Posted on December 16, 2015 by Carlo Zoppo

Statutory time limitation for a prosecution leads to dismissal of charges after defendant pleads guilty

The recent decision of the Land and Environment Court (Court) in Willoughby City Council v Screnci [2015] NSWLEC 192 (Screnci) provides a salient reminder of the importance of statutory limitation periods imposed for the commencement of criminal prosecutions. Such limitations must always be borne in mind when investigating an offence under the Environmental Planning and Assessment Act 1979 (EPA Act) or any other offence that may lead to a prosecution.

In this case the defendant Mr Screnci he had entered a plea of guilty to the charges under  s125 of the EPA Act.The Court had heard submissions on penalty over three days.  While the parties were  waiting for the Court to hand down its penalty, Mr Screnci approached the Court requesting the Court not to hand down its penalty but consider a plea in bar that was then raised by Mr Screnci claiming that the prosecution was brought out of time, that is contrary to the statutory time limitation period set out in s127.

The EPA Act imposes a statutory time limitation on the commencement of criminal prosecutions.

Section 127 of the EPA Act provides:

(5)  Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.

(5A)  However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence  first came to the attention of:

(a)  in relation to proceedings for an offence instituted by or with the consent of the Secretary or a member of staff of the Department—any investigation officer who is a member of the staff of the Department, or

(b)  in relation to proceedings for an offence instituted by or with the consent of a council or a member of staff of a council—any investigation officer who is a member of the staff of that council, or

(c)  in relation to proceedings for an offence instituted by any other person—any investigation officer.

In this subsection, investigation officer means an investigation officer within the meaning of Division 1C, whether or not the person has the functions of an investigation officer in connection with the offence concerned.

In Screnci,  Justice Craig examined the current authorities on the application of statutory limitation periods and found that in the circumstances of the matter the Council had not established that the prosecution had been commenced within the statutory time limitation period. Craig J found that it did not matter that the defendant entered a plea of guilty to the charges as the Court could not lawfully proceed to hear and determine the matter that was commenced outside the statutory limitation period.

The Court considered s127(5) of the EPA Act that applied to the Council at the relevant time and not s127(5A) that commenced on 31 July 2015. Section 127(5A) now allows Councils to commence  proceedings within 2 years after the date on which evidence of the alleged offence  first came to the attention of an investigation officer employed by the Council.

The takeaway messages from this judgement are:

  1. a prosecutor bears the onus of establishing beyond a reasonable doubt that the proceedings have been commenced within the statutory time limitation period;
  2. for offences where the  alleged offence is a continuing offence (that is an offence that has been committed over a period of time), the statutory time limitation period dates from the date on which the offending conduct concluded;
  3. once the statutory time limitation point is raised, the Court must give effect to it and it is not open to the Court to allow the prosecution to continue even if the defendant does not seek to invoke the provision.

In the proceedings it was accepted by the parties that the new statutory time limitation period that is available for proceedings brought by Council (s127(5A)), does not have retrospective operation, that is it does not revive the power to commence proceedings that were statute barred prior to the commencement of s127(5A).

Section 127(5A) provides Council’s with some flexibility however it must be borne in mind that the statutory time limitation clock starts running from the time any investigation officer (who is a member of the staff of that council ) first becomes aware of evidence of the alleged offence. 

It does not matter that the Investigation Officer that first becomes aware of evidence of a contravention is not involved in the investigation of a particular matter or works in a different section of Council. The clock starts running when any Council Investigation officer first becomes aware of evidence.