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Private Prosecutions (NSW) 

Written by Mark Maloney

Mark Maloney holds a Bachelor of Laws, an Associate Degree in Policing as well as a Graduate Diploma in Legal Practice. He is currently studying a Master of Laws while working as a solicitor. Mark is admitted to the Supreme Court of New South Wales and the High Court of Australia in 2019. He has appeared in Supreme, County, District and Magistrates’ Courts. During his legal studies, Mark was awarded the Central West Law Society Prize for his studies in Professional Legal Conduct and inducted in the Dean’s List of Academic Excellence in Law for 2017 and 2018 academic years.

People generally associate criminal prosecutions with the police and the Department of Public Prosecutions. These agencies are responsible for the vast majority of prosecutions in New South Wales. However, under NSW legislation, any person can commence a prosecution by application to the registrar of the Local Court. When private individuals do so, these are known as private prosecutions.  

Legislation

Section 14 of the Criminal Procedure Act 1986 (NSW) authorises that a prosecution may be instituted by any person unless the right to institute the prosecution is confined by statute. Therefore, save for where the institution of proceedings is confined by statute, an application to a registrar of the Local Court to issue court attendance notices against a person for an offence can be made by a person other than a police officer or public officer.

The ability to commence private prosecutions is provided for in section 49(1) of the Act. This provision states:

“(1) 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.”

Court Attendance Notices (CANs)

A Court Attendance Notice (CAN) must be in writing and in the form prescribed by the rules. A CAN must:

  • describe the offence;
  • briefly state the particulars of the offence alleged;
  • contain the name of the prosecutor (usually a lawyer);
  • require the accused person to appear before the court on a specified date, time and place, unless a warrant has been issued for their arrest or they have been refused bail; and 
  • state, unless a warrant has been issued or they have been refused bail, that failure to appear may result in their arrest or in the matter being dealt with in their absence.

When can a registrar refuse to sign a CAN?

Section 49(2) provides that a registrar must not sign a court attendance notice if the CAN:

  • does not disclose grounds for the proceedings;
  • is not in the form required; or
  • that a ground for refusal set out in the rules applies to the notice.

In addition to these grounds for refusal, Rule 8.4 of the Local Court Rules 2009 (NSW) 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.”

Key considerations for private prosecutions

An application to the registrar of the Local Court will need to set out the facts relied on to prove the offence alleged. Applications which fail to set out an adequate factual foundation, will ultimately lack substance and/or have no reasonable prospect of success.

It is therefore important that persons seeking to initiate private prosecutions are aware of the elements of the offence and makes sure that each element can be proven beyond reasonable doubt. Where an element of the offence cannot be proven, the application is likely to be refused by the registrar.

Can I have the decision of the registrar not to sign a CAN reviewed? 

Yes. A challenge to a registrar’s refusal to issue a CAN was considered in the case of Potier v Hubner (2004) 148 A Crim R 399. If a registrar refuses to sign a court attendance notice proposed to be issued, the applicant can apply to have the question of whether the court attendance notice is to be signed and issued determined by a Magistrate

Service of court attendance notices

A CAN may be served by the person on whose behalf the CAN was issued or by a sheriff’s officer, a licensed process server, a legal practitioner or an employee of such a legal practitioner. Service of CANs in summary proceedings can be effected by serving the CAN:

  • personally; 
  • by sending the notice by post, addressed to the person, to the person’s residential address
  • by faxing a copy of the notice; or
  • by transmitting an electronic copy of the notice, addressed to the person, to the person’s electronic service address (if that method of service has been consented to by the person).

Private prosecutions, like other criminal proceedings, are taken to have commenced on the date on which a court attendance notice is filed in the registry of the relevant court.

If you require legal advice or representation in relation to private prosecutions, or in any other legal matter, please contact Go To Court Lawyers.

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