Private Prosecutions (Qld)

A private prosecution occurs when the complainant in a criminal matter, rather than the state, prosecutes the alleged offender. In Queensland, a private prosecution can be initiated by a natural person or by a corporation.

Private prosecutions usually occur when police have decided not to prosecute an alleged offender after a complaint has been made.

A private prosecution can be commenced for any alleged criminal offence including summary offences (those heard in the Magistrates Court or Children’s Court) and indictable offences (those heard in the higher courts).

Successful private prosecutions

In 2020, the Guardian Australia reported that a Queensland woman had successfully prosecuted her former partner for family violence offences in a private prosecution. The woman took the unusual step of commencing a private prosecution after the police refused to charge the man.

In 2011, a homeless man in Brisbane successfully ran a private prosecution against the police for assaulting him at a public toilet. The man had originally been found guilty of obstructing police and disobeying a lawful direction when he failed to leave the toilet when the police told him to do so. On appeal, this decision was reversed. He subsequently initiated the private prosecution.

Procedure

A private prosecution for a summary offence is initiated by filing a private complaint in the Magistrates Court. The complaint must be served on the defendant with a summons requiring their attendance at court on the day the matter is listed.

Private prosecutions for indictable offences require leave to be given by the Supreme Court. If leave is granted, the complainant must present an ex officio indictment following the process set out in Section 686 of the Criminal Code 1899.  The prosecution then proceeds the same as a prosecution commenced by the Crown.

Preparing a complaint or indictment

The complaint or indictment must be made in the prescribed form and must include all the necessary information. If it does not include all the information required, it is invalid.

A complaint alleging a summary offence must include:

• An adequate description of the alleged offence/s;
• Details of what is alleged as forming the basis of the charge/s;
• The time, place and manner of act/s alleged;

The complaint must be supported by adequate evidence. If the court considers a complaint to be an abuse of process or to be frivolous or vexatious, it may strike it out.  

Representation

A person bringing a private prosecution can be represented by a lawyer or they can represent themselves. 

Sentence

If an accused person is found guilty after a private prosecution, they will proceed to be sentenced in the same way as anyone else who is found guilty of criminal charges. They may be sentenced to imprisonment, to a fine, community work, or a good behaviour bond, among other orders.

Costs

In private prosecutions, the parties must pay the costs associated with the proceedings. However, under some circumstances, the court will make orders for costs. Costs may be ordered against the accused if he or she is found guilty or against the complainant if the court finds the complaint was frivolous or vexatious.

If you receive a private complaint

If you receive a private complaint, you should read it and the summons carefully and note the date and time you are required to attend court. You should contact a lawyer as soon as possible to obtain advice and representation.

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal.