Limitation periods in NSW

Limitation periods in NSW

As per s 179 of the Criminal Procedure Act 1986 (NSW), proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed.

Summary offences

Summary offences are offences which are not indictable.[1] It is an offence for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more than 2 years,[2] and an offence that is not listed in Table 1 or 2 to Schedule 1.

Limitation

Per s 117(1)(b) of the Road Transports Act 2013 (NSW), the maximum penalty for driving a motor vehicle on a road negligently which occasions grievous bodily harm is 20 penalty units or imprisonment for 9 months or both, for first offences, or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence). However, s 202 of the Road Transports Act 2013 (NSW) captures this as an exception to the 6-month statute of limitations rule.

Exceptions to the limitation period

According to s 202 of the Road Transport Act, and clause 165 of the Road Transport (General) Regulation 2021, the limitation period becomes 2 years rather than 6 months if they pertain to the following offences:

From s 202 of the Road Transport Act 2013 (NSW)

  1. section 49(1) [Obtaining driver licence by false statements],
  2. section 54(1)(b), (3)(b), (4)(b), (5)(a)(ii) and (5)(b)(ii) [Driving or making licence applications while disqualified or licence suspended or cancelled],
  3. section 69(1)(a) and (2)(a) [False statements],
  4. section 110, 111, 111A or 112, to the extent that the offence arises out of an incident in relation to which the person was charged with an offence against section 117(1) and the driving occasioned death or grievous bodily harm [Presence of prescribed concentration of alcohol in person’s breath or blood; Presence of certain drugs (other than alcohol) in oral fluid, blood or urine; Presence of both prescribed illicit drug in person’s oral fluid, blood or urine and prescribed concentration of alcohol in person’s breath or blood; Use or attempted use of a vehicle under the influence of alcohol or any other drug],
  5. section 117(1) if the driving occasioned death or grievous bodily harm,
  6. section 145 [Offences involving death, injury or damage resulting from unsafe loads],
  7. section 146 [Offence of failing to stop and assist after impact causing injury].

From the Road Transport (Vehicle Registration) Regulation 2017 (NSW)

  1. clause 68(8)–(10) [Examiner’s authorities],
  2. clause 69(4) and (6) [Proprietor’s authorities],
  3. clause 85(5) [Compliance certificate issuance],
  4. clause 93 [Record keeping requirements].

Other offence

To determine whether your action was commenced within the limitation period:

  1. Determine whether your offence was a summary offence. Your offence is a summary offence if:
    1. The maximum penalty is two years imprisonment or less, AND
    2. No statute permits or requires an indictment, AND
    3. The offence is not listed in the tables of Schedule 1 of the Criminal Procedure Act.
  2. If it is a summary offence, your limitation period is 6 months. Then, calculate the last day of the limitation period by adding 6 months to when the proceedings were commenced
  3. If it falls under an exception listed above, then your limitation period is most likely 2 years. Calculate the last day of the limitation period by adding 2 years to when the proceedings were commenced
  4. If it is not a summary offence, then it is an indictable offence, and has no limitation period.

Reach out to me if you any questions, it can be a tricky area and one which can mean charges cannot proceed.


[1] Criminal Procedure Act 1986 (NSW) s 3.

[2] Criminal Procedure Act 1986 (NSW) s 6(1)(c).