Private Prosecutions (NSW)

People usually associate criminal prosecutions with the police and the Department of Public Prosecutions, otherwise known as the Crown. Although these agencies are responsible for the vast majority of prosecutions in New South Wales, it is also possible under NSW legislation, for a private individual to commence a prosecution by application to the registrar of the Local Court. When this occurs, it is called a private prosecution.  This article outlines the law on private prosecutions in New South Wales. 

Legislation on private prosecutions

Section 14 of the Criminal Procedure Act 1986 authorises prosecutions to be instituted by any person unless the right to prosecute the offence is confined under statute. Therefore, except where the institution of proceedings is confined by statute, an application to a Local Court registrar to issue court attendance notices against a person for an offence can be made by any person.

The ability to commence private prosecutions is contained 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.”

What is a Court Attendance Notice?

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

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

When can a registrar refuse to sign a CAN?

Under section 49(2), a registrar must not sign a court attendance notice if the CAN:

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

In addition to these grounds for refusal, under Rule 8.4 of the Local Court Rules 2009, a registrar must not sign a court attendance notice, or an application notice, in proceedings commenced by a private individual if they consider that the proceedings are frivolous, vexatious, without substance or lack a reasonable prospect of success.

Key considerations for private prosecutions

Any application to the registrar needs to set out the facts relied on to prove the alleged offence. Applications that fail to set out adequate factual foundations, will ultimately lack substance and/or have no reasonable prospect of success.

It is therefore important that a person seeking to initiate a private prosecution is aware of the elements of the offence and ensures that each element can be proven. Where an element of the offence cannot be proven beyond a reasonable doubt, the application is likely to be refused by the registrar.

Reviewing a registrar’s decision not to sign a CAN

A decision by a registrar not to sign a CAN can be reviewed.

The 2004 decision of Potier v Huber involved a challenge to a registrar’s refusal to issue a CAN. If a registrar refuses to sign a CAN a person is proposing to issue, the applicant can apply to have the issue of whether the CAN should be signed determined by a Magistrate. 

Service of court attendance notices

A CAN may be served by the person who initiated the issuing of the CAN or by a licensed process server, a sheriff’s officer, a legal practitioner or their employee. Service of CANs in summary proceedings can be affected by serving the CAN:

• personally; 
• by post, addressed to the person and sent to their residential address; 
• by fax; or
• by email if the person has consented to service by email.

Private prosecutions are taken to have commenced on the date on which a court attendance notice is filed in the court registry.

If you require legal advice or representation in relation to private prosecutions, or in any other legal matter, pleasecontact Armstrong Legal.