To:      Attorney General of the Commonwealth

Re:      Advice on introducing a Statute of Limitations in relation to the prosecution of all Indictable offences.

 

INTRODUCTION 

A Statute of Limitations is an enactment in a legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated.

The purpose of a Statute of Limitations or its equivalent is to ensure that the possibility of punishment for an act committed long ago cannot give rise to either a person's incarceration or the criminal justice system's activation. Social justice as enacted through law says that lesser crimes from long ago are best left alone so as not to detract attention from more serious crimes.

Reasons for a Statute of Limitations are that, over time, evidence can be corrupted or disappear, memories fade, crime scenes are changed, and companies dispose of records.

In Australia, criminal offences are prosecuted on behalf of the Crown, and there is a legal maxim nullum tempus occurrit regi, meaning, time does not run against the Crown. So, the Crown (usually represented by a State) can initiate a criminal prosecution against anyone for such crimes at any time they like.

SUMMARY OFFENCES

In New South Wales, section 179 of the Criminal Procedure Act 1986 (NSW) states the time limit for commencement of summary proceedings must be commenced not later than 6 months from when the offence was alleged to have been committed.

CONSIDERATION OF LITERATURE & AUTHORITIES

“Justice and the Prosecution of Old Crimes: Balancing Legal, Psychological, and Moral Concerns” by Daniel W. Shuman, JD and Alexander McCall Smith, LLB, PhD

This book asks how we as individuals and as a society ought to deal with crimes committed in the distant past. Whether such crimes have targeted individuals, such as sexual abuse victims, or groups, such as war crime victims, the authors argue that key commonalties must be considered to assure just action. To reveal commonalties, the authors explore the philosophical basis for punishment, the accuracy of old memories, the impact of delayed prosecution on victims, the role of statutes of limitations in constraining prosecution, and the rationale for pardon and amnesty.

Agency and responsibility on the part of the wrongdoer are weighed against forgiveness and mercy on the part of the victim. Concrete examples drawn from domestic and international law expose various psychological, moral, and legal concerns that must be balanced in the ultimate decision to prosecute or forgive past injustices.

The rule that the state may not pursue a criminal wrong after the lapse of some time is not a feature of all legal systems.[1] In the Roman law-based jurisdictions of continental Europe and Latin America, the state has always accepted time limits for bringing prosecutions. In the United States, in spite of the English common law background of American law, the principle of limitation was accepted at a very early stage and has been applied ever since Federal crimes have been subject to a limitation period since 1790.[2]

The precise periods chosen for limitation law vary. In the United States, homicide -both murder and manslaughter are almost invariably exempted from the application of statutes of limitations and can be prosecuted at any time. For crimes other than homicide, it is usual to find a distinction made between felonies and misdemeanors, with a longer limitation period applied to felonies.[3]

The issue of limitations has also proved to be important in relation to international crimes, particularly war crimes or crimes against humanity, that is, murder, enslavement, starvation, or deportation against citizens on racial, religious, political, or national grounds.[4]

Tardy war crime prosecutions were also undertaken in Australia, where a number of people suspected of participating in atrocities during World War II had emigrated after 1945. Australia, like the United Kingdom and Canada, has no statute of limitations in criminal matters. After the publication of a government report that concluded that a substantial number of unpunished war criminals were living in the country, the then Attorney General announced in Parliament that the government was convinced that “justice must be done, no matter how much time has passed since the events in question.” This statement was followed by the creation of a task force charged with investigating these cases and presenting evidence to prosecutors. A number of trials ensued, but these were markedly unsuccessful from the prosecution point of view, largely because of the difficulty of obtaining reliable evidence after the passage of so many years but also because of problems associated with prosecuting older defendants. In two of the trials, the ill health of the defendant materially affected proceedings, leading to the abandonment of one trial that of Heinrich Wagner after the accused had a heart attack.[5]

