisonment. It does not matter whether it is;

• An original summary offence as stipulated, or
• An indictable offence tried summarily.

Some examples of a Summary offence under the Crimes Act 1900 (ACT) include (but are not limited to);

• Food and Drink spiking (s. 28AA),
• Common Assault (s. 26),
• Defacing premises (s. 119),
• Displaying false signals (s. 147),
• Affray offences (s. 35A)
• Other acts of Public disturbances,
• Disturbing legal gatherings.

However, a summary hearing does not water down the effect such an offence may have. For example, if the Court records a hearing against the individual, it will appear in their criminal records and hence their Nationally Coordinated Criminal History Check.

Which Court hears summary offences?

The Magistrate hears all summary matters/charges before the Court. And it includes all indictable offences it decides should be heard summarily.

If the Magistrate finds a person guilty of an indictable offence, it can issue penalties of up to 2 years imprisonment.

The Supreme Court can also hear a summary offence if it forms part of the sequence of an indictable matter. However, such violation will be treated as when a Magistrate handles such issues.

What are the limitations for a Summary offence?

Limitation periods are the time frame from when an offence happens to when the prosecutor can charge it before a court. Summary offences across Australia have various limitation periods depending on how long their laws think an offence will still be “relevant”.

Following section 192 of the Legislation Act 2001, prosecution for an ACT offence can begin at any time. For summary offences, it should not be later than;

• One year after the violation occurred, or
• Any other stipulated period the ACT law provides.

Can a person be punished summarily under various laws?

Sometimes, an offence can contradict two or more legislations. In such cases, the person is convicted under any legislation but cannot be punished more than once.

Also, if the offence;

• Faults the laws of the ACT and
• Another State/Territory or direction of another jurisdiction, and
• The person has already been sentenced for the offence in another jurisdiction,

The person cannot be punished for the same offence under ACT laws.

The Magistrate jurisdiction in a Committal proceeding for an indictable offence

Before any indictable matter proceeds to the Supreme Court, a Magistrate Court must assess the charges. Section 90 of the Magistrates Court Act 1930 (ACT) describes all the procedures for a committal proceeding.

If the (court) Magistrate is satisfied that the case has sufficient evidence for an indictment proceeding, they will transfer the matter to the Supreme Court.

The Australian Capital Territory, unlike other states, has no intermediary courts. It has only the Magistrate Court (and those similar) and the Supreme Court. Therefore, matters that are not eligible for a Magistrate jurisdiction are transferred to the Supreme Court.

Indictable offences heard summarily

Not all indictable offences are taken to the Supreme Court. Section 108A of the Magistrates Court Act 1930 allows certain indictable violations to be handled summarily. A Magistrate can hear an indictable offence if;

• There is a charge of an indictable offence against a person, and
• The Court considers a summary hearing appropriate for the case.
• Both parties agree to hear the matter in the Magistrate Court

The offence is punishable with imprisonment term longer than two years, but less than five years

It may include;

• Stealing offences,
• Fraud offences,
• Acts of indecency without the aggravation

What is the proceeding for hearing a Summary offence?

Summary trials are usually finalised faster than indictable trials. However, this does not translate to the leniency in the procedures. It only means the summary trials are less complex than an indictable trial.

1. Charge Application

The Police or a victim's legal representative may apply to the Court to charge a person for an offence. The charge application must contain information on the offence, including possible evidence and instances.

2. Summons and Warrants

After the Court receives the application, it will issue a summons to the accused person. However, if the accused is already in custody, they will appear in Court on the hearing.

Also, depending on the criminal records or circumstances, the Magistrate can issue a warrant to arrest such a person. And throughout the proceedings, the person will remain in the custody of the Police. The Magistrate will issue an arrest warrant if the defendant refuses to honour the court summons.

The Magistrate can also grant the defendant bail on certain conditions - Bail Act 1992 (ACT). And the chief of them is that they appear in Court on the specified days.

3. Statement of Fact

At Court, the Court will provide the defendant with a Statement of Fact. It includes all the vital evidence and charges the Police or the accuser will prove the case. The defendant must understand the details of this document before entering a plea.

If the defendant pleads guilty to the case, the Court can issue sentencing immediately. The Court will only issue sentencing where it is sure such punishment is appropriate for the offence.

4. Case Management Hearing

However, where the accused pleads "not guilty", the Court will enter a Case management hearing. It is a meeting between both parties to agree on conflicting aspects of the case before the hearing date. It also allows all parties to change their stance heading to the final hearing.

5. Final Hearing

At the final hearing, the Magistrate will issue sentencing per the Crimes (Sentencing) Act 2005 (ACT).

6. Where it is an indictable offence

However, if the matter is strictly on indictment, the Magistrate will transfer it to the Supreme Court.

Do summary offences show up on a Nationally Coordinated Criminal History Check?

Summary offences are disclosed on nationally coordinated criminal history checks (NCCHC).

Individuals can obtain their national police check online via the Australian National Character Check - ANCC® website.

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