Summary offences in Victoria

414 Pages·2017·1.074 MB·English

by  Kyle McDonald

Summary Offences in
Victoria
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Summary Offences in
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KYLE(cid:3)M(cid:70)DONALD
LAWBOOK(cid:3)CO.(cid:3)2017
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McDonald,Kyle
Notes:Includesindex.
Subjects:Procedure(Law)--Victoria.
Practiceoflaw--Victoria.
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Foreword
Brendan A Murphy QC
Principal Public Interest Monitor
It is both my honour and privilege to be asked to write the Foreword of this
excitingpublication.Myviewformanyyearswasthatthetruetestofapublication
such as this was whether or not one could find the answer to a problem whilst on
one’sfeet.Thereisnodoubtongoingthroughthisbookthatthismeasurehasbeen
satisfied.
There have been a few publications attempting to cover the areas that are covered
bytheauthor.Theyfellshortofthetest.Whatmustbeunderstoodisthatthegreat
percentage of criminal litigation in this state is heard in the Magistrates’Court of
Victoria.Infactnearly94%isthepercentage.Thusthepeoplewhopractiseinthat
area need resources that are provided in this book. Clearly, this publication is a
necessarytoolforanyonewhowantstopractiseintheMagistrates’Court.Whether
itistoprosecuteordefendcharges,thebookhasawealthofmaterialnotgenerally
found in the one place, for example, a list of common summary offences in
Victoria and all matters relevant to the prosecution and defence of summary
offencesinVictoria.Thisisavitalproductionforstudentsoflawandlegalstudies.
I recommend this publication to anyone interested in criminal litigation in the
Magistrates’Court.

