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When a client is charged with a criminal or traffic offence, a question may arise as to whether there is a limitation period applicable to the offence. In some cases, a limitation period of six months applies to the Police being able to lay a charge against an accused person. The issue of whether a charge is subject to a limitation period depends on the seriousness of the charge.
What is the limitation period for criminal charges in NSW?
Section 179(1) of the Criminal Procedure Act 1986 (NSW) states that the time limit for the commencement of proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed.
There are a number of exceptions to this time limit. These are:
- Where another Act or law specifies another limitation period within which proceedings must be commenced.
- An indictable offence that is being dealt with summarily.
- An offence involving the death of a person that is or has been the subject of a coronial inquest. In these circumstances, proceedings for a summary offence must be commenced not later than 6 months after the conclusion of the inquest, or not later than 2 years from when the offence is alleged to have been committed, whichever occurs first.
- To a back-up summary offence if the District Court determines an appeal against a conviction or finding of guilt by the Children’s or Local Court for the related indictable offence by setting aside the conviction or finding of guilt. In such circumstances, proceedings for a back-up summary offence must be commenced not later than 6 months after the determination of the District Court appeal against the conviction or finding of guilt by the Children’s or Local Court for the related indictable offence by setting aside the conviction or finding of guilt.
What is a Summary Offence?
A summary offence is defined as an offence which is not indictable or not being capable of dealt with on indictment. As a result, summary offences are considered to be minor in nature compared to more serious offences such as indictable and serious indictable offences. Examples of a summary offence include:
- Certain types of traffic offences such as drink and/or drug driving offences.
- Minor drug possession charges.
- Offensive language or conduct.
- Obscene exposure.
- Possession of a knife in a public place without reasonable excuse.
- Certain offences relating to intoxicated persons failing to move on when directed from a licenced premises or public place.
What other limitation periods exist for criminal charges in NSW?
There are instances in which another Act or law specifies another limitation period within which proceedings must be commenced. For example, offences under the Firearms Act 1996 (NSW) dealt with summarily in the Local Court of NSW are required to be commenced within two years on which the offence was alleged to have been committed. Similarly, offences attracting a penalty notice (fine or infringement notice) as opposed to a Court Attendance Notice must be issued within 12 months of the date of the offence.
Practical Considerations
The commencement date of a proceeding is important when determining whether a charge has been laid within the specified timeframe. Sometimes there is a delay between the filing of a Court Attendance Notice and service of the Court Attendance Notice upon an accused person. The commencement of the proceedings is taken to have occurred at the time the Court Attendance Notice has been filed, and not when it has been served.
There can be situations which arise where a client is charged with a more serious offence which is capable of being proved and negotiations may result in the consideration of a lesser charge being preferred in the context of plea negotiations. If such possibilities are discovered well after the commencement of proceedings against an accused person, it may be impossible for the Police to lay a lesser charge owing to the applicable time limits, thereby preventing the possibility of negotiating a plea of guilty to a more appropriate or lesser charge.
If you have been issued with a Court Attendance Notice or infringement, it is important that you obtain legal advice from our expert criminal and traffic defence lawyers. Issues such as whether a charge has been laid in time, whether it has been pleaded or laid correctly, whether a charge is capable of being proved as well as the potential applicable penalties are all matters which need to be considered.
Why Choose Australian Lawyers and Advocates?
If you are facing a criminal charge, our team of highly experienced criminal defence lawyers can help. We will carefully consider your case and provide expert advice on your options.
Our team of expert criminal defence lawyers have a proven track record of securing successful outcomes for our clients in criminal law matters. Our results speak for themselves.
If you require expert representation in a criminal law matter, don’t delay. Contact Australian Lawyers and Advocates today.
The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law or traffic law matters further.
