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2.6 - Time Limits

  1. The CPA 2009 sets time limits for parties and judicial officers to complete various stages of the criminal process. The following sections contain tables that summarise these time limits.

    Commencement of proceedings

  2. There are currently no general limitation periods for commencing proceedings for indictable offences in Victoria. This freedom from limitation extends to indictable offences heard and determined summarily (CPA 2009 s7(2)).
  3. Previously, there have been limitation periods in relation to some sexual offences. These have been retrospectively abolished, and the limitation period no longer applies to offences committed at the time the limitation period applied: CPA 2009 s7A.
  4. There is also a two year limitations period under the Occupational Health and Safety Act 2004, for proceedings instituted by Victorian Workcover Authority. However, the Director of Public Prosecutions can institute proceedings at any time, or may authorise the Authority to do so at any time. When deciding whether to institute proceedings after the two year limitations period, or to authorise the Authority to do so, the Director does not need to provide procedural fairness to the accused and the decision is not subject to judicial review (DPP v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81; [2012] VSCA 300; Occupational Health and Safety Act 2004 ss130, 132).
  5. Proceedings for summary offences against the law of Victoria must generally be commenced within one year of the date of the offence for adult offenders. This rule may be adjusted by specific legislation for particular offences and compliance may be waived where both the accused and either the DPP or a Crown Prosecutor consent (CPA 2009 s7(1). See, e.g., Fair Trading Act 1999 s142 (3 years); Taxation Administration Act 1997 s134 (3 years); First Home Owners Grant Act 2000 s52 (3 years); Motor Car Traders Act 1986 s82C (3 years); Sex Offenders Registration Act 2004 s48 (No limitation period); Infringements Act 2006 ss55, 56 (6 months); Road Safety Act 1986 s77A (2 years)).
  6. Sections 38 and 39 of the Fines Reform Act 2014 can also operate to extend the time for bringing a summary proceeding. Where Fines Victoria decides to cancel an infringement notice, the enforcement agency must, within 90 days, decide whether to take no further action, issue a warning, or commence proceedings by charge-sheet and notify the accused of that decision. Where the infringement agency decides to commence proceedings by charge-sheet, it must do so within six months of notifying the accused of the decision to charge. This extended time limit allows a proceeding to be initiated even over one year since the alleged offence (Fines Reform Act 2014 ss 38, 39; Gebrehiwot v Mccutcheon [2020] VSC 109).
  7. Chapter 2 – Commencement of Proceedings explains three ways in which a proceeding may be commenced by charge-sheet. For the purpose of the one year time limit, it is the date of commencement which is relevant and not the date of hearing for the charge (Djime v Le [2016] VSCA 202 at [42]-[53]).
  8. The time limit for commencing proceedings for a summary offence against an offender who is a child is 6 months. This limit may be extended to up to 12 months from the date of the offence by the court it is considers it appropriate (Children, Youth and Families Act 2005 s344A, s344C).
  9. When considering whether to extend time for commencing proceedings, the court must consider:

    (a) the age of the child; and

    (b) the seriousness of the alleged offence and the circumstances in which it is alleged to have occurred; and

    (c) whether the delay in commencing the proceeding was caused by factors beyond the control of the applicant; and

    (d) the length of the delay; and

    (e) any other matter that the Court considers relevant (Children, Youth and Families Act 2005 s344C).

  10. The court may also allow police to commence a proceeding for a charge of a summary offence against a child outside the 6 month limit if the child and a police officer of at least the rank of sergeant both consent. The child may only give consent after receiving legal advice and must give his or her consent in writing. The court must be satisfied that the child has received legal advice and must adjourn proceedings to enable the child to obtain legal advice (Children, Youth and Families Act 2005 s344A).
  11. For Commonwealth offences, the limitation period is determined by the maximum penalty. The following tables indicate the limitation periods for proceedings against an individual and a corporation (Crimes Act 1914 (Cth) s15B):

    Table 1: Limitation periods for proceedings against an individual

    Maximum term of imprisonment

    Greater than 6 months

    All other cases

    Proceedings may be commenced

    At any time

    Within one year of the alleged offence

    Table 2: Limitation periods for proceedings against a corporation

    Maximum fine for a first offence

    Greater than 150 penalty units

    All other cases

    Proceedings may be commenced

    At any time

    Within one year of the alleged offence

  12. The limitation period for an individual who aids or abets an offence by a corporation is the limitation period that is applicable to proceedings against the corporation (Crimes Act 1914 (Cth) s15B).
  13. Specific Commonwealth legislation may extend the above limitation periods for particular offences unless the limitation was created before the commencement of the Crimes Act 1914 (Cth) (Crimes Act 1914 (Cth) s15B. E.g. Customs Act 1901 (Cth) s249 (5 years); Taxation Administration Act 1953 (Cth) s8ZB (No limitation period)).
  14. Provisions that allow offences to be heard and determined summarily will often impose a lower maximum penalty on summary conviction. This reduced maximum penalty does not affect the limitation period for the offence. The maximum penalty for the purpose of the limitation period is the maximum penalty attaching to the offence itself and does not depend on the mode of prosecution (Re Burley (1932) 47 CLR 53).

