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Court proceedings for a criminal or traffic charge in NSW commence in court when a ‘court attendance notice’ is issued and filed. It is also known as the formal charge. The statute of limitations in NSW, Australia, apply to certain charges called ‘summary offences’ which have a time limit for when police can charge a person. Police cannot charge a person if that time has expired.
From the moment a court attendance notice is issued and filed, the case will then take its natural legal course through the courts in relation to the charge. If a time limit due to the statute of limitations law applies to the charge, and if the time limit has expired, the charge will be withdrawn or dismissed.
In other words, if a statute of limitations period has expired for a charge where it applies to, then regardless of how strong or weak the police case is, you cannot be charged for it.
Some less serious charges commence and remain in the local court, while other more serious charges commence in the local court but end up finalising in the district or supreme court. The district court is the next higher court from the local court which hears and deals with more serious charges.
The less serious charges are called summary offences, while the more serious offences are called indictable offences. Charges are therefore categorised into either summary offences or indictable offences.
The type of category a charge falls into will determine how the case proceeds in court, and which court it ends up proceeding in. It also determines whether or not a statute of limitations apply to it.
A ‘court attendance notice’ is also known for short as a ‘CAN notice’. A CAN notice can be issued to a person who either has or is suspected of having committed an offence.
Court proceedings in respect to criminal or traffic charges may commence by way of issuing and filing a CAN notice by a police officer or public officer or via private prosecution, under sections 173 and 174 of the Criminal Procedure Act 1986 (NSW).
Summary offences remain and are dealt with in the local court ‘summarily’. They generally carry a maximum penalty of two years imprisonment. These types of charges include drink driving, offensive language and drug possession.
Indictable offences include more serious charges, such as sexual assault, or other charges carrying maximum penalties of more than two years imprisonment. Many indictable offences can still remain and be dealt with in the local court if no election is made. Other more serious types of charges such as sexual intercourse without consent are called ‘strictly indictable’ offences, which must be dealt with in the district court.
Statute of Limitations NSW
For NSW summary offences, you cannot be charged after 6-months from the date of the alleged offence. The six-months state of limitations in NSW applies to all summary offences, under section 179(1) of the Criminal Procedure Act 1986 (NSW).
The NSW statute of limitations in criminal law does not apply for indictable offences.
The 6-month statute of limitations in NSW also does not apply to:
- A charge under a law that specifies some other period or statute of limitations for it, or
- An indictable offence that is elected, and is being dealt with summarily in the local court, or
- A charge involving the death of a person or is/has been subject to a coronial inquest.
The following statute of limitations apply for summary offences involving the death of a person that either is or has been the subject of a coronial inquest:
- 6-months from the conclusion of the inquest, or
- 2-years from the date of the alleged offence.
If it is a firearms offence dealt with in the local court, a 2-years statute of limitations applies from the date of the alleged offence, under section 85 of the Firearms Act 1996 (NSW).
Otherwise, for indictable offences in NSW, a statute of limitations generally does not apply. You can therefore be charged many years later if the charge is an indictable offence.
This is often what occurs in many sex offences. These types of offences are commonly referred to as historical sex offences.
Historical sexual assault offences often involve alleged offences committed decades ago, making it difficult for the prosecution to backtrack on gathering sufficient evidence, which may or may no longer exist.
It also makes it difficult for people to recall events from many years ago. These features often weaken the prosecution case, but also make it difficult for an accused person to recall events that far back.
Traffic Incidents Sydney NSW | Traffic Accident Report NSW
Certain offences result in the issue of a penalty notice fine instead of a court attendance notice. Penalty notice fine offences have a statute of limitation of 12 months. This means, that the time for being able to commence proceedings for these type of offences expires after 12 months from the date of the alleged offence, according to section 37A of the Fines Act 1996 (NSW).
Penalty notice offences include drug possession, and many traffic matters, including red light speed camera offences, exceed speed, disobey traffic sign/light, drive disqualified/suspended, negligent driving and offensive language.
This is relevant when there is a traffic accident, and there is usually one or more parties involved at fault. A penalty notice may then be issued to the party who is deemed at fault if it is a penalty notice offence, such as negligent driving.
Statute of Limitations for Commonwealth Offences in Australia
The statute of limitations apply differently for commonwealth charges across Australia.
A person cannot be charged with a commonwealth offence after one year from the date of the alleged offence if charge carries a maximum penalty of 6 months or less imprisonment (or if it carries no imprisonment penalty), under section 15B of the Crimes Act 1914 (Clth).
Otherwise, for commonwealth offences, there is no statute of limitations.
If prosecuting a corporation, a 1-year statute of limitations apply if the maximum penalty for a commonwealth offence is 150 penalty units or less (1 penalty unit is $110).
