COVID-19 – Update – Prosecutions and Limitation Periods (8 April 2020)


Due to the impact of COVID-19, many Courts are deferring first mention dates for prosecutions until much later in the year, some as far out as September 2020, in the hope that this will help limit the spread of COVID-19.

As a result, many local governments may not be considering commencing prosecution proceedings until later.  However, it is important that local governments keep an eye on limitation periods relevant to prosecutions.

When is a prosecution commenced?

Generally speaking, an ‘authorised person’ is required to commence a prosecution.  With respect to local governments, an ‘authorised person’ is generally an employee of local government who is authorised in writing to commence a prosecution.  Also see section 20 of the Criminal Procedure Act 2004.

In other words, a prosecution is commenced when a Prosecution Notice is signed by an authorised person.

As to the formal requirements of a Prosecution Notice, regulation 8 of the Criminal Procedure Regulations 2005 prescribes that a Prosecution Notice must be in the form of Form 3 (contained in Schedule 1) which makes provision for the date of signing to be inserted.

It is the date on which the Prosecution Notices is signed that is relevant in determining when a prosecution is commenced.

The combination of these provisions means that prosecution notices can be signed now, resulting in the commencement of a prosecution now, without having to wait until a time closer to the first mention date, or risking the expiry of a looming limitation period.

Naturally, the courts will not be able to deal with matters prior the first mention date, but by having the prosecution and court hearing notices signed now, the documents can be filed with the courts and served on an accused later, and at a time closer to the first mention date.

This will enable local governments to preserve their cause of action, without risking the expiry of a looming limitation period.

Please do not hesitate to contact us, should you require assistance in identifying the relevant limitation periods in your enforcement matters.

Anne Wood – Partner – awood@kottgunn.com.au

Carol Hamilton – Associate – chamilton@kottgunn.com.au

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.