    Fast track listing of summary family violence hearings

  15. Since 1 December 2014, the Magistrates’ Court has progressively rolled out a fast-track listing process for summary hearings involving offences arising out of family violence. The fast-track listing process involves the following timelines:

    Filing to first listing for bail matters (the time to first listing from the release of an accused on bail)

    1 week

    Interview to first listing for summons’ matters

    4 weeks

    First listing to second listing (a summary case conference to be conducted on or before the second listing)

    4 weeks

    Second listing to contest mention

    4 weeks

    Contest mention to contested hearing

    4 weeks

  16. This fast-track process applies at the following venues in accordance with the listed practice note:

    Court

    Practice Note

    Date of commencement

    Dandenong

    No 10 of 2014

    1 December 2014

    Broadmeadows and Shepparton

    No 7 of 2015

    3 August 2015

    Ballarat and Ringwood

    No 8 of 2015

    12 October 2015

    Frankston and Moorabin

    No 3 of 2016

    1 May 2016

    Bendigo and Geelong

    No 8 of 2016

    1 September 2016

    Neighbourhood Justice Centre

    No 12 of 2016

    2 January 2017

    Heidelberg and Melbourne

    No 13 of 2016

    2 January 2017

    Sunshine and Werribee

    No 7 of 2017

    1 June 2017

    Latrobe Valley

    No 11 of 2017

    1 September 2017

    Mildura, Horsham and Warrnambool

    No 1 of 2018

    1 March 2018

    Time Limits in Committal Proceedings

  17. The following table shows the time limits under which a committal proceeding operates.

    Table 1: Committal proceedings time line

    Event

    Time line

    Relevant section of CPA 2009

    Date fixed for filing hearing

    Within 7 days of the charge-sheet being filed, if the accused has been arrested and is in custody or on bail; or

    Within 28 days of the charge-sheet being filed, if a summons to answer the charge was issued

    s102

    Service of Hand-up brief

    At least 42 days before the committal mention hearing

    s108

    Service of Plea Brief

    Within the time allowed for service of the Hand-up brief

    s116

    Filing of Hand-up or Plea brief and service on the DPP (if relevant)

    Within 7 days of service on the accused

    s109, s116

    Filing of case direction notice

    At least 7 days before the committal mention hearing

    s118

    Holding of committal mention hearing

    Within 3 months of the commencement of proceedings, if the matter relates to a sexual offence; or

    Within 6 months of the commencement of proceedings, in all other cases

    s126

  18. The case direction notice must be filed jointly by the accused and either the DPP or the informant, if a hand-up brief has been served (CPA 2009 s118).
  19. If the court fixes another date for the committal mention, it may order the accused and the DPP or the informant to jointly file another case direction notice at least 7 days before the new date or within any other period fixed by the court (CPA 2009 s118).
  20. The Magistrates’ Court may fix a longer period for holding a committal mention if it is in the interests of justice. The Court must consider the seriousness of the offence and the reason why a longer period is necessary when determining whether to extend the period. An application for a longer period for holding a committal mention hearing must be in Form 34 of the Magistrates’ Court Criminal Procedure Rules 2019 (CPA 2009 s126; Magistrates’ Court Criminal Procedure Rules 2019 r61).
  21. The time limits for holding a committal mention hearing do not apply if:
  22. If the committal mention hearing has not been held within the period specified in the legislation or as extended by the court, the court may, on application of the accused, order that the accused be discharged (CPA 2009 s126).

