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Is there a Statute of Limitations in Australia? – Crime



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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

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Based on this, the charge should be withdrawn by the prosecutor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.

Exceptions

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.



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