Introduction

Private prosecutions in New South Wales offer individuals an avenue to seek justice when public authorities decline to act. This legal process, governed by the Criminal Procedure Act 1986 (NSW), allows individuals to initiate criminal proceedings, ensuring that justice isn’t solely dependent on state authorities. Understanding this mechanism is crucial for those considering such actions.

This guide provides essential information and practical guidance on private prosecutions, covering key aspects such as legislative requirements, the role of the Director of Public Prosecutions (DPP), and the challenges involved. It aims to clarify the process and implications for those navigating this complex legal landscape.

Understanding Private Prosecutions NSW

Defining Private Prosecutions

A private prosecution is a criminal proceeding initiated by a private individual rather than a public prosecuting authority. This right is enshrined in section 49 of the Criminal Procedure Act 1986 (NSW), which permits individuals to commence proceedings under specific conditions.

Private prosecutions offer individuals the ability to pursue criminal charges independently of public authorities. This legal avenue is particularly useful when the police or the DPP decide not to proceed with a case.

Key aspects of private prosecutions include:

Aspect	Description
Legal Basis	Authorised under section 49 of the Criminal Procedure Act 1986 (NSW), allowing individuals to file a Court Attendance Notice (CAN) with the Local Court.
Initiation by Individuals	Started by individuals who believe an offence has been committed against them, providing an alternative when public authorities decline to act.
Safeguard Against Inertia	Ensures that justice is not solely dependent on state action, preventing potential injustices when authorities are reluctant to prosecute.

When Private Prosecutions Are Initiated

Private prosecutions typically arise in scenarios where public authorities have declined to pursue a case, such as in certain complex fraud offences where the police may lack specialised resources. This often happens due to insufficient evidence or a lack of public interest, according to official prosecutors.

Common situations include:

Situation	Description
Declination by Police or DPP	When authorities decide not to proceed with a case despite the victim’s belief that a crime occurred.
Victim’s Pursuit of Justice	Victims of crimes like a common assault may initiate proceedings to seek accountability when public authorities do not act.
Access to Justice	Provides an avenue for individuals to address offences that might otherwise go unchallenged.

By understanding these aspects, individuals can navigate the legal landscape and determine when a private prosecution is appropriate. This mechanism underscores the balance between public and private legal action, ensuring broader access to justice.

Legislation & Requirements for Initiating Private Prosecutions

Legislative Basis Under the Criminal Procedure Act

Private prosecutions in New South Wales are governed by the Criminal Procedure Act 1986 (NSW). This legislation provides two key authorisations:

Provision	Authorisation
Section 14	Authorises any person to institute criminal proceedings unless the right is restricted by statute.
Section 49(1)	Specifically permits individuals to commence proceedings by issuing a CAN.

These provisions ensure that individuals have a legal pathway to pursue criminal charges when public authorities may not take action. Importantly, this means that individuals can initiate prosecutions for offences not exclusively reserved for public authorities.

Key Requirements for Filing a Court Attendance Notice

A CAN is essential for initiating a private prosecution. To be valid, the CAN must:

• Describe the offence alleged
• State the particulars of the charge
• Include the prosecutor’s name
• Specify the court date, time, and place for the accused to appear

The CAN must also be signed by a registrar before it can be filed in accordance with the Division. However, it’s important to note that the registrar may refuse to sign if the notice does not disclose grounds for the proceedings, is not in the correct form, or if the proceedings appear frivolous or lack substance.

If a registrar refuses to sign the CAN, the applicant is not without recourse. In such cases, the applicant can apply to a magistrate for a review of the decision. This additional step ensures that the legal process remains accessible to private individuals while maintaining procedural integrity.

Process & Key Considerations in Filing a Private Prosecution

Steps to Commence a Private Prosecution

To initiate a private prosecution in New South Wales, the process begins by issuing a CAN. This document, completed in the prescribed form, must include the alleged offence details, particulars of the charge and the prosecutor’s name. Once finalised, the CAN summons the accused to appear in the Local Court at a specified date, time and place.

After preparing the CAN, a registrar of the Local Court must sign it before it is filed at the court registry. The date of filing marks the commencement of the private prosecution. The initiator is then responsible for serving the CAN on the accused, which can be done via:

• personal delivery
• registered post to the accused’s residential address
• fax
• email (provided the accused consents)

Unless served personally, the CAN must be served at least 21 days before the court date.

Following service, the case is listed for a hearing, which is the first step in a process that may ultimately conclude with a sentencing hearing if the prosecution is successful. At that hearing, the private prosecutor:

• presents evidence
• calls witnesses
• argues the case in court

Admissible evidence may include witness statements, documents, photographs or other material. However, unlike public prosecutors, private individuals lack investigative powers—such as search warrants—which can complicate evidence gathering.

It is essential that the private prosecutor understands the elements of the offence and ensures each can be proven beyond a reasonable doubt. If any element cannot be substantiated, the case risks being dismissed or refused at the outset.

