Chapter 3
Summary Procedure
,60 | Criminal Procedure Act 2009 – Legislative Guide
Chapter 3 – Summary
Procedure
Chapter Overview The note following subclause 6(1) of Schedule 4 refers
to section 5 of the Act which sets out how a criminal
Chapter 3 regulates procedures for all summary hearings proceeding is commenced (see discussion of section 5).
under the following Parts:
Part 3.1 – When a Summary Hearing May Be Held Legislative History
Part 3.2 – Procedure Before a Summary Hearing Chapter 3 is based on provisions from the Magistrates’
Court Act 1989.
Part 3.3 – Summary Hearing
Part 3.4 – Rehearing Discussion
Important terms that are used in this Chapter, which are Summary procedure is an important and discrete part
defined in section 3 of the Act, include mention hearing, of criminal procedure. Previously, parts of summary
contest mention hearing, full brief, preliminary brief, proceedings and committal proceedings were dealt with
summary hearing, and summary case conference. in the same part of the Magistrates’ Court Act 1989 and
then in different Schedules to that Act. This Act takes
General definitions contained in section 3 of the Act, a different approach. Summary procedure is dealt with
which are relevant to summary procedure include in one Chapter rather than in different locations within
appropriate registrar, informant and return date. the Act. Committals are then dealt with in a separate
It is also important to note that Chapter 8 of the Act Chapter (see Chapter 4) because, although committal
contains general provisions applying to all criminal proceedings are also conducted in the Magistrates’
proceedings. See for example: Court, they are a separate process.
• s ections 328–330, which deal with when parties are Provisions relating to commencing proceedings have
required to appear and attend at hearings, including also been given their own chapter (discussed above
who can appear on a party’s behalf in Chapter 2) as they apply to both summary and
committal proceedings.
• section 331, which sets out a broad power of adjournment
As is the case in many parts of the Act, Chapter 3
• s ection 334, for procedures relevant to charges against adopts consistent language and processes regardless
a corporate accused of jurisdiction, unless there is a good reason for
• section 335, for rules about interpreters a difference.
• s ection 337, which allows the court to exercise powers The most significant change to summary procedure in
in the Act on application or on its own motion Chapter 3 relates to pre-hearing disclosure. The Act
streamlines and simplifies the disclosure regime and
•P
art 8.3, which sets out comprehensive rules for the harmonises, where appropriate, the provisions relating
service of documents to summary, committal and trial disclosure. The changes
•P
art 8.4, (particularly Divisions 1, 2 and 5) which deal are dealt with in Part 3.2 and are discussed in more detail
with costs in the commentary on that Part.
• s ection 412, which provides a broad power to amend For transparency and clarity, Chapter 3 also contains
documents (including warrants and judgments) where provisions which clearly set out the course of a summary
there is a defect or error. hearing in the Magistrates’ Court (see Divisions 5, 6
and 7 of Part 3.3). Previously, clause 2 of Schedule 2 to
It is also important to note that Divisions 2, 3, 4, 5, and 7
the Magistrates’ Court Act 1989 merely provided that
of Part 8.2 apply to summary proceedings where those
the course of proceedings to be followed was that set
proceeding relate to sexual offences and Divisions 3 and
out for trial procedure in the Supreme Court “with any
4 of Part 8.2 apply to summary proceedings that consist
necessary modifications”. This sometimes made the law
of family violence.
very complicated where the trial procedure laws were
Relevant transitional provisions are located in Schedule unclear and then needed to be modified for summary
4 to the Act. Clause 6 deals specifically with this Chapter proceedings. The new provisions take the reader through
and mirrors the transitional provision for Chapter 2 of the the course of a summary hearing step by step. The
Act by providing that the provisions of Chapter 3 of the provisions largely reflect the trial provisions in the Act.
Act will apply to a criminal proceeding commenced on or
after 1 January 2010, regardless of when the offence is
alleged to have been committed.