The issue of delay was raised in one of these Australian prosecutions, DPP v Polyukhovich (Supreme Court of South Australia, Dec. 22, 1992).The 72-year-old defendant in this case was charged with the murder of a number of civilians in the Ukraine between 1941 and 1943. His defence relied on a number of arguments, including the proposition that a 51-year delay in prosecution was grounds for non-prosecution. This issue was directly addressed by the Supreme Court of South Australia, which acknowledged that such a delay was “enormously long” and “of unprecedented length” but concluded that in such a case the court should balance the interests involved to reach a conclusion on whether the delay was unfair to the defendant. In this case, the court did not conclude that the delay made a fair trial impossible. The trial, however, eventually did not proceed because of inadequate evidence.[6]

Advantages of having Statute of Limitations

The most powerful of these advantages is that bringing a late prosecution deprives the defendant of the right to a fair trial. The defendant is unable to marshal the relevant evidence against charges relating to events so far in the past.[7]

Some aspects of the workings of human memory are not fully understood or are contested, there is wide agreement that the effect of time on memory is, on the whole, deleterious. If the defendant’s memory of an offense and the events surrounding it has disappeared, then the ability to offer testimony, to identify other potential witnesses, and to assist in preparing cross-examination of prosecution witnesses is seriously compromised.[8]

It may be difficult to locate defense witnesses, who may be hard to trace or who may have died. This may affect prosecutors, too; their task of preparing a prosecution of old crimes may be much more time consuming given the difficulties in assembling testimony. From the prosecutor’s point of view, then, the limitations rule may have its attractions. In particular, it may allow them to exclude cases that are likely to place an inordinate strain on their time and resources.[9]

An even longer period of delay was involved in the Grundjambe case, which came before an Alberta court in 1996. This charge concerned events alleged to have taken place more than 40 years earlier. The complainant alleged that in 1954, when she was 11, the defendant, who was then 16, had sexually assaulted her. The defendant contended that it was impossible to defend himself properly against this charge because the destruction of employment records made it impossible for him to establish his alibi. The death of two material witnesses the defendant’s mother and the complainant’s mother denied the defendant evidence in which the complainant’s mother was alleged to have accused another person of the offense. In this case this was sufficient to satisfy the court that it would have been unfair to the defendant to proceed with the trial in the face of these substantial obstacles in the way of his defending himself.[10] The Grandjambe case gives us cause to reflect on the dangers of prosecuting substantially delayed allegations of sexual abuse.[11]

On balance, the case for criminal statutes of limitation is compelling. There comes a point at which the past should no longer dictate our relationships with one another. Forgiveness has a part to play. From a practical point of view, limitations ensure that the courts are occupied with recent business to which they can apply satisfactory standards of proof. Limitations keep in check the injustices and unfairnesses that can result if old and unreliable evidence is used. The real policy question then is that of deciding the period of limitations to be applied. This depends on the seriousness of the crime. Sexual offenses are traumatic and should be placed alongside other traumatic offenses such as murder, torture, and kidnapping but should not be unduly privileged.[12]

The prosecution of old crimes presents special challenges for the criminal justice system. In itself, the passage of time in the prosecution of old crimes exacerbates the problem, present in all cases, of ascertaining the truth. Evidence is perishable, and with the passage of significant time, both physical and testimonial evidence are inherently less available. Thus, the prosecution of old crimes often presents prosecutors with special investigatory challenges.[13]

Disadvantages of having Statute of Limitations

While not accounting for different individuals’ rates of memory decline, statutes of limitations operate as arbitrary limits on memory problems. They presume that the passage of the relevant limitations period reflects the normal decline in the reliability of memory.[14]

Relying on inherently perishable proof in the prosecution of these crimes does not mean that justice cannot be done. Instead, it means that we must proceed with great care. Because of the nature of the crimes at issue, we have a duty to see that the criminal justice system does not forget these cases. Because of the nature of the problems of proof in these cases, we have a duty to see that their investigation and proof meets the most rigorous scientific and evidentiary standards. Justice demands that we zealously pursue both of these goals.[15]

 “Conviction of the Innocents” by Chester Porter QC

In Europe, many countries had, at the end of the Second World War a twenty-five-year or shorter limitation period of for murder. In most of these countries, the law was amended in the case of war crimes to exclude the limitation period.[16]

Advantages of having a Statute of Limitations

There are a number of arguments in favour of time limitations for criminal charges.