    Time Limits for Pre-Trial and Trial procedures

  23. The following table shows the time limits that apply to pre-trial and trial procedures.

    Table 1: Pre-trial and trial proceedings time line

    Event

    Time line

    Relevant section of CPA 2009

    Filing of indictment

    Within 14 days of committal for trial, if the accused is committed for trial in respect of a sexual offence against a child or cognitively impaired person; or

    Within 28 days of committal for trial, if the accused is committed for trial in respect of a sexual offence against a complainant who is not a child or cognitively impaired person; or

    Within 6 months of committal for trial, in all other cases

    s163

    Service on accused and filing of:

    summary of prosecution opening; and

    notice of pre-trial admission

    At least 28 days before the day on which the trial is listed to commence

    s182

    Service on prosecution and filing of:

    defence response to prosecution opening; and

    defence response to notice of pre-trial admissions

    At least 14 days before the day on which the trial is listed to commence

    s183

    Service of expert witness’ statement by accused (if relevant)

    At least 14 days before the day on which the trial is listed to commence

    s189

    Commencement of trial for non-sexual offences

    Within 12 months of the day on which the accused was committed to stand trial; or

    Within 12 months of the day on which the direct indictment was filed; or

    Within 6 months of the day on which the Court of Appeal orders a retrial

    s211

    Commencement of trial for sexual offences

    Within 3 months of the day on which the accused was committed to stand trial; or

    Within 3 months of the day on which the direct indictment was filed; or

    Within 3 months of the day on which the Court of Appeal orders a retrial

    s212

  24. The 14 day and 6 month time limits for filing an indictment may be extended if the court considers that it is in the interests of justice. The 28 day period may be extended or abridged (CPA 2009 s163, s247).
  25. The time line for filing the summary of prosecution opening, the notice of pre-trial admissions and the defence responses is subject to any contrary order of the court (CPA 2009 s182).
  26. If a trial for an offence other than a sexual offence is scheduled outside the time limits imposed by sections 211 (either initially, or following an adjournment), the Prosecution must apply for an extension of time (County Court Criminal Division Practice Note, PNCR 1-2015, [14]).
  27. The requirement to commence the trial for a sexual offence within 3 months as prescribed by s212 does not apply to a second trial following the discharge of a jury. Under the section, only retrials ordered by the Court of Appeal are subject to the time limit, and not retrials ordered for other reasons (Davis v R [2016] VSCA 272 at [46]).
  28. A trial commences when the accused is arraigned before a jury panel and pleads not guilty. The jury for the trial must be chosen from this jury panel (CPA 2009 s210, s217).[1]
  29. The time limits for the commencement of the trial may be extended if the court considers that it is in the interests of justice (CPA 2009 s247).
  30. An order extending time for the commencement of a trial for a sexual offence must not be greater than 3 months. The Act does not prohibit, however, multiple orders that provide a total extension greater than 3 months (CPA 2009 s247). See County Court Criminal Division Practice Note, PNCR 1-2015, [15] for information on the process of applying for an extension of time.
  31. The County Court will, on its own motion, list an application for an extension of time for each sexual offence currently awaiting trial once a month. A prosecution representative must attend these hearings, while a defendant need not. The Court will grant the extension if it is in the interests of justice to do so (County Court Criminal Division Practice Note, PNCR 1-2015, [15.2]).
  32. The time limits for filing the indictment and commencing the trial are procedural provisions designed to lay down a basic timetable for the commencement of proceedings. The time limits can be amended and extended before or after the expiry of the prescribed periods. The court may even extend time in circumstances that amount to an implied extension of more than 3 months (e.g., extending the period for commencing a trial more than 6 months after the day on which the Court of Appeal orders a retrial). The provisions do not create an accrued right for an accused if the time limit expires , or deprive a court of jurisdiction if an indictment is not filed in time (Keenan v The Queen [2020] VSCA 105, [55]-[67]; R v Harris (No 1) [1990] VR 293; DPP v BDX & Anor (No 2) (2010) 27 VR 536; [2010] VSCA 134; CPA 2009 s247. See also Davis v R [2016] VSCA 272 at [65]).

Footnotes:

[1] - The CPA 2009 changed the existing law on when a trial commences. Previously, the time of commencement of a trial was interpreted in accordance with the purpose of the statute in question. Generally, a trial commenced no later than when the accused was first arraigned on the presentment, regardless of whether the plea was guilty or not guilty. This did not need to be in the presence of the jury panel (see R v Symons [1981] VR 297; R v Talia & Ors [1996] 1 VR 462; R v McNamara (No 2) [1997] 1 VR 257; R v His Honour Judge Hewitt; ex parte Attorney-General for the State of Victoria [1973] VR 484).

Last updated: 15 December 2021

See Also

Chapter 2 – Commencement of Proceedings

2.1 - Charge-Sheet and Indictment

2.2 - Duplicity

2.3 - Joinder of Charges

2.4 - Severance of Charges

2.5 - Summary and Indictable Offences

2.7 - Penalty and offence information