Private Criminal Prosecutions in New South Wales

by Ugur Nedim & Sonia Hickey

Police told 31-year old Dani* (not her real name) that there was a prima facie case against her former partner for threatening violence, which means there was enough evidence for a magistrate to convict him, but decided not to prosecute the man because there was a “a low level of public interest” to do so.

In Dani’s case, police conducted a factual review of the alleged offence, but recommended that no charges be laid against the alleged perpetrator.

Instead, they turned the tables on Dani, warning that she could be charged with assault for hitting the man, which she had done before running to safety.

Private criminal prosecution

Determined to bring her partner to account, Dani* instructed her lawyers to commence a private criminal prosecution against her former partner and, earlier this year, the man pleaded guilty to threatening violence. He was sentenced to 130 hours of community service.

During the sentencing hearing, the court heard that police refused to assist Dani* with her case – declining initially to provide police statements of the alleged events.

It was only after Dani’s* lawyers complained directly to Queensland Police Commissioner, Katarina Carroll, that the statements were provided.

So with courage and perseverance, Dani was able to achieve a positive result for herself by “going it alone”.

Private criminal prosecutions in New South Wales

Section 49(1) of the Criminal Procedure Act 1986 (NSW) (‘the Act’) gives individuals the power to commence private prosecutions.

The section states as follows:

“If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings against a person for an offence, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.”

Section 14 of the Act is headed ‘Common informer’ and provides that:

“A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.”

Commencing Proceedings

An individual can commence criminal proceedings by way of a Court Attendance Notice (‘CAN’).

A CAN is a document which sets out the offence/s which a person is accused of, along with the ‘particulars’ (brief details) of those charges, and a date and time for the accused person to attend court and answer to the charges.

Individuals wishing to commence a private prosecution can find a template for a Court Attendance Notice here.

Once the form is completed, it must be signed and issued by a registrar of the court. Registrars can be found at all local court registries in NSW.

It is important to note that registrars are not bound to sign and issue CANs. In fact, section 49(2) states that a registrar must not sign a CAN if he or she:

  • is of the opinion that it does not disclose grounds for the proceedings,
  • the notice is not in the required form, or
  • there are other grounds for refusal.

In addition to this, regulation 8.4 of the Local Court Rules 2009 states that:

‘A registrar must not sign a court attendance notice, or an application notice, in proceedings commenced by a person other than a police officer or a public officer if of the opinion that the proceedings are frivolous, vexatious, without substance or have no reasonable prospect of success.’

If the registrar refuses to sign the CAN, the applicant can bring the matter before a magistrate to determine whether it should be signed and issued.

Matters to consider

If you are considering launching a private prosecution, it is important to familiarise yourself with the ‘elements’, or ingredients, of the offence/s you are alleging.

For instance, the offence of stalking or intimidating is contained in section 13 of the Crimes (Domestic and Personal Violence) Act 2007.

For a person to be found guilty of that offence, the following ‘elements’ must be proved beyond a reasonable doubt that:

  1. The person stalked or intimidated you, and
  2. He or she intended to cause you to fear physical or mental harm.

‘Stalking’ includes:

  1. Following the other person about
  2. Watching or frequenting the person’s residence, work, business, or any place the other person frequents for social or leisure activities, and
  3. Contacting the other person through the internet or other technological means.

‘Intimidation’ means:

  1. Conduct amounting to harassment or molestation
  2. Approaching the other person by any means including phone, SMS and email in order to make them fear for their safety
  3. Conduct causing the other person to apprehend violence or damage to themselves or their property, and
  4. Conduct causing a person with whom you have a domestic relationship to apprehend being injured.

Bear in mind that the registrar is unlikely to sign the court attendance notice if it appears that one or more of the elements cannot be made out.

In certain cases, the consent of the Director-General or a particular Minister may be required before proceedings can be commenced – for instance, offences under the Anti-Discrimination Act 1977. It is important to look at the relevant legislation to ensure that all criteria have been satisfied before you prepare a CAN.

You should also think very carefully about the potential costs implication of commencing a private prosecution, because you may be ordered to pay the other party’s legal costs if you are unsuccessful – which can amount to tens of thousands of dollars, or more.

What happens next?

If the registrar signs the CAN, it can then be filed at the Registry and the matter will be listed for a court date sometime into the future.

You will bear the responsibility of serving the CAN on the accused person. This can be done by personally giving it to them, sending it to their home address by registered post, or sending it by fax or email if they have consented to this. Unless it is served personally, the CAN must be served no less than 21 days before the first court date. In all cases, you will be required to complete and Affidavit of Service.

If the defendant fails to turn up on the scheduled court date, the magistrate may adjourn the case to enable them to attend, convict them in their absence, and/or issue a warrant for their arrest.

Also bear in mind that the Department of Public Prosecutions (DPP) can choose to take over a matter which started off as a private prosecution at any time, to ensure that the evidence is presented fairly.

Private apprehended violence orders

As discussed in one of our previous blogs, if someone is harassing, intimidating or acting violently towards you, you may be able to apply for a private Apprehended Violence Order (‘AVO’) if police are unwilling to assist you.

Private AVOs are classed as civil proceedings, rather than criminal proceedings. This means that you only need to prove the case ‘on the balance of probabilities’ (ie more than 50%) rather than the criminal standard of ‘beyond reasonable doubt’.

The court registrar or chamber magistrate will be able to assist you to complete the relevant paperwork for a private AVO – and you can make an appointment by contacting the court.

You will need to sign the application, before police or another person nominated by the court can serve it on the other person.

The application will list the date and time when you and the other person will need to attend court, and the case will proceed from there.

If you are considering commencing a private prosecution against another person, it is a good idea to get legal advice from an experienced criminal lawyer who will be able to advise you about the necessary steps, as well as your prospects of success.

When thinking about this course of action, always bear in mind that if you commence criminal proceedings and are unable to prove the defendant’s guilt beyond reasonable doubt, you may be required to pay his or her legal costs. The same applies if you are unable to prove the requirements of a personal AVO on the balance of probabilities.

Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

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