Private Prosecutions- How Can I Charge Someone With a Crime?
What happens if someone has perpetrated an offence against you but the police or the public prosecutor is not willing to prosecute the offender? Or worse what if you are a victim of police professional misconduct or brutality and the public prosecutor does not want to pursue your case because he or she feels there is insufficient evidence to provide a realistic prospect of conviction? However, you are sure the video your brother-in-law took of the incident provides enough evidence to support your case.
What if an employee steals merchandise from your store but since you recovered the items the police do not feel prosecution would be a worthwhile use of policing resources?
In these scenarios, are there any other legal options available to you that you can use to pursue the offence?
The public is generally under the misconception that only the Crown, Police, government agencies and other public bodies can bring about prosecutions. However, in Australia, private individuals or other private bodies can launch ‘private prosecutions’ against others for criminal offences.
Take for example, Bruce Rowe, the 65 year old homeless man who was assaulted by a Brisbane police officer when Rowe failed to leave a public toilet where he was changing in June 2006. Originally Rowe was found guilty of “obstructing police and disobeying lawful direction.” However, on appeal the court ruled in Rowe’s favour and he subsequently “launched a private prosecution for common assault against” one of the officers.
What are private prosecutions?
A private prosecution is a criminal prosecution started by a private individual or body, who is “not acting on behalf of the police, public officer or any other prosecuting authority or body that conducts prosecutions.”
According to the Criminal Procedure Act 1986 (NSW) Sect 49 (‘the Act’), any individual who on reasonable and probable grounds believes that an offence has been committed against him or herself has the power to institute a private prosecution against another individual or body for any indictable offence.
How do I go about prosecuting someone privately?
A person can start committal proceedings against a person for an offence, by issuing a court attendance notice (CAN), signed by a registrar, and filing the notice in accordance with the appropriate Division. Registrars can be found at all local court registries in NSW.
The court attendance notice sets out the offence(s) which a person is accused of. It also provides details of the charges, as well as a date and time the accused is expected to attend court and answer to the charges.
Registrars are not mandated to sign and issue CANs. The ACT Sect 174 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.
If a registrar refuses to sign a court attendance notice, then it is up to the Magistrate to decide whether the court attendance notice is to be signed and issued.
Before launching a private prosecution, one should fully understand all the particulars of the offence(s) he or she is alleging.
What are the risks related to private prosecutions?
Pursuing a private prosecution is not for the faint at heart. There are a number of risks that need to be considered as is the case with any other type of civil litigation. Two of the biggest things to consider are time and money.
- It can often be years between the commission of an offence and the trial. Having to go through such a lengthy process can be stressful for the victim, as well as all other people involved or related to the victim.
- Financial costs can be a huge constraint when it comes to private prosecutions because the individual is expected to pay for all aspects of the investigation and prosecution, which is why historically before our public system, private prosecutions were only available to those who could afford it.
It could also cost you even more for things like defendant court costs or costs related to being sued by defendant for malicious prosecution if you lose the case.
Even after you have committed all that time and money, the CPS could still decide to take over the case and either continue it, or worse discontinue it. That means whatever time and money you had put into the case could turn out to be all for nothing.
Private prosecutions safeguard the public from inertia or partiality in cases where the prosecuting authorities either choose or are unwilling to bring proceedings foreword.
Although private prosecution is an option when it comes to possible incidents with police like:
- wrongful arrest
- false imprisonment
- negligence; and
- malicious prosecution
Due to the possible repercussions if unsuccessful, civil litigation might be a better option.
Private prosecutions are often used in economic cases like fraud where the Police refuse to investigate or prosecute a crime under the pretext of limited budget or staffing.
For any individual or body considering private prosecution or civil litigation, legal advice should be obtained to find out the pros and cons of going to court and most importantly your chance of success.