, Chapter 3 | 61
Summary Procedure
Commencement of
a proceeding
Chapter 2
Disclosure
Part 3.2
Div 2 and 3 Summary case
conference
Part 3.2 Div 4
Adjourn for Non- Mention hearing
diversion appearance Part 3.2 Div 4
Part 3.3 Div 2 of a party
Part 3.3 Div 10
Sentence
Contest mention indication Part 3.3
hearing Div 2 (may occur
Part 3.2 Div 4 any time before
sentencing)
Summary hearing
Part 3.3
Sentencing hearing
Part 3.3 Div 8, 9
Rehearing
Part 3.4
Appeal from
Magistrates’ Court
Chapter 6
LEGEND:
Court responsibility Prosecutor responsibility Accused responsibility
Optional process
, 62 | Criminal Procedure Act 2009 – Legislative Guide
Part 3.1 – When a Discussion
Previously, many of the key provisions dealing with
Summary Hearing summary procedure were set out in Schedule 2 to the
May Be Held Magistrates’ Court Act 1989. The Act now deals with all
of the key summary procedure provisions in Chapter 3,
rather than splitting the provisions between the Act and
Part Overview a schedule. This reflects the importance of the provisions
This Part rationalises and simplifies the provisions dealing and makes them easier to locate.
with when a summary hearing may be held. It provides
that a summary hearing must be held for summary 28 Indictable offences that may be heard
offences and certain indictable offences. It also sets out and determined summarily
the circumstances when an indictable offence may be
determined summarily.
Overview
Legislative History This section outlines which indictable offences can be
heard and determined summarily by the Magistrates’
This Part is based on provisions in the Magistrates’ Court
Court.
Act 1989.
Legislative History
Relevant Rules/Regulations/Forms
Section 28 is based on sections 53(1A), 53(1B) and
Not applicable.
53(1C) of the Magistrates’ Court Act 1989. The
provisions have been slightly reworked.
Discussion
This Part does not make any substantial changes to Relevant Rules/Regulations/Forms
the circumstances in which certain indictable offences
Not applicable.
may be heard and determined summarily. However, it
does include recent amendments made by the Courts
Discussion
Legislation (Jurisdiction) Act 2006. This Act amended
the Magistrates’ Court Act 1989 to expand the range of Changes introduced by the Courts Legislation
indictable offences that could be heard and determined (Jurisdiction) Act 2006 (the 2006 Act) broadened the
summarily. It also introduced a statutory framework category of indictable offences that could be heard and
to guide the court in determining whether or not an determined summarily (i.e. in the Magistrates’ Court
indictable offence should be dealt with summarily. before a magistrate sitting alone, rather than before a
jury in the County Court or Supreme Court following
27 Summary offences committal for trial). The changes were informed by the
guiding principle that an offence should be tried in the
lowest appropriate jurisdiction, so that the resources of
Overview
the higher courts are not unnecessarily used for more
This section provides that a charge for a summary minor offences.
offence must be heard and determined in accordance
Prior to the 2006 Act, sections 53(1) and 53(1A) of the
with this Chapter or, in certain cases, Division 1 of Part
Magistrates’ Court Act 1989 specified two categories of
5.8. Division 1 of Part 5.8 sets out how a summary
indictable offences which could be heard and determined
offence may be dealt with in the County Court or
summarily, namely:
Supreme Court in certain cases where the accused is
also being dealt with for an indictable offence. • offences listed in Schedule 4 to that Act
•o
ffences under Acts that are described as level 5 or
Legislative History
6 offences, or as being punishable by level 5 or 6
This provision is based on section 51 of the Magistrates’ imprisonment or fine or both.
Court Act 1989. However, rather than providing that a
A level 5 offence is punishable by 10 years maximum
summary hearing is to be determined in accordance with
imprisonment and a level 6 offence is punishable by 5
a schedule, the section refers to Chapter 3 of the Act,
years maximum imprisonment.
where all of the key provisions dealing with summary
procedure are now located. Prior to the 2006 Act, the definition excluded:
• indictable offences punishable by imprisonment for a
Relevant Rules/Regulations/Forms
term equivalent to (or less than) level 5 or 6, where the
Not applicable. offence was not described in those terms
•c
ommon law offences (which were excluded as section
53(1A) only covered offences under Acts and no
common law offences were listed in Schedule 4).
