Australia: Is there a Statute of Limitations for criminal offences in New South Wales?

Bill Cosby has returned home, after Pennsylvania's highest court quashed his conviction for sexual assault.

It's an extraordinary turnaround for one of the most high-profile cases of the #Metoo era, causing mixed reactions and leading many to question how such a finding could be reached.

More than 50 women across the United States have accused the high-profile entertainer of sexual assault and other forms of misconduct.

Mr Cosby was arrested in 2015 on charges that he had drugged and sexually assaulted Andrea Constand at his home in the Philadelphia suburbs 11 years earlier.

A jury ultimately found him guilty in 2018 of three counts of aggravated indecent assault against the complainant.

Mr Cosby served three years of a three to 10-year prison sentence, but the Pennsylvania Supreme Court ruled earlier this week that a "non-prosecution agreement" involving a previous prosecutor meant he should never have been charged in the first place.

The court also ruled out a re-trial.

And here's where it gets a little complicated.

In 2005, when Mr Cosby was investigated for the complaint by Ms Constand, a District Attorney in Montgomery County gave an assurance that he would not be charged over the allegations.

It was then announced in a news release at the time that an investigation had found "insufficient" evidence against the entertainer.

This resulted in Mr Cosby testifying in a civil case brought against him by Ms Constand, which was settled in 2006 for $3.38 million.

In his testimony during the civil proceedings, Mr Cosby admitted giving quaaludes to women he was pursuing for sex, and this evidence played a key part in his prosecution, which recommenced just days before the expiry of the 12-year limitation period during which charges could be brought..

The prosecution included additional allegations from women who asserted they had also been being drugged and sexually assaulted.

After carefully considering the course of the matter, including that a prosecution may never have eventuated if Cosby refused to testify during the civil proceedings, the Pennsylvania Supreme Court ruled that "the subsequent decision by successor District Attorneys to prosecute Mr Cosby violated Mr Cosby's due process rights."

To put it another way, the court found that Mr Cosby relied on the promise made to him by the District Attorney in 2005, gave evidence to his own detriment as a result, and that it was a violation of his rights to then use that evidence to support a criminal prosecution.

The decision to quash Mr Cosby's conviction is understandable at the same time it is controversial.

Some legal experts in the United States have expressed the view that the assurance and press release by the District Attorney in 2005 does not necessarily amount to an unconditional promise binding successive district attorneys not to prosecute.

Others believe the decision is important to encourage others who are accused of criminal offences but not criminally prosecuted to participate in civil proceedings brought against them.

In any event, it appears unlikely that Mr Cosby will face further prosecution as the statute of limitations in relation to complaints made so far has expired.

A statute of limitations is a piece of legislation which prevents certain criminal charges from being brought after a specified period of time.

Unlike many jurisdictions in the United States, New South Wales does not have a prescribed statute of limitations.

In fact, there is no limitation period in our state for 'indictable offences' – which are those capable of being finalised in a higher court such as the District or Supreme Court.

'Indictable offences' generally attract a maximum penalty of more than 2 years in prison, and include a very wide range of offences including most assaults, sexual assaults, fraud and crimes against property.

Minor offences, which are known as 'summary offences', are those finalised in the Local Court.

These offences generally carry a maximum penalty of 2 years or less in prison.

Section 179 of the Criminal Procedure Act 1986 (NSW) applies to these offences.

The section provides that '[p]roceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed.'

However, the section contains exceptions to this general rule, including:

1. Where an indictable offence is being dealt with summarily (in other words, where an offence capable of being referred to a higher court such as the District Court is dealt with in the Local Court instead),
2. Where the offence involves the death of a person that is or has been the subject of a coronial inquest, and
3. Where a summary offence is a 'back up' (an alternative offence that is not formally charged) to an indictable offence in circumstances where there is an appeal from the Local or Children's Court to the District Court, and the District Court sets aside the conviction for the indictable offence.

In relation to a summary offence which relates to the death of a person and is or has been the subject of a coronial inquest (see point 2 above) the proceedings must be commenced:

• Not later than 6 months after the conclusion of the inquest, or
• Not later than 2 years after the offence is alleged to have occurred,

whichever occurs first.

In relation to proceedings for 'back up' offences (point 3 above), proceedings must be commenced no later than 6 months after the appeal.

It is important to note that the general, six-month rule does not apply if another piece of legislation expressly contains a different limitation period.

An example of this is section 37A of the Fines Act 1996, which provides that traffic offences commenced by way of a penalty notice have a limitation period of 12 months where the driver or rider elects to have the matter dealt with in court.

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