If prosecuting an individual person for the commonwealth offence of aiding and abetting committed by a corporation, a 1-year statute of limitations apply if the maximum offence that can be imposed on the corporation in respect of the primary offence includes a fine of 150 penalty units for a first conviction.
Have a question on a criminal charge in Australia? Contact our experienced criminal lawyers Sydney branch today.
Statute of Limitations Victoria
In Victoria, a 12-months statute of limitation period applies to summary offences. This means that for less serious criminal charges known as ‘summary offences’, such as common assault, police are not allowed to charge a person if 12-months from the date of the alleged offence has passed unless the legislation stipulates a longer limitation period, or if both parties agree to proceedings commencing outside the expiry period. (section 7 of the Criminal Procedure Act).
Statute of Limitations Qld
In Queensland, there is a 12-month statute of limitations period during which time police can charge a person for a simple offence or breach of duty type offence that is dealt with summarily, unless another time frame is stipulated in the legislation.
This means, that police are not allowed to charge a person for a summary offence such as drink driving or public nuisance outside the 12-month period from the date of the alleged offence.
Section 52 of the Justices Act 1886 (Qld) allows police to charge a person with a simple offence or breach of duty of up to two years from the date of the alleged offending if the person was charged with an indictable offence and the prosecution withdraws the indictable offence proceedings.
Statute of Limitations WA
In Western Australia (WA) there is a 12-months limitation period during which time police can charge a person for a simple offence from the date of the alleged offence according to section 21 of the Criminal Procedure Act 2004 (WA). This means that police are not allowed to charge a person with a simple offence outside that 12-month period unless legislation says otherwise or the person consents to it being commenced at a later time.
Simple offences are also known as ‘summary only’ type offences. These include drug possession and many traffic offences. These charges can only be dealt with in the Magistrates Court instead of the District or Supreme Court.
Statute of Limitations South Australia
The time limit in SA for police to be allowed to charge a person is within six months of the expiry date of the expiation period outline in the notice, if the expiation notice has been given for an expiable offence. If the expiation notice is not given to the person, the police are allowed to charge a person for an expiable offence within 6-months of the date of the alleged offence. But the time limit for any other summary offence is 2-years from the date of the alleged offence.
Statute of Limitations Northern Territory
The time limit in which police are allowed to charge a person in the Northern Territory for a summary type offence is 6-months from the date of the alleged simple offence, unless legislation states otherwise. This means that the police are prohibited from charging a person with a simple offence such as drink driving, or common assault if the 6-month time limitation period has expired.
Statute of Limitations Tasmania
The time limit in Tasmania for when police can charge a person with a criminal offence under the Police Offences Act 1935 (Tas) is six months from the date of the alleged offence, unless stated otherwise. These types of offences a summary type offences, including common assault, public disorder, damage property etc.
What is a limitation? | Limitations of Law
Statute barred or time limitations in a legal sense here is referred to as a statute of limitations. A statute of limitation applies to certain charges outlined above, namely summary offences- less serious offences. It means that there is a time limit within which police can charge a person. If that time limit expires from the date of the alleged offence, then the charge cannot be brought against a person. The statute of limitations for summary offences is 6-months in NSW.
FAQ
The statute of limitations in Australia depends on the state or territory and the type of offence. For example, due to a 6-month statute of limitations that apply to minor offences in NSW (referred to as summary offences), police cannot charge a person if 6-months from the date of the alleged offence has expired. After expiry of this time limitation, the court will no longer have jurisdiction to deal with the matter.
Commonwealth offences don’t have a statute of limitations in Australia. The one exception to this is for commonwealth offences that carry a maximum of no more than 6-months imprisonment or less; or if the offence carries no imprisonment penalty to it, in which case there is a 1-year statute of limitations from the date of the alleged offence. Commonwealth offences that don’t have a statute of limitation include using a carriage service offence or importation of a border controlled drug.
NSW offences don’t have a statute of limitations, unless it is a summary offence. The types of offences that don’t’ have a statute of limitations are indictable offences, which are more serious offences than summary offences. Indictable offences include assaults, sexual assaults etc.
Statute of limitations are not the same for all crimes. In NSW, the statute of limitations is 6 months for less serious crimes (summary offences), such as drink driving or drug possession.
There is a 2-year statute of limitation for summary offences involving a death of a person that is or has been subject to a coronial inquest. This statute of limitations runs from the date of the alleged offence.
A 6-month statute of limitation applies for summary offences involving a death of a person that either is or has been the subject of a coronial inquest. This statute of limitations runs from the conclusion of the inquest.