Summary Procedure
,60 | Criminal Procedure Act 2009 – Legislative Guide
Chapter 3 – Summary
Procedure
Chapter Overview The note following subclause 6(1) of Schedule 4 refers
to section 5 of the Act which sets out how a criminal
Chapter 3 regulates procedures for all summary hearings proceeding is commenced (see discussion of section 5).
under the following Parts:
Part 3.1 – When a Summary Hearing May Be Held Legislative History
Part 3.2 – Procedure Before a Summary Hearing Chapter 3 is based on provisions from the Magistrates’
Court Act 1989.
Part 3.3 – Summary Hearing
Part 3.4 – Rehearing Discussion
Important terms that are used in this Chapter, which are Summary procedure is an important and discrete part
defined in section 3 of the Act, include mention hearing, of criminal procedure. Previously, parts of summary
contest mention hearing, full brief, preliminary brief, proceedings and committal proceedings were dealt with
summary hearing, and summary case conference. in the same part of the Magistrates’ Court Act 1989 and
then in different Schedules to that Act. This Act takes
General definitions contained in section 3 of the Act, a different approach. Summary procedure is dealt with
which are relevant to summary procedure include in one Chapter rather than in different locations within
appropriate registrar, informant and return date. the Act. Committals are then dealt with in a separate
It is also important to note that Chapter 8 of the Act Chapter (see Chapter 4) because, although committal
contains general provisions applying to all criminal proceedings are also conducted in the Magistrates’
proceedings. See for example: Court, they are a separate process.
• s ections 328–330, which deal with when parties are Provisions relating to commencing proceedings have
required to appear and attend at hearings, including also been given their own chapter (discussed above
who can appear on a party’s behalf in Chapter 2) as they apply to both summary and
committal proceedings.
• section 331, which sets out a broad power of adjournment
As is the case in many parts of the Act, Chapter 3
• s ection 334, for procedures relevant to charges against adopts consistent language and processes regardless
a corporate accused of jurisdiction, unless there is a good reason for
• section 335, for rules about interpreters a difference.
• s ection 337, which allows the court to exercise powers The most significant change to summary procedure in
in the Act on application or on its own motion Chapter 3 relates to pre-hearing disclosure. The Act
streamlines and simplifies the disclosure regime and
•P
art 8.3, which sets out comprehensive rules for the harmonises, where appropriate, the provisions relating
service of documents to summary, committal and trial disclosure. The changes
•P
art 8.4, (particularly Divisions 1, 2 and 5) which deal are dealt with in Part 3.2 and are discussed in more detail
with costs in the commentary on that Part.
• s ection 412, which provides a broad power to amend For transparency and clarity, Chapter 3 also contains
documents (including warrants and judgments) where provisions which clearly set out the course of a summary
there is a defect or error. hearing in the Magistrates’ Court (see Divisions 5, 6
and 7 of Part 3.3). Previously, clause 2 of Schedule 2 to
It is also important to note that Divisions 2, 3, 4, 5, and 7
the Magistrates’ Court Act 1989 merely provided that
of Part 8.2 apply to summary proceedings where those
the course of proceedings to be followed was that set
proceeding relate to sexual offences and Divisions 3 and
out for trial procedure in the Supreme Court “with any
4 of Part 8.2 apply to summary proceedings that consist
necessary modifications”. This sometimes made the law
of family violence.
very complicated where the trial procedure laws were
Relevant transitional provisions are located in Schedule unclear and then needed to be modified for summary
4 to the Act. Clause 6 deals specifically with this Chapter proceedings. The new provisions take the reader through
and mirrors the transitional provision for Chapter 2 of the the course of a summary hearing step by step. The
Act by providing that the provisions of Chapter 3 of the provisions largely reflect the trial provisions in the Act.
Act will apply to a criminal proceeding commenced on or
after 1 January 2010, regardless of when the offence is
alleged to have been committed.
