Private Prosecutions in Tasmania
Many people assume that only the police and Director of Public Prosecutions can criminally prosecute a person. In fact, Tasmanian legislation provides that any person can commence prosecution against another person through an application to the court. This article explains the nature of private prosecutions in Tasmania.
What Are Private Prosecutions In Tasmania?
In Tasmania, a private individual (as distinct from an official acting in the course of their duties) can launch a criminal action known as a private prosecution. This usually occurs when a person makes a complaint to the police, but the police decline to prosecute an alleged offender. A person can file to prosecute summary offences (heard before the Magistrates Court) and indictable offences (heard in higher courts).
The English House of Lords described a private citizen’s right to prosecute a breach of law as a valuable constitutional safeguard against authority’s inertia or partiality (Gouriet v Union of Post Office Workers ). However, as the president of the Law Society of Tasmania points out, private prosecution is very uncommon in practice.
A person initiates a private prosecution for a summary offence by filing a private complaint with the Magistrates Court. This complaint is served on the defendant with a summons to appear in court on the specified date. For instance, in 2021, PETA Australia filed criminal charges in the Magistrates Court of Tasmania alleging that the practice of whipping horses at racecourses violates Tasmanian animal welfare laws.
A complaint about a summary offence must adequately describe the alleged offence, including the time and place and any details that inform the charge. The complaint must have sufficient supporting evidence. The court will strike out any frivolous or vexatious claim.
A private prosecution for an indictable offence is more complicated. Section 420 of the Criminal Code Act 1924 requires that a person obtain the leave of the Supreme Court to file a criminal indictment against another person. These indictments must note the name of the prosecutor and be endorsed with the phrase “filed by leave of the Supreme Court of Tasmania”. The Supreme Court grants leave to file indictments according to any terms and conditions the court deems appropriate to secure the substantial ends of justice.
Application For Leave To File
An application to the court must establish the facts the prosecutor is relying on to prove the alleged offence. It is essential that this application sets out an adequate foundation with a reasonable prospect of success. A person seeking to initiate a private prosecution must be aware of the elements of the offence and be able to prove these elements beyond a reasonable doubt. The court will deny any application that lacks substance.
Once permission is granted, the prosecution proceeds as if the Crown was prosecuting the defendant.
Potential Problems With Private Prosecutions
Private prosecutions are open to abuse and may be motivated by improper personal motives. There may be public policy reasons why a private prosecution should not proceed or should be turned over to official agencies.
Under the Director of Public Prosecutions Act 1983 (Cth), the Director can take over any prosecution of a federal crime. Where the Director assumes authority over the proceeding, he or she can carry on or decline to prosecute. Typically, it is a party to the prosecution, such as the accused, who brings the matter to the Director’s attention. However, a public authority such as a government department may contact the Director because it is contrary to the public interest for the matter to proceed as a private prosecution.
The private prosecutor is permitted to retain conduct of the prosecution if they object to being removed, unless:
- there is no reasonable prospect of conviction on the available evidence;
- there is reasonable suspicion that the prosecution was motivated by an improper motive. Also, if it is an abuse of the prosecution process for the private prosecutor to proceed;
- it is contrary to the public interest. Sometimes it is necessary for public policy to take precedence over law enforcement considerations to preserve order or maintain international relations;
- it is not in the interests of justice for the prosecution to remain in private hands;
- the charges do not represent an offence under Commonwealth law; or,
- the court has no jurisdiction.
Sentencing after private prosecution in Tasmania
A defendant who is found guilty after a private prosecution undergoes the same sentencing process as any other convicted offender. They may receive a lighter sentence such as a good behaviour bond, fine or community service work, or they can be sentenced to a term of imprisonment.
With private prosecutions, the parties are typically responsible for paying their own costs of the proceeding. However, the court does occasionally make cost orders. The accused is often entitled to recover costs incurred during the private prosecution if they are acquitted. On the other hand, if the complainant succeeds in court, they may recover the costs sustained during the case.
In 2016, a Tasmanian man launched a private prosecution against four constables over alleged physical mistreatment. Adrian Lacroix brought assault charges against Hobart police station officers for an incident in October 2015. He alleged that the officers dragged him along the ground outside the police garage, striking him on the ribs with a baton while he was lying face down on the ground, leaving him naked on the concrete floor. His injuries were sufficient to warrant a trip to the emergency department of the Royal Hobart Hospital.
The Director of Public Prosecutions elected to discontinue prosecution in the Magistrates Court, but Mr Lacroix filed a motion with the Supreme Court of Tasmania to review the decision. He acknowledged that it was an unusual path to justice but emphasised that it was in the public interest as every citizen has the right to safety and to be treated respectfully.
A complainant in a private prosecution can represent themselves in court or hire a criminal lawyer to act on their behalf. The defendant has the same right to legal counsel. If you are being privately prosecuted, you should obtain legal advice immediately. If you need legal representation or any legal advice on private prosecutions in Tasmania, please contact Go To Court Lawyers on 1300 636 846.