When a person is charged with a criminal or traffic offence after a long delay, they may ask 'is there a statute of limitations in Australia?'
In many jurisdictions, this question will be determined based on how serious the offence is.
The seriousness of a charge will determine how the case proceeds in court. It also determines whether or not a statute of limitations applies to it.
Criminal cases are generally commenced by the issuing and filing of a court attendance notice ('CAN').
Court proceedings in respect to criminal or traffic charges may commence by way of issuing and filing a CAN notice. This can be done by a police officer, public officer, or private prosecution pursuant to sections 173 and 174 of the Criminal Procedure Act 1986 (NSW).
If the offence is a summary offence, it will be dealt with in the local court 'summarily'. These offences generally carry a maximum penalty of two years imprisonment or less. Some examples of summary offences include drink driving, offensive language and drug possession.
More serious offences are called indictable offences.
Indictable offences can remain in the local court, but they can also be moved to the district court or supreme court.
Charges are therefore categorised into either summary offences or indictable offences.
There are then strictly indictable offences, which commence in the Local Court but must be finalised in the district or supreme court.
Examples of strictly indictable offences include sexual assault, murder and robbery.
What is a Statute of Limitations?
A statute of limitations is the maximum amount of time between the commission of a crime and when the charge is laid.
A court attendance notice must first be filed with the court. It then will be served on the defendant.
If the charge was laid after the statute of limitation period, then this should be brought to the attention of police and the court as soon as possible.
This is because the court will not have the power to hear the matter. This is known as the court being 'functus officio'.
Based on this, the charge should be withdrawn by the prosecutor and dismissed by the court.
Statute of Limitations Australia
The statute of limitations in Australia is set out in Section 15B of the Crimes Act 1914 (Cth).
A person cannot be charged with a summary commonwealth offence 12 months after it is alleged to have occurred.
A summary offence is an offence that carries a maximum penalty of 6 months' imprisonment or less.
If the defendant is a corporation, a summary offence is an offence with a maximum penalty of 150 penalty units or less.
For all other commonwealth offences, there is no statute of limitations. For example, there is no statute of limitations for murder.
This explains why you can be charged for an incident many years after the fact. For some offences, it can be difficult for the prosecution to obtain evidence at the time of the incident.
In other cases, the alleged victim may be unable or unwilling to come forward until a later date. This is quite common with historical sexual assault offences.
If you believe you may have been charged with an offence which is outside the statute of limitations period, you should contact experienced criminal lawyers in Sydney.
Statute of Limitations NSW
The statute of limitations in NSW is 6-months for summary offences.
This means that if it has been more than 6 months since the alleged offence occurred, you cannot be found guilty.
This limitation is contained in Section 179(1) of the Criminal Procedure Act 1986 (NSW).
Criminal lawyers in Sydney explain that some statute of limitations examples include:
- A negligent driving charge laid more than 6 months after an accident;
- Police filing an obscene exposure charge at least 6 months after the incident occurred;
- A goods in custody charge laid outside of the time limit.
It is important to note that the NSW statute of limitations in criminal law does not apply to indictable offences. These are more serious offences that can be dealt with in higher courts.
The 6-month statute of limitations in NSW also does not apply to:
- An indictable offence that is being heard summarily in the local court, or
- Any offence involving the death of a person or that is or has been subject to a coronial inquest.
In relation to summary offences involving the death of a person that is or has been the subject of a coronial inquest, the following time limits apply:
- 6-months from the conclusion of the inquest, or
- 2-years from the date of the alleged offence.
For firearms offences being heard in the local court, there is a 2-year statute of limitations from the date of the alleged offence. This is contained in section 85 of the Firearms Act 1996 (NSW).
Traffic Cases Sydney NSW
Some traffic offences are dealt with by way of a penalty notice fine as opposed to a court attendance notice.
Fines have a statute of limitations of 12 months. This means that a fine must be issued within 12 months of the incident taking place. This is set out in section 37A of the Fines Act 1996 (NSW).
Examples of penalty notice offences include:
- drug possession,
- red light offences,
- speeding fines,
- negligent driving charges,
- use mobile phone while driving.
Statute of Limitations Victoria
The statute of limitations in Victoria is 12-months for summary offences.
This means that for less serious offences, police cannot charge a person 12 months after the date of the alleged offence.
The only exceptions to this rule are if legislation sets out a longer period of time, or if both parties agree to proceedings commencing outside the expiry period (see: section 7 of the Criminal Procedure Act).
Statute of Limitations Qld
Queensland has a 12-month statute of limitations period for summary offences.
This means that police cannot charge a person for a summary offence 12-months after the alleged offence occurs.
There are some exceptions to this in Section 52 of the Justices Act 1886 (Qld). These exceptions allow police to charge a person with a simple offence or breach of duty offence up to two years after the date of the alleged offending. However, this is only if the person was charged with an indictable offence and the prosecution withdraws the indictable offence proceedings.
Statute of Limitations WA
Western Australia (WA) has a 12-month period from the date of the alleged offence for when police can charge you for a simple offence.
This is contained in section 21 of the Criminal Procedure Act 2004 (WA). This means that police are barred from charging you with a simple offence 12-months after they allege the offence occurred.
The only exceptions to this rule are if the legislation says otherwise or the defendant consents to it being commenced at a later time.
Simple offences are 'summary only' type offences. They must be finalised in the Magistrates Court rather than the District Court.
Statute of Limitations South Australia
In South Australia, police cannot charge a person with an expiable offence six months after the expiry date of the expiation period.
This period will be outlined in the expiation notice. If a expiation notice is not served on the accused person, police may charge a person for an expiable offence within 6-months of the date of the alleged offence.
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 for police to charge a person in the Northern Territory for a summary type offence is 6-months from the date of the alleged offence.
The only exceptions to this is if legislation states otherwise. This means that you cannot be charged for a simple offence 6 months after it occurred. Examples include drink driving and common assault.
Statute of Limitations Tasmania
In Tasmania, police cannot charge a person with a summary criminal offence under the Police Offences Act 1935 (Tas) six months from the date of the alleged offence.
The only exception to this rule is if legislation states otherwise.
What is a limitation? | Limitations of Law
A limitation is a time limit for when an offence can be charged. It is also known as being statute barred.
A statute of limitations generally applies to summary offences. This means that there is a time limit within which police can charge a person for these offences. If that time limit expires from the date of the alleged offence, then the charge cannot be brought against a person.