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NSW Private prosecutions

Private prosecutions

  1. Justus
    We come across posts/threads or instances where an offence has been committed, brought to attention of a member of police who has decided not to...
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    chilliman64 likes this.
  1. Hi Justus,
    Out of curiosity, if someone takes out a private prosecution and loses, are they liable to pay the accused costs if asked?

  2. Hey, good seeing you again 665.

    Yes, if an order is made.

    An application for costs must be brought (if at all) at the time of the discharge of the defendant (at the conclusion of committal proceedings) or at the time of the dismissal of the information. The onus is on the party seeking costs to establish an entitlement to costs and that the claim is just and reasonable. What will be reasonable will be determined from a consideration of all the relevant factors, bearing in mind the purpose of awarding costs.

    In Latoudis v Casey HCA [1990] Mason C.J at para [13] said:

    "If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not to be awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings."

    While costs are in the magistrate’s discretion, reasons must be provided for orders made in relation to cost eg. Ramskogler v DPP NSWSC [1995]

  3. is there also a possibility of police/prosecutor taking over a case that has been initiated privately? or it would be stopped and reinitiated with state backing?
  4. By "police/prosecutor", I take this to be police prosecutor/director of public prosecutions (DPP) which prosecute summary and indictable offences respectively. Police prosecutors who are members of the NSW police force do not take over private prosecutions. Most are not lawyers which means that they are not bound by the same professional codes of conduct that govern members of the legal profession.

    DPP lawyers and Crown prosecutors on the other hand, must have law degrees and demonstrate a thorough understanding of legal principles, the laws of evidence, the essential ingredients of offences, legal practice and procedure, and so on.

    s 9 DPP Act 1986 and s 9 DPP Act 1983 empowers the Director to take over a summary or committal proceeding instituted by another. Having taken over the proceedings the Director may continue it as the informant or decline to carry it on further eg.
    • Reasonable grounds to suspect that improper motives are being used to prosecute, or to allow the private prosecution to continue would amount to an abuse of processes
    • To proceed would be contrary to public interest or that it would be in the interests of justice for the prosecution to remain under the control of the private prosecutor
    • Insufficient evidence to justify the continuation of prosecution, and so on
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  5. Cheers for the answer mate.

    Another one for you (or anyone)
    Have you seen one taken out? In my 15 years on and off at the Victorian Magistrates courts I have never seen or heard of one happening.
  6. Our definition of "private" probably differs :p

    Every prosecution is arguable private unless it is done by a DPP. There is no legal barrier to filing an information so private informants includes bodies such as Local Councils/Municipalities, RSPCA, RTA, VicRoads etc. and going back to your previous Q for a moment, they will usually always seek professional costs against unsuccessful defendants.

    At Commonwealth level, s 13 Crimes Act 1914 makes it clear that

    "any person may…institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth.. or..any offence against the law of the Commonwealth punishable on summary conviction"

    You are obviously referring to truly private prosecutions, and yes, they are few and far between, the main reason being burden (?); the financial cost and the general burden placed on a prosecutor. The other main reason would be because private prosecutions for both summary and indictable offences can be throttled by the DPP and there does not seem to be recourse if this happens eg.

    See Waddington v Magistrates Court of Victoria [2013].

    I did provide a few examples of successful private prosecutions at the end of the resource: NSW Private prosecutions


  8. Don't know of any authoritive body who encourages citizens arrest under s 458 and s462A. The police discourage it, as does the government departments. Using too much force could result in the detainee charging you with assault or seeking civil damages, and if the person you ‘arrested’ is released without charge, they might be able to sue you for false imprisonment. Self-defence and Good Samaritan laws may be a defence, but you can’t play cop and investigate yourself!

    Reminds me of the NT politician (& ex policeman) John Elferink MLA :: Port Darwin

    He was doing a live TV interview back in 2014 and got his bum kicked from behind. Copper instincts kicked in. He grabbed the man and told him he was making a citizen’s arrest and would hold him till police arrived. The man struggled until another man arrived and helped him escape. They ran off while the TV crew kept filming

    john2. john1.

    Drunk Irishman fined over 'stupid' attack on MP

  9. Haha, well it was only for a Summary Offence. Being a pollie he probably deserved it.
    I must admit I thought S458 in regards for a Member of the public was only for Summary offences. But yes the "Citizen's Arrest" has always rung alarm bells with use of force, false imprisonment etc and fear of just getting belted by the person they are detaining. And then there's CAPS to satisfy.
    Anyway I'll stop now. :)