The Firearms Act 1996 (NSW) in relation to a firearms offence dealt with summarily has a statute of limitation of 2-years from the date of the alleges offence (section 85).
A statute of limitations does apply to civil cases, depending on the type of civil claim being made. For contract law, tort law, enforcement of recognizance, and recovering money in certain circumstances, the statute of limitations is 6-years from the date on which the cause of action first arises.
There is a limited period of time in which you can make a civil claim, referred to as the statute of limitations. According to the Limitation Act 1969 (NSW) a civil claim or action cannot be made or maintained if brought after the expiration of 6 years running from the date on which the cause of action first accrues to the Plaintiff or to a person through whom the plaintiff claims for the following types of claims:
- Contract law, not founded on a deed
- Tort law, including for damages for breach of a statutory duty
- To enforce a recognizance
- To recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
For personal injury claims or actions accruing on or after 1 September 1990, there is a 3-years statute of limitations. The legislation does provide for extensions of time for these types of claims.
The statutory time limit for summary offences in the state of NSW is 6-months from the date of the alleged offence. Summary offences are less serious offences i.e. drug possession, drink driving. The statutory time limit does not apply to more serious offences known as indictable offences i.e. assaults, drug supply. If a summary offences involves the death of a person that either is or has been subject to a coronial inquest, then the statutory time limit is 2-years from the date of the alleged offence. For commonwealth offences carrying no more than a maximum penalty of 6-months imprisonment or no imprisonment, the statutory time limit is 1-year from the date of the alleged offence.
A victim of a crime can be charged. Although rare, this can occur where the victim has also committed a crime in response. For example, in a domestic violence context, a victim to domestic violence may in response to the perpetrator end up assaulting him/her unless it was in self-defence. However, where the victim’s response in assaulting the perpetrator was not a reasonable response in the circumstances perceived by him/her, then it becomes excessive self-defence and therefore an assault.
A victim to a crime may also be charged for lying to police or lying under oath in court, known as perjury.
A victim is not prohibited from talking to a defendant, however, the offender or person charged is prohibited from talking to the victim if the bail conditions or AVO conditions prohibit it. If the bail or AVO conditions do not prohibit it, then the alleged offender/offender/accused person/defendant is permitted to talk to the victim. However, it is generally strongly advised for a victim to not talk to a defendant. It is also strongly advised for a defendant to not talk to a victim whether or not the bail or AVO conditions prohibit it.
If the court proceedings are still on foot. A victim talking to a defendant to the case can lead to a miscarriage of justice because it can result in the evidence being tainted. This can then also lead to the victim being charged for perjury.
A victim can visit a defendant in jail. There is nothing that prohibits a victim from visiting a defendant in jail. It is strongly advised not to do this if there is an AVO condition that prohibits the defendant from communicating with the victim. In such circumstances, if the defendant replies t, or in any way communicates in response to the victim, then this will result in a breach of AVO, resulting in further prosecution against the defendant.
A victim visiting a defendant in jail while the court case is still pending can negatively impact both sides of the case because it may lead to the evidence being tainted. This is because it raises opportunities for evidence to be corroborated.
A victim’s wish to not press charges is meant to be taken into consideration in light of the seriousness of the charges and practicability of the successfully prosecuting a case. Generally, police make the decision whether or not to press charges against a person regardless of whether or not the victim wants to press charges. Police will usually be more firm on proceeding to press charges in circumstances the victim doesn’t want to if the police have some evidence towards proving the alleges offence. This is especially the case if the victim has already provided police with a statement as to what occurred on his/her version.
Sometimes, if the police evidence is weak, and the legal representatives of the accused person negotiate to get the charge dropped, the police will speak to the victim to get his/her view on it.
It is usually difficult and sometimes impossible to prosecute without a victim attending court, however, in some circumstances it is possible to prosecute without a victim. For example, it is possible for police to successfully prosecute a person without a victim if the person has made admissions of guilt to the police in a legitimate way. In addition, the charge of affray does not require a specific victim in order for police to prosecute.
A person accused of a crime who has been assaulted as a result of illegality or impropriety by police may sue the police. For example, a police officer who illegally arrests and/or searches a person which results in that person being assaulted may be able to claim compensation for being arrested and searched. The payment will depend on the heads of damages claimed and extent of injuries sustained, including physical and psychological injuries.
A victim does not need a lawyer in criminal prosecution matters unless it is a private prosecution. The police prosecutors are trained advocates, not necessarily lawyers, who appear in court to represent the police who act for the alleged victim in criminal proceedings. A defendant or accused person charged with a criminal offence requires a lawyer in order to help him/her navigate through the complex legal processes for legal representation and advice. This also ensures that fundamental legal rights are protected to ensure that they are not disregarded by the police or courts.
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