Preface
I remember when I first chanced across what was then Heath’s (now Freckelton
andCockcroft’s),IndictableOffencesinVictoria.Itwasaround1997,inthemuster
room of the now-demolished Sunshine police station in Sun Crescent.The internet
was barely a thing, and the abundance of legal information we now take for
granted wasn’t even on the horizon. I was by then a senior constable with about
five years’ policing experience and a moderate competence at what remains a
challenging job.
One of the biggest challenges then in the law, as in most professions, was the
scarcity of information. Most police stations had a single collection of hardcopy
reprints of legislation most likely to involve police, and individual officers would
buy the Study Guide compiled and revised annually by the Training Department,
or rely on the venerable Detective Training School notes that slowly but surely
permeated through police stations and criminal investigation units.The DTS notes
were of varied quality, depending on their age and author, and would on occasion
confidently cite dissenting judgments as authoritative.
The Study Guide was frequently accurate, though it only touched on a handful of
offences. But it did contain the in-demand Charge Reference Manual, a “Top 50”
of the most commonly charged criminal and traffic offences, with suggested
charge-wordings, points of proof, and statutory references necessary for compiling
necessary paperwork.
The battered old copy I stumbled across of Indictable Offences in Victoria left
lying around in that muster room was something far more useful. It provided then,
as now, authoritative guidance to the legislation and leading cases relevant to each
offence. It very helpfully explained when an offence might not be made out, but
also suggested alternatives that could be considered.
“Why isn’t there something like this for summary offences?” I wondered.
And I continued to wonder, until Thomson Reuters agreed to my idea of this
companion work, Summary Offences in Victoria.
I don’t think the absence till now of a work like this was a deliberate snub to the
work of courts of summary jurisdiction.There’s an understandable tendency in the
criminal justice system to focus on the most serious of criminal offences, because
so much is at stake for all those involved: victims and accused, and their families;
investigators; lawyers; courts; and the public.
But summary offences, though less serious, are no less significant for those
affected by them. ABS statistics show around 108,000 criminal cases finalised in
Victoria’s Magistrates’Courts for 2015–2016, against 1,999 for the Higher Courts.
viii Preface
Though the Magistrates’ Court figure includes indictable offences determined
summarilyaswellassummaryoffences,thenumbersshowthatmostofthepeople
affected by the criminal justice system are affected by summary offences.
My hope is that this book will prove helpful to police, who often have to make
weighty decisions with little time or information available to them, as well as
lawyers advising accused people, advocates dealing with these charges in court,
and judicial officers determining summary charges.
It may even be that the information here helps avoid court proceedings. In some
cases, the mere knowledge that they have a power to act allows police to
successfully persuade a potential offender to desist from their behaviour or be
charged. In other cases, possessed with accurate information about an offence
provision, investigators and prosecutors occasionally recognise that an allegation
can’t be proved or shouldn’t proceed any further.
And of course, where a person has committed an offence and is brought before a
court, it is in the public interest that they are dealt with according to law, with
competent advocacy for both the prosecuting authority and accused.
This book deliberately does not comment on what the law should be, or whether
some of these admittedly archaic offences are necessary or desirable in the 21st
century. Recent debates on the offence of begging alms is a case in point. Instead,
it aims to succinctly state what the law is, or where there is uncertainty, how it is
likelytobeapplied.Theplethoraofsummarytrafficoffencesarenotcoveredhere,
so for those the reader is directed instead to the detailed discussion in Connellan,
Cockcroft and McDonald, Road Safety Law Victoria (Lawbooks Co., 2015)
(RSLV).
ThemostcommonlyencounteredofthoseoffencesundertheRoadSafetyAct1986
(Vic) (RSA) and Road Safety Road Rules 2009 (Vic) (RR) are:
• Using an unregistered motor vehicle (RSA s 7): see RSLV at
[4.8.1410]–[4.8.1430].
• Driving while unlicensed (RSA s 18): see RSLV at [4.8.1630]–[4.8.1660].
• Driving when disqualified or licence suspended (RSA s 30): see RSLV at
[4.8.2030]–[4.8.2090].
• Exceeding prescribed concentration of alcohol within three hours of driving
(RSA s 49(1)(f)): see RSLVat [4.8.2322]–[4.8.2388] and [4.8.2620]–[4.8.2638].
• Refusing preliminary breath test (RSA s 49(1)(c)): see RSLV at
[4.8.2322]–[4.8.2388] and [4.8.2500]–[4.8.2512].
• Refuse or fail to stop at random breath testing station (RSA s 49(1)(d)): see
RSLV at [4.8.2322]–[4.8.2388] and [4.8.2540]–[4.8.2550].
• Refuse to accompany, remain, provide further breath sample or permit blood
sample (RSA s 49(1)(e)): see RSLV at [4.8.2322]–[4.8.2388] and
[4.8.2560]–[4.8.2578].
• Fail to produce licence and state name and address (RSA s 59): see RSLV at
[4.8.3605]–[4.8.3730].
Preface ix
• Fail to stop, render assistance, give name and address to person injured or
property owner, or report to most accessible police station following accident
where person injured (RSA s 61(4)(b)): see RSLV at [4.8.3865] and [4.8.3874].
• Fail to stop, render assistance, give name and address to property owner, or
report to most accessible police station following accident where property was
damaged (RSA s 61(5)): see RSLV at [4.8.3865] and [4.8.3876].
• Dangerous driving (RSA s 64): see RSLV at [4.8.4070]–[4.8.4099].
• Careless driving (RSA s 65): see RSLV at [4.8.4200]–[4.8.4238].
• Improperuseofmotorvehicle(RSAs65A):seeRSLVat[4.8.4241]–[4.8.4249].
• Tamper or interfere with motor vehicle (RSA s 70): see RSLV at
[4.8.4410]–[4.8.4429].
• Fraudulentlyalteroruseregistrationlabel,licenceoridentifyingnumber(RSAs
72): see RSLV at [4.8.4475]–[4.8.4509].
• Exceed speed limit (RR r 20): see RSLV at [4.8.10050]–[4.8.10140].
• Fail to stop at red or yellow traffic light or arrow (RR rr 56, 57): see RSLV at
[4.8.10150]–[4.8.10180].
• Fail to stop at stop sign or stop line (RR r 67): see RSLV at
[4.8.10200]–[4.8.10220].
• Fail to keep left (RR rr 129, 130): see RSLV at [4.8.10390]–[4.8.10410].
• Driver fail to wear seatbelt (RR r 264): see RSLV at [4.8.10530].
• Use mobile phone for other than permitted use (RR r 300): see RSLV at
[4.8.10550]–[4.8.10580].
KYLE MCDONALD
Melbourne
3 April 2017