When is it in the Public Interest to Lay Criminal Charges?

The recent public fistfight between casino billionaire James Packer and media heavyweight David Gyngell raises an interesting issue of whether police should still investigate an incident and lay charges if the people involved don’t want to take the matter further.

The men, who are long-time friends, were seen fighting outside Packer’s home at Bondi in Sydney’s east last week.

Had the fight taken place inside Packer’s home, it could have occurred without any police intervention.

But the fight took place in public, and although neither man made a formal complaint to police, there were witnesses and police investigated the incident anyway.

Police have issued both James Packer and David Gyngell with criminal infringement notices for offensive behaviour, which if uncontested, have a $500 fine as a penalty.

But the incident begs the question of whether or not the police should have been involved at all.

If two people involved in a fight and are happy to put the matter behind them, shouldn’t the police do the same?

Considerations for the prosecution

There is a key difference between a civil claim and a criminal claim.

A person must file a civil claim against another person in cases of defamation, or in seeking damages and compensation, for example.

A criminal charge is laid by the police acting on behalf of the community. In a jury trial, the prosecutor does not represent the victim, they are there to advocate for the public interest.

Therefore when the police or prosecution looks to file a charge, they need to consider two matters – the merits of the case and the public interest.

Merits of the case

When considering the merits of the case, a key focus is whether the evidence proves the charge. In the case of James Packer and David Gyngell, unfortunately for them (thanks to their high profiles and the presence of the paparazzi) there is photographic evidence of them punching each other.

The merits of the case seem to have been met.

The public interest

But what about the public interest?

If neither man wanted to press charges, is it in the public interest to file them?

On the other hand, it shouldn’t be up to any member of the public to decide whether a matter goes to court or not.

The community may also consider that such behaviour ought to be denounced. In this instance, because the fight involved two high profile men, it may have been more in the public interest to deter the behaviour, or at the least to show the equality of our legal process, and that it applies to everyone in the same way.

Other considerations to take into account

But even if the public interest and the merits of the case are met, there are additional public interest considerations.

Do we really want to see public money go toward prosecuting a case like this?

Indeed if any two friends come to blows in public, should it be taken to court just because the police are involved, particularly if everyone has made amends?

Certainly we ought to expect a level of behaviour that should not amount to assaulting each other.

But laying charges over a fight involving two friends may go too far, and perhaps does not serve any public interest.

Practically, if charges are laid against two men who are accused of assaulting each other, statements are taken from all parties, requiring additional time.

The men then appear in court on separate charges.

If each man has forgiven the other, no real injuries have occurred, and both have good character and clean records, they may be discharged without conviction.

So the outcome is the same whether they are charged or not, and the process is a waste of time and resources.

In the end, both men being fined rather than charged is probably in the public interest.

But the incident highlights how prosecution is about more than just evidence. It also involves considering public interest matters, such as balancing the position of the parties and the resources of the state, against the community’s expectations that violence of any degree should be deterred.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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