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Norman Waterhouse

Expiation of Offences – An "incident", and the need to put multiple offences on one expiation notice

As our regulatory clients will be aware, an expiation notice can list up to three offences arising from the same incident.

Nevertheless, we regularly come across instances where separate expiation notices are issued for differing offences arising from the same incident. We presume that in many cases, the production of separate notices is motivated by administrative convenience.

However, while it may seem like a purely clerical choice to print, say, three separate notices with one offence each, rather than once notice with three offences, this approach can result in the invalidity of all but one of those notices.

Once an expiation notice is issued in respect of an incident, no further expiation notice may lawfully be issued in respect of any other alleged expiable offence arising from the same incident. However, the Council may withdraw an expiation notice in accordance with Section 16 of the Expiation of Offences Act 1996 (EO Act).

Importantly, a single ‘incident’ under the EO Act can encompass multiple actions and events. In particular, the EO Act contemplates that alleged offences which happen contemporaneously, or in immediate succession one after another, are all part of the same ‘incident’ (and thus must be captured in the same expiation notice, or otherwise not be expiated at all).

Once a person has paid the amounts due under an expiation notice, and 60 days has passed from the date of the notice, that person can never be prosecuted for any expiable offence arising out of the ‘incident’ to which the expiation notice relates.

In any particular investigation, it is important to assess what constitutes a particular ‘incident’ (using the broad concept in the EO Act). Issuing more than one discrete notice in respect of offences arising from a single incident, even if administratively simpler than issuing a single notice, will mean the invalidity of all but one of those notices.

Norman Waterhouse has extensive experience advising local government authorities upon all aspects of expiation of offences, as well as representing councils in enforcement determination appeals and criminal prosecutions in cases where alleged offenders elect to be prosecuted.

For more specific information on any of the material contained in this article please contact Paul Kelly on +61 8 8210 1248 or pkelly@normans.com.au, Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au or Viviana Paradiso on +61 8210 1292 or vparadiso@normans.com.au.

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