The main argument is that the recollection of witnesses after many years is unreliable. In the McDermott Royal Commission in 1951, in which Chester Porter QC appeared for Frederick McDermott, witnesses were trying to remember events of 1936. They were hopeless trying to recall events fifteen years before. There were conflicting versions of the colour of the car McDermott was in as a passenger.[17]

If a charge is made ten, twenty or thirty years after the event, the evidence of the Crown witnesses will of necessity strain memory beyond the limits of reliability. But the defence is in a hopeless position. To reconstruct one’s movement after ten years is beyond the ability of most defendants[18].

Without the above details, it is a matter of common sense that the longer the charge is delayed, the more difficult it is to have a fair trial. Especially in sexual-assault and murder cases, but also in traffic cases causing injury or death.[19]

Disadvantages of having a Statute of Limitations

Often it is said that punishment of the offender is needed in order that the victim may have ‘closure’.[20]

There are, of course, some crimes that are so terrible that the offender should be confined either for a very long period or for his or her lifetime, in order to protect the public against further offences. For offences such as serial murders or child murders, it may well be that there should be no time limit[21].

Advantages of having a Statute of Limitations

Mr Porter believes there is a strong case limitation for other offences, partly because long-delayed criminal charges are next to impossible to try fairly, and partly because after many years, a criminal charge may be unfair to an offender who has successfully lived down his or her past.[22]

There have been long-delayed sex charges against defendants over eight years of age. Victims, particularly children, may, for numerous reasons, keep such matters to themeslves.[23]

In Mr Porter’s opinion there is a very strong argument for a twenty-five-year limitation period for murder, and a ten or fifteen-year limitation period for all other offences – subject, however, to the power of the Supreme Court to extend these periods where the circumstances are exceptional and it is reasonably possible to have a fair trial of the particular alleged offence[24].

Such a reform of the law would have the further advantage of saving valuable police time in investigating very old alleged offences. The power of the Supreme Court would cover the exceptional cases. In the law there are always exceptional cases, and it is wise to give the courts power to deal with them[25].

“Child Sexual Abuse And Criminal Statutes Of Limitation: A Model For Reform” Washington Law Review Vol. 65:189, 1990 by Jessica E. Mindlin

Disadvantages of having a Statute of Limitations

Statutes of limitation present a formidable obstacle to the successful prosecution of perpetrators of child sexual abuse, and this article proposes a model legislative amendment to toll states' criminal statutes of limitation in the United States.[26]

Perpetrators of child sexual abuse escape prosecution for their acts when the abuser uses threats and coercion to prevent the victim from reporting the offense until after the statute of limitation has expired, or when the victim is too young to report the abuse within the statutory period.[27] An example of this is as follows:

The sexual contacts began when Susan was five years old and her brother Tom was seventeen. In the next three years, the abuse progressed from touching to oral sex to intercourse. Although Tom stopped having intercourse with Susan when she was ten, other acts of abuse and threats of harm continued until she was fourteen. Her brother often threatened to shoot her if she told anyone about the abuse. Frightened, Susan maintained her silence. Eventually she told her parents about the abuse, but they merely punished her for lying. When Susan was seventeen she learned that Tom also had abused her younger sisters. Distressed, she told a school counselor about her abuse and a complaint was filed with local police. Tom was prosecuted and convicted. His conviction was overturned, however, because the statute of limitation had expired.[28]

Generally, these legislatures have two motives for permitting courts to toll child sexual abuse statutes of limitation. First, legislators believe that children under a certain age need additional time to disclose the abuse. Second, legislatures recognize that child sexual abuse is an offense serious enough to warrant laws which facilitate prosecution of offenders.[29]

