Private Prosecutions - Can I charge someone with a crime?

Saturday 7th of March 7:43 PM

Private Prosecutions - 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 friend took of the incident provides enough evidence to support your case.

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.

Crimes Act 1914 Sect 13

Institution of proceedings in respect of offences

Unless the contrary intention appears in the Act or regulation creating the offence, any person may:

  1. institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or
  2. institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.

How do I go about prosecuting someone privately?

You can start committal proceedings against someone 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) someone 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 Criminal Procedure Act 1986 Sect 174 states that a registrar must not sign a CAN if they:

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, you should fully understand all the particulars of the offence(s) you are alleging.

You should also be aware that under section 9(5) of the Director of Public Prosecutions Act 1983, the Act empowers the Director to take over summary or committal proceedings instituted by you. Having taken over the proceedings the Director may continue it as the informant or decline to carry it on any further.