18. Summary prosecutions

18.1 General

The summary prosecution section of the Office provides legal advice to government departments and State Service agencies and assists the Director in the conduct and management of lower court appeals and summary prosecutions under the Workplace Health and Safety laws, Consumer Business and Environment laws and other regulatory offences. The Office also conducts criminal matters in the Magistrates Court that have been remitted from the Supreme Court, indecent assaults and serious summary traffic offences that have resulted in death or serious injury.

In determining whether to proceed with a matter the Prosecution guidelines will apply and when prosecuting matters the Prosecutors’ duties will apply. In particular, when summary prosecutions are being conducted by the Office the disclosure provisions of these guidelines, as far as they can be applicable, will apply.

For certain summary prosecutions the Witness Assistance Service will be utilised, especially in cases where the prosecution involves the death or serious injury of a person or the offence is of a sexual nature.

18.2 Contest mention in the Magistrates Court

During a contest mention hearing a prosecutor may be faced with, either expectedly or unexpectedly, a sentence indication being sought by defence.

A prosecutor is not to consent to a sentence indication in the Magistrates Court for the crime of indecent assault.

At any sentence indication a prosecutor must not say that they consent or agree to any sentence indication. To do so is contrary to Barbaro & Zirilli v R (2014) 253 CLR 58. However, the prosecutor can give submissions in relation to sentence as we would at any sentencing hearing.

In relation to summary matters involving charges contrary to the Work Health and Safety Act 2012 (and associated regulations), the Animal Welfare Act (and associated regulations), the Heavy Vehicle National Law, the Environmental Management & Pollution Control Act 1994 (and associated regulations), the Pollution of Waters by Oil and Noxious Substances Act 1987 (and associated regulations), the Building Act 2016 (and the now-repealed Building Act 2000) and the Occupational Licensing Act 2005 (and associated regulations) or any other regulatory offences, a prosecutor will often be on notice as to the defendant seeking a contest mention and the matters to be raised if a sentence indication is sought. In those circumstances, the prosecutor should discuss with the L3 Crown Counsel - Summary Prosecutions or, in their absence, a member of the Committee or the Director, the submissions that ought to be made to the magistrate.

18.3 Sentence indications and section 308 remittals

Prosecutors are not to engage in a sentencing indication in respect to a s308 remittal. Section 308(3) provides a magistrate with the same power and jurisdiction as a judge. As there are no sentence indications given in the Supreme Court, prosecutors should not engage in such a process in the Magistrates Court.