Courts in several states in the United States have fashioned judicial exceptions to statutes of limitation in criminal cases of child sexual abuse. These courts employ two approaches. Some state courts have applied the "continuing crime" doctrine. Other state courts have extended existing "secret manner" or "concealment" statutes to cases of child sexual abuse.[30]

State legislatures could greatly increase or even eliminate the criminal statutes of limitation for child sexual abuse, and thereby ensure that prosecution of offenders would not be time-barred. This approach would permit the state to delay pursuing criminal charges against an alleged offender for an indefinite period of time or until the victim was no longer legally a minor. Greatly increasing or eliminating a statute of limitation effectively ameliorates the harsh effects of statutes of limitation.[31]

Advantages of having a Statute of Limitations

Statutes of limitation are designed to "promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Statutes of limitation provide predictability for both the defendant and the prosecution by prescribing the time period beyond which "there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced." Finally, it is argued that statutes of limitation provide defendants with repose, by limiting defendants' exposure to criminal prosecution to a fixed period of time. For all these reasons, extensions of statutes of limitation should be closely tailored to address specific needs. Thus, eliminating or greatly increasing the limitation period for all sexual offenses involving a minor is not the best solution to the problem of time-barred prosecutions.[32]

CONSIDERATION OF THE PROSECUTORIAL GUIDELINES

As there is no Statute of Limitations in Australia for Indictable offences, Prosecutors in New South Wales are guided by the NSW Office of Director of Public Prosecution Guidelines[33] on whether or not to prosecute an old crime. The relevant guildelines in this respect and in light of the issues discussed above are:

4  - The Decision to Prosecute

19  - Victims of Crimes; Vulnerable Witnesses; Conferences

26  - Witnesses

27  - Evidence

33  - International Guidelines

A consideration of these guidelines, will narrow the issues for on whether to prosecute an old crime.

CONCLUSION

There are advantages and disadvantages in introducing a Statute of Limitations in Australia. The above provides that advantages outweigh the disadvantages. Various commentators have propounded a call for a qualified Statute of Limitations in Australia, in which some less serious indictable offences have a limitation period of less than the most serious indictable offences.

From the view of a prosecutor in prosecuting old crimes, it is my opinion that the current regime with the Prosecutorial Guidelines has been a more than adequate system for our society. Accordingly, Australia should not adopt a Statute of Limitations for indictable offences.



[1] Schuman & McCall Smith, “Justice and the Prosecution of Old Crimes” July 2000, at 56.

[2] Ibid.

[3] Ibid.

[4] Id at 57.

[5] Ibid.

[6] Ibid. See also Polyukhovich v Commonwealth ("War Crimes Act case") [1991] HCA 32; (1991) 172 CLR 50. The majority (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ) held that Section 9 of the War Crimes Act 1945, as amended, was not invalid in its application to the information laid by the second defendant against the plaintiff.

[7] Id at 60.

[8] Id at 61.

[9] Ibid.

[10] Id at 61-62.

[11] Id at 62.

[12] Id at 71.

[13] Id at Chapter 6 at 97.

[14] Id at 61.

[15] Id at Chapter 6 at 97.

[16] “Conviction of the Innocents” Chester Porter QC, 2007 at Chapter 14.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] “Child Sexual Abuse And Criminal Statutes Of Limitation: A Model For Reform” Washington Law Review Vol. 65:189, 1990 Mindlin at 189.

[27] Ibid.

[28] Adapted from State v. Shamp, 422 N.W.2d 736 (Minn. Ct. App.), rev'd 427 N.W.2d 228 (Minn. 1988) (overturning conviction for sexual abuse because charges were brought after statute of limitation had expired).

[29] Id at 197-198

[30] Ibid.

[31] Id at 201.

[32] Id at 201-202.

[33] http://www.odpp.nsw.gov.au/guidelines/guidelines.html

If you seek further legal advice on this issue or need a lawyer, please do not hesitate to contact John Fasha by email to john.fasha@lexfori.com.au or by telephone (02) 9723 8793.