, Chapter 3 | 61
Summary Procedure
Commencement of
a proceeding
Chapter 2
Disclosure
Part 3.2
Div 2 and 3 Summary case
conference
Part 3.2 Div 4
Adjourn for Non- Mention hearing
diversion appearance Part 3.2 Div 4
Part 3.3 Div 2 of a party
Part 3.3 Div 10
Sentence
Contest mention indication Part 3.3
hearing Div 2 (may occur
Part 3.2 Div 4 any time before
sentencing)
Summary hearing
Part 3.3
Sentencing hearing
Part 3.3 Div 8, 9
Rehearing
Part 3.4
Appeal from
Magistrates’ Court
Chapter 6
LEGEND:
Court responsibility Prosecutor responsibility Accused responsibility
Optional process
, 62 | Criminal Procedure Act 2009 – Legislative Guide
Part 3.1 – When a Discussion
Previously, many of the key provisions dealing with
Summary Hearing summary procedure were set out in Schedule 2 to the
May Be Held Magistrates’ Court Act 1989. The Act now deals with all
of the key summary procedure provisions in Chapter 3,
rather than splitting the provisions between the Act and
Part Overview a schedule. This reflects the importance of the provisions
This Part rationalises and simplifies the provisions dealing and makes them easier to locate.
with when a summary hearing may be held. It provides
that a summary hearing must be held for summary 28 Indictable offences that may be heard
offences and certain indictable offences. It also sets out and determined summarily
the circumstances when an indictable offence may be
determined summarily.
Overview
Legislative History This section outlines which indictable offences can be
heard and determined summarily by the Magistrates’
This Part is based on provisions in the Magistrates’ Court
Court.
Act 1989.
Legislative History
Relevant Rules/Regulations/Forms
Section 28 is based on sections 53(1A), 53(1B) and
Not applicable.
53(1C) of the Magistrates’ Court Act 1989. The
provisions have been slightly reworked.
Discussion
This Part does not make any substantial changes to Relevant Rules/Regulations/Forms
the circumstances in which certain indictable offences
Not applicable.
may be heard and determined summarily. However, it
does include recent amendments made by the Courts
Discussion
Legislation (Jurisdiction) Act 2006. This Act amended
the Magistrates’ Court Act 1989 to expand the range of Changes introduced by the Courts Legislation
indictable offences that could be heard and determined (Jurisdiction) Act 2006 (the 2006 Act) broadened the
summarily. It also introduced a statutory framework category of indictable offences that could be heard and
to guide the court in determining whether or not an determined summarily (i.e. in the Magistrates’ Court
indictable offence should be dealt with summarily. before a magistrate sitting alone, rather than before a
jury in the County Court or Supreme Court following
27 Summary offences committal for trial). The changes were informed by the
guiding principle that an offence should be tried in the
lowest appropriate jurisdiction, so that the resources of
Overview
the higher courts are not unnecessarily used for more
This section provides that a charge for a summary minor offences.
offence must be heard and determined in accordance
Prior to the 2006 Act, sections 53(1) and 53(1A) of the
with this Chapter or, in certain cases, Division 1 of Part
Magistrates’ Court Act 1989 specified two categories of
5.8. Division 1 of Part 5.8 sets out how a summary
indictable offences which could be heard and determined
offence may be dealt with in the County Court or
summarily, namely:
Supreme Court in certain cases where the accused is
also being dealt with for an indictable offence. • offences listed in Schedule 4 to that Act
•o
ffences under Acts that are described as level 5 or
Legislative History
6 offences, or as being punishable by level 5 or 6
This provision is based on section 51 of the Magistrates’ imprisonment or fine or both.
Court Act 1989. However, rather than providing that a
A level 5 offence is punishable by 10 years maximum
summary hearing is to be determined in accordance with
imprisonment and a level 6 offence is punishable by 5
a schedule, the section refers to Chapter 3 of the Act,
years maximum imprisonment.
where all of the key provisions dealing with summary
procedure are now located. Prior to the 2006 Act, the definition excluded:
• indictable offences punishable by imprisonment for a
Relevant Rules/Regulations/Forms
term equivalent to (or less than) level 5 or 6, where the
Not applicable. offence was not described in those terms
•c
ommon law offences (which were excluded as section
53(1A) only covered offences under Acts and no
common law offences were listed in Schedule 4).