Registrar Role & Grounds for Refusal

The Local Court registrar serves as a critical gatekeeper in private prosecutions. Under section 49(2) of the Criminal Procedure Act 1986 (NSW), a registrar must refuse to sign a CAN if:

Ground for Refusal	Description
Insufficient Grounds	The notice does not disclose sufficient grounds for the prosecution.
Incorrect Form	The CAN is not in the prescribed form.
Frivolous or Vexatious	Proceedings appear frivolous, vexatious, lack substance, or have no reasonable prospect of success, as per Rule 8.4 of the Local Court Rules 2009 (NSW).
Other Statutory Grounds	Other statutory or procedural grounds for refusal apply.

Additionally, Rule 8.4 of the Local Court Rules 2009 (NSW) requires refusal if the proceedings appear frivolous, vexatious, lack substance or have no reasonable prospect of success.

If the registrar refuses to sign the CAN, the applicant may seek a review by a magistrate, who will then decide whether the CAN should be signed and issued.

Often, refusal hinges on whether the facts set out adequately support the offence’s elements. For example, if an offence requires proof of intent, but the application fails to provide evidence of intent, the registrar may refuse to sign.

Understanding these grounds before filing is crucial to avoid premature dismissal and unnecessary costs. Consequently, proper preparation and legal advice can improve the chances that the registrar will authorise the CAN to proceed.

The Impact of DPP Intervention in Private Prosecutions

Circumstances When the DPP Takes Over a Private Prosecution

The DPP plays a crucial role in ensuring the integrity and fairness of criminal proceedings in New South Wales. The DPP may intervene in a private prosecution under specific circumstances, as outlined in the Criminal Procedure Act 1986 (NSW) and relevant case law.

These situations include:

Circumstance	Rationale for DPP Intervention
Lack of Evidence	The DPP determines there is no reasonable prospect of securing a conviction due to insufficient or inadmissible evidence.
Public Interest	Continuing the prosecution is not in the public interest (e.g., minor offences, negligible harm).
Improper Motives	The DPP suspects the prosecution is driven by improper motives, such as personal vendettas or malice.
Abuse of Process	The prosecution appears to be frivolous, vexatious, or an abuse of the legal process.
Conflict of Interest	A conflict of interest arises, or the fairness of the proceedings is compromised.

The DPP’s decision to take over a private prosecution ensures that the legal process remains fair and just, balancing the rights of the private individual with the broader public interest.

Consequences of DPP Intervention on Your Case

When the DPP intervenes in a private prosecution, it can have significant implications for your case. These consequences may fundamentally alter the trajectory of the legal proceedings.

The primary outcomes of DPP intervention include:

Consequence	Description
Discontinuation of Proceedings	The DPP may decide to discontinue the prosecution if it lacks merit or is not in the public interest.
Modification of Charges	The DPP may choose to modify the charges or reduce their severity to align with evidence and public interest.
Impact on Case Direction	The DPP’s involvement can alter the case’s direction, focusing it according to DPP priorities and resources.

Understanding these dynamics is essential for individuals considering a private prosecution, as the DPP’s intervention can significantly influence the outcome of the case. If you are involved in a private prosecution and the DPP intervenes, it is crucial to seek legal advice to navigate the situation effectively.

Challenges & Risks of Private Prosecutions NSW

Practical & Financial Challenges in Private Prosecutions

Private prosecutions offer individuals a pathway to seek justice when public authorities decline to act, but they come with significant practical and financial hurdles.

The challenges individuals face when initiating a private prosecution include:

Challenge	Description
High Costs	Individuals must personally cover substantial legal fees, evidence gathering, and court expenses.
Legal Expertise	The complexity of criminal law and procedure often necessitates professional legal advice.
Burden of Proof	The prosecutor must prove the case beyond a reasonable doubt without official investigative powers.
Resource Limitations	Private individuals may lack the extensive resources available to public authorities for evidence collection.

Legal Risks & Potential Adverse Cost Orders

Beyond practical challenges, there are several legal risks that must be carefully considered before proceeding with a private prosecution.

These risks include:

Legal Risk	Description
Adverse Cost Orders	If the case is unsuccessful, the court may order the private prosecutor to pay the defendant’s legal costs.
Case Dismissal	The court may dismiss the prosecution if it is found to lack substance or be frivolous, resulting in wasted time and resources.
DPP Intervention	The DPP may take over and discontinue the case if it is deemed to lack merit or not be in the public interest.

Given these significant challenges and risks, consulting an experienced criminal lawyer is essential to navigate the process effectively and understand the potential consequences involved.

Conclusion

Private prosecutions in New South Wales provide individuals with a legal avenue to seek justice when public authorities decline to act. Governed by the Criminal Procedure Act 1986 (NSW), this process allows individuals to initiate criminal proceedings, ensuring that justice isn’t solely dependent on state authorities. Understanding the legislative requirements, the role of the DPP, and the associated challenges is crucial for those considering this legal pathway.

If you are contemplating a private prosecution, it is essential to seek legal advice to navigate the complexities involved. The expert criminal lawyers at Daoud Legal: Sydney Criminal Defence & Traffic Lawyers can guide you through the process, ensuring you understand your rights and make informed decisions. Contact us to discuss your case and explore your options with confidence.

Frequently Asked Questions About Private Prosecutions