A charge laid too late is a charge the Court has no jurisdiction to hear. The Magistrates’ Manual lists checking the date of an information among a magistrate’s first duties, and a defendant should check it too.
The rule in the Act
(1) Subject to Subsection (2), in the case of a simple offence, unless some other time is limited for laying an information by the law relating to the particular case, the information may only be laid within six months after the time when the matter of the information arose.
(2) The time limit of six months does not apply to an information laid for an offence specified in Schedule 2 to the Criminal Code Act (Chapter 262).
Three things follow. The limit runs from the offence, not from its discovery. It applies to the laying of the information, not to the hearing; a charge laid on day 170 and heard a year later is in time. And it yields to any other Act that sets its own period.
The one-year rule for Summary Offences Act charges
No charge for an offence against any provision of this Act shall be laid in any court one year after the offence took place.
This is a “law relating to the particular case” within section 36(1), so for assault, drunkenness, false pretences, damaging property and the other Summary Offences Act charges the period is a year, not six months. The section was rewritten by the 2018 amendments; the earlier version, which the Magistrates’ Manual describes, was six months. Other Acts creating offences may set their own periods, and the offence-creating provision should always be checked.
No limit for indictable offences
The reasons for a short limit on minor charges are the ordinary ones: memories fade, witnesses move, and a person should not live indefinitely under the threat of a prosecution for something trivial. Parliament has judged that a year is enough for the police to act on a street offence. For serious crime the balance is struck the other way.
Section 36 applies only to simple offences. An information for an indictable offence, whether it proceeds to committal or, for a Schedule 2 offence, to summary trial, can be laid at any time. Subsection (2) says so expressly for Schedule 2 offences, because they are tried under the same Part VII procedure as simple offences and the point might otherwise have been argued. The result is that an assault charged under section 6 of the Summary Offences Act is out of time after a year, while the same facts charged as common assault under section 335 of the Criminal Code are not.
How the six months are counted
(1) In computing time from the happening of an event or the doing of an act, the period is exclusive of the day on which the event happens or the act is done.
(2) If the last day falls on a Sunday or a public holiday, the act may be done on the next day that is not.
| Event | Date |
|---|---|
| Offence committed | 3 March |
| Day one of the six months | 4 March |
| Last day for laying the information | 3 September (or the next working day if a Sunday or holiday) |
When is an information “laid”?
An information is laid when it is presented to a magistrate or, under section 45, to the Clerk. For a summons it may be verbal and unsworn (section 35(2)); for a warrant in the first instance it must be written and on oath (section 35(1)). The date on the information is the date that matters, and section 47(2) requires the served summons to be returned to the Clerk, so the record will show it. If the information is undated or the date is disputed, the Court decides the point on evidence.
What happens if the charge is late
Section 36 says the information may only be laid within the period. A late information is not a defect of form that section 32 cures; it is a charge the Court has no jurisdiction to entertain, and the defendant is entitled to have it dismissed. Because a dismissal under section 162 is a bar to any other information for the same matter, and because the time has passed anyway, that is the end of the prosecution.
The point can be lost by not taking it. A defendant who pleads guilty to a stale charge may find the conviction sustained under section 245 or upheld on appeal because no objection was taken at the hearing. Raise it before the plea.
A different question for civil claims
Section 36 has nothing to do with civil complaints. Their time limits come from the Frauds and Limitations Act 1988, sections 16 to 20, and a limitation defence in the District Court must be raised by notice under section 153. See the special defences. Claims against the State carry the separate six-month section 5 notice requirement.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.