Can I Prosecute Someone Privately?
0 CommentsWhile uncommon, the legal system allows private individuals to bring criminal charges against someone, provided certain legal requirements are met. This right reflects the principle that justice should not solely depend on state authorities but also permit individuals to take action when public prosecution may not occur.
However, private prosecutions are a complex area of law, and there are significant hurdles, protections, and responsibilities involved.
What Is a Private Prosecution?
A private prosecution is a legal proceeding initiated by an individual (or a private entity) rather than by a public prosecutorial body, such as the Office of the Director of Public Prosecutions (DPP).
The right to bring a private prosecution is recognised under Section 49 of the Criminal Procedure Act 1986 (NSW), which provides individuals the right to commence private prosecutions in the Local Court.
When Can You Bring a Private Prosecution?
1. The offence must be one recognised under NSW criminal law, and you must present enough evidence to establish that an offence occurred.
2. Private prosecutions are often pursued when the police or the DPP have decided not to proceed with a case.
3. The evidence must be credible and admissible, meeting the same standards required in a public prosecution.
The Process: 1) Filing a Charge
You begin the process by filing a court attendance notice (CAN) in the Local Court. This document outlines the alleged offence and summons the accused to court.
The CAN must comply with the Criminal Procedure Act 1986 (NSW), detailing the nature of the offence and the laws under which the charge is brought.
The Process: 2) Evidence Submission
You must provide admissible evidence to substantiate your allegations. This can include witness statements, documents, photographs, or other material relevant to the offence.
Unlike police, private individuals do not have access to investigative powers such as search warrants, so gathering evidence may be challenging.
The Process: 3) Court Review & Issuance
The Local Court will review the CAN and determine if it meets the legal requirements to be issued.
If accepted, the court will summon the accused to appear.
The Process: 4) Court Hearing
As the initiator of the prosecution, you are responsible for presenting the case, calling witnesses, and arguing the charges in court.
Role of the DPP
The Director of Public Prosecutions (DPP) may step in to take over the case at any time. The DPP has the authority to assume carriage of the matter, continue, or discontinue the prosecution if it is deemed inappropriate or not in the public interest.
Challenges and Risks in Private Prosecutions
While private prosecutions provide access to justice in certain situations, there are significant challenges and risks, including:
1.High Costs:
•Initiating and running a prosecution can be expensive, as you may need to hire legal representation, secure expert opinions, and cover court fees.
2.Legal Expertise Required:
•Private prosecutions demand a sound understanding of criminal law, procedural rules, and evidence law. Mistakes in filing or presenting your case could result in dismissal.
3.Burden of Proof:
•As in public prosecutions, the burden of proof is on the prosecution. You must prove the case beyond a reasonable doubt, which can be a significant hurdle.
4.Risk of Adverse Costs Orders:
•If the prosecution fails, the court may order you to pay the legal costs of the accused.
5.DPP Intervention:
•The DPP can intervene and discontinue a private prosecution if it is found to lack merit, is not in the public interest, or is being pursued for improper motives.
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* Information contained in this article is of a general nature only and should not be relied upon as concise legal advice.
Please contact for legal advice tailored to your situation. *