In order to bring a criminal proceeding and ultimately a criminal trial, one must first bring either a private prosecution or public prosecution.
Private Prosecution
A private prosecution is the criminal prosecution of an alleged offender by someone “other than a police officer or public officer”, including the Department of Public Prosecutions or the Crown. This simply means that a private prosecution involves the victim of a criminal offence prosecuting the alleged offender, rather than the State. The victim or person initiating the prosecution can be either a natural person or a body.
The Criminal Procedure Act 1986 (NSW) is the NSW legislation that governs the ability for anyone to commence a prosecution. Specially, section 49 outlines the steps involved in starting this process. This is discussed below.
Public Prosecution
Generally, when an alleged offence occurs many people will initiate a public prosecution. This is an aspect of the law many are familiar with. Firstly, the police receive a report from a victim regarding the alleged offender. Secondly, the police investigate the crime, then arrest and charge the alleged offender. For serious crimes, the Department of Public Prosecutions will take over the prosecution. The Department of Public Prosecutions or ODPP is an independent prosecuting service that prosecutes alleged offences.
The major difference between a private and public prosecution is simply its commencement:
- Prosecution commenced by police or the ODPP – public prosecution,
- Prosecution commenced by individual or body other than the police or public officer – private prosecution.
Why would anyone choose Private over Public Prosecution?
The most common reason for commencing a private prosecution is where the police have chosen not to prosecute an alleged offender. Thus, the police have refused to commence a public prosecution.
Example
In 2018, a Queensland women initiated a private prosecution against her former partner for serious domestic violence offences. The former partner has allegedly doused her with petrol and then held a lighter at her feet. The police had refused to press charges against the former partner. The women then commenced a private prosecution against him after police refused to do so.
How to commence Private Prosecution
As stated above, section 49 of the Criminal Procedure Act 1986 (NSW) outlines the steps needed to initiate this type of proceeding.
Section 49 states that in order for a person or body, other than a police officer or public officer, to initiating private prosecution, the person must (1) issue a court attendance notice, (2) signed by a Registrar and (3) file the notice in accordance with notice rules.
Court Attendance Notice (‘CAN’)
A court attendance notice or CAN is a document. This document initiates criminal proceedings. The CAN sets out all the details of the offence (called the ‘particulars’), as well as the date and time the accused must attend court to answer to their charges. To find a copy of the CAN form, see here.
A Registrar must sign the completed CAN. However, a Registrar is not required to sign and issue all CANs. Under section 49(2), a Registrar must not sign or issue a CAN if:
- they are of the opinion that it does not disclose the grounds for the proceedings or,
- the notice is not in the required form or,
- other grounds for refusal are present.
If a Registrars has refused to sign a CAN for the above reasons, it is possible to seek a Magistrates determination. A Magistrate may either accept or refuse the Registrars determination.
Final Thoughts
A private prosecution is when someone, other than a police officer or public officer, initiates criminal proceedings against the alleged offender. Thus, this type of prosecution can be brought by an individual or body, rather than by the State of NSW. In order to commence a private prosecution, the individual must completed a court attendance notice form. This court attendance form must be signed by a Registrar and filed in accordance with Local Court rules.
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