Private Prosecutions: public need vs turf war intransigence?

“Legally you should be prosecuting on our behalf, instead you have made a clear decision to protect, the banking cartel, the Masonic Lodge and their illegal oaths, and the judiciary in clear breach of various law”. Private prosecutor, Brian Shaw.[1]

“Legally you should be prosecuting on our behalf, instead you have made a clear decision to protect, the banking cartel, the Masonic Lodge and their illegal oaths, and the judiciary in clear breach of various law”. Private prosecutor, Brian Shaw.[1]

Private prosecutions have a confused reputation. On the one hand being often the tool of the eccentric and the obsessed and on the other being common and uncontroversial when a Municipal Council or the RSPCA deploys them. There is a natural reluctance by the legal profession to enter a realm seen by many as the natural monopoly of dedicated prosecution authorities. This article examines the current practice of private prosecutions and opportunities for their future. Extensive reference is made to the Australian Law Reform Commission report No.27 Standing In Public Interest Litigation (“ALRC 27”).

The wacky and the mundane

Many lawyers are familiar the private prosecution created by the literate but lay individual without legal assistance. Only last week an unrepresented client addressed the Supreme Court in the writer’s presence stating the Queen had no constitutional status due to a “..people’s referendum in Bendigo”. The perception of private prosecutions as wacky and abusive was at the forefront of the Victorian Law Reform Commissions commentary on the subject in its Civil Justice Review No.14.[2] Its discussion is painfully close to the following passage on the same page:


“..there may be a correlation between the conduct of vexatious litigants and a psychiatric disorder or mental illness..”

However, every prosecution is arguably private unless it is done by a DPP. There is no legal barrier to filing an information. As stated in Lynch v Sloan [1959] VicRp 85; [1959] VR 656, 658-9
“..the common law right is an important and very valuable public right which will not be held to be abrogated by a statute unless a contrary intention appears clearly from the statute.”
 At Commonwealth level the Crime Acts (Cth) 1914, s.13 makes 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”.


The rarity of truly private prosecutions, as opposed to more common ‘private’ prosecutions by public entities dedicated to the task or entities with standing departments so dedicated, stems substantially from unattractiveness of the financial cost and general burden taken on by a private prosecutor.[3] As outlined beloiw , the more significant a problem is how quickly they can be throttled at birth by the state and Federal Departments of Public Prosecution.

Policy basis

The right of ordinary citizens to bring private prosecutions has a long and well-established history [4]
It is also seen as “a valuable constitutional safeguard against inertia or partiality on the part of authority[5]


The ALRC in its report was very clear on the value and importance of private prosecutions. Private prosecutions assume great importance where powerful private interests may be preventing law enforcement. Decisions by the police and DPPs not to prosecute tend to be ad hoc, informal, un-articulated and unaccountable[1]. They are quite simply not reviewable. The wide-ranging discretion of prosecuting authorities is especially problematic in the prosecution of officials. The barriers to prosecution are very high and “the issues are almost inevitably highly politicised and there can be considerable resistance by state officials, unions and other interest groups to the prosecution of individuals” ..in such circumstances a private prosecution may be one of the only means open to highlight the problems raised by such cases” [2].


“the standing of a private person to prosecute before the courts serves as an important safeguard against an improper intrusion of political considerations into the decision whether to prosecute”[3];
“..the right of a private citizen to act should not be constrained where public authorities merely choose not to act at all”[4];

A measure of regard that the legislature has for private prosecutions can be seen in the fact that legal aid is of available to private informants in New South Wales;[5]
Counterbalancing these positives is the fear of the vexatious proceeding designed to harass and persecute.
In the circumstances of all these green lights how hard is it to bring one ?


The substantive law

Public benefit


The threshold condition for a private prosecution is that the breach of law to be prosecuted is of a public nature. The principle is that an information for an offence against an enactment for the benefit of the public at large may be laid by any person whomsoever: see Sargood v Veale [1891] VicLawRp 127; (1891) 17 VLR 660. This test appears easily met even if there is a private element because law enforcement benefits us all.
In Sargood, Mr Sargood, manager of a property of  Wilson brought an information against Veale for stealing wood from Wilson’s property. The court said:
 An information for an offence against an enactment for the benefit of the public at large may in general be laid by anyone, independently of any authority from the party or parties to whom the penalties are to be recovered are awarded by law


 It is not the law that a personal interest in the prosecution of an offence removes the existence of a public benefit or public nature. In Armstrong v Hammond [1958] VR 479 at 480 – 481 the court noted in relation to an offence of procuring people to chop down trees on the Rosebud foreshore:


It is true that it relates to both private and public property but the public is as much interested in the protection of private property against wilful larceny or damage as it is in its protection against theft” at 481
Similarly in Brebner v Bruce [1950] HCA 36; (1950) 82 CLR 161 (23 October 1950)
…the enforcement of the criminal law is generally a concern of the public. Wills J. said in Grant v. Thompson (1895) 72 LT 264, at p 265 , “Every person has an interest, and is allowed to put the law in motion in criminal matters.” McTiernan J
NAB v McFarlane concerned, inter alia, breaches of the Crimes Act 1958 and is thus authority for the proposition that that statute does not contain provisions restricting the common law right.

Process


The prosecution of most criminal offences is reserved to the States notwithstanding that the criminal code breached may be federal.


A private prosecution is subject to almost identical checks and balances of a standard police or DPP prosecution. For example a charge-sheet or indictment must comply with Schedule 1 of the Criminal Procedure Act (Vic) 2009 ss. 6, 159. The charge-sheet must be filed with a registrar of the Magistrates’ Court. The numerous requirements in Victoria are set out in the Criminal Procedure Act 2009 and the Magistrates Court Criminal Procedure Rules 2009 the minutiae of which are not set out in this article. An information must plead the charges properly to avoid duplication and make clear the basis of the offence.


An information (charges) may be filed (laid) by a company.[11] Under s 69 of the Judiciary Act (Cth) 1903 indictable offences against the laws of the Commonwealth are to be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or such other person as the Governor-General appoints in that behalf.

Control by the DPPs

ALRC27 frankly acknowledges and considers the powers of the Commonwealth Director of Public Prosecutions (“CDPP”) over prosecutions and the proper use of such powers. The DPPs are in practice the main obstacle to private prosecutions.


Prosecutions may be commenced privately in summary or indictable matters but, if indictable, are subject to being taken over by the relevant Attorney-General or DPP. See Crimes Act 1914 (Cth), s 13; Sankey v Whitlam (1978) 142 CLR 1; 53 ALJR 11; 21 ALR 505; Price v Ferris (1994) 34 NSWLR 704; 74 A Crim R 127 (CA).


The state DPPs have the power to take over and discontinue proceedings, both summary and indictable: Public Prosecutions Act, 1994 (Vic) s.22(1)(b)(ii).[12] The Commonwealth DPP has the same power: Director of Public Prosecutions Act (Cth) s.9(5). It has been held that a decision to discontinue (nolle prosequi) is not liable to judicial review: Stefanovksi v Magistrates Court of Victoria[2004] VSC 313 at [13].
Once, in the event of a nolle prosequi, one could establish a grand jury under to override such a decision: Crimes Act(Vic) 1958: s.354. This procedure was abolished by the Criminal Procedure Act: s.253. Certain types of nolle are classified as “special decisions” which must go to a properly comprised Directors Committee: s.22 Public Prosecutions Act, 1994. These include decisions of high public profile or notoriety and decisions which for some other reason the director thinks should be so characterized. The final decision is, again, unreviewable.


Thus a common problem is that the Attorney General can take over and withdraw the charges as in Attorney-General for the State of Victoria v Shaw [2007] VSC 148 (17 May 2007)[13].

The Commonwealths prosecution policy states:


“…the private prosecutor will be permitted to retain conduct of the prosecution unless one or more of the following applies:

(a) there is insufficient evidence to justify the continuation of the prosecution, that is to say, there is no reasonable prospect of a conviction being secured on the available evidence;
(b) there are reasonable grounds for suspecting that the decision to prosecute was actuated by improper personal or other motives, or otherwise constitutes an abuse of the prosecution process such that, even if the prosecution were to proceed it would not be appropriate to allow it to remain in the hands of the private prosecutor;
(c) to proceed with the prosecution would be contrary to the public interest – law enforcement is necessarily a discretionary process, and sometimes it is appropriate for subjective considerations of public policy, such as the preservation of order or the maintenance of international relations, to take precedence over strict law enforcement considerations;
(d) the nature of the alleged offence, or the issues to be determined, are such that, even if the prosecution were to proceed, it would not be in the interests of justice for the prosecution to remain in private hands;
(e) the nature of the charges do not disclose an offence under any Commonwealth law; or
(f) the Court in which the private prosecutor has commenced proceedings has no jurisdiction.


While reasons need not be given and any CDPP decision is unreviewable the private prosecutor who’s proceeding is quashed must simply guess which of the above reasons