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Monday, 31 August 2009

Summary time limits in the Children's Court

With the arrival of the Criminal Procedure Act 2009, the time limit for the filing of a charge against a child for a summary offence will fall from twelve months to six.

The relevant provision can be found at s 376 of the Criminal Procedure Act. This section inserts a new Part 5.1A into the Children, Youth and Families Act 2005. Charges can be laid after the six month time limit only if the accused consents (after having received legal advice) or the Court exercises its discretion under s 344C.

Although this change might appear to have the potential to influence many cases, in reality the impact will be small. The change applies only to summary offences. Most summary offences that bring children under the law's watchful eye can be expiated by way of infringement notice these days.

If a notice has been issued but not paid, the Victoria Police and many other enforcement agencies register their unpaid fines under the Children and Young Persons Infringement Notice System (CAYPINS). The CAYPINS procedure is set out at Schedule 3 of the Children, Youth and Families Act 2005 . It's distinct from the traditional charge and summons procedure, and is modelled on the enforcement processes of the Infringements Court (formerly called the PERIN Court).

Where the offence is not able to be expiated by payment of a penalty notice or instructions are given to contest the charge, care must be taken if drawing the prosecution's attention to the expiry of the time limit for the initiation of process. Many summary offences have an indictable equivalent, either in statute or common law.

For example, charges of marking graffiti under s 5 of the Graffiti Prevention Act 2007 are commonplace. In most cases, where the elements of this offence can be made out, an indictable charge of damaging or destroying property under s 197 of the Crimes Act 1958 could also be proven. Similarly, if an offence of common assault under s 23 of the Summary Offences Act 1966 is statute-barred, all of the ingredients for an indictable common law assault would typically be present.

Though a court might refuse an application to lay additional charges during the running of a contested hearing (say, at the no case submission stage of proceedings), this is by no means certain. Leaving abuse of process arguments to one side, it's possible that taking exception to the timeframe could leave an accused facing more serious charges than they started out with.

1 comment:

MadMax said...

Maybe its only be a small number of cases that this effects but the ones that are could be important.

Lots of driving offences like drink driving and dangerous driving are summary offences.

The police will find themselves losing at court if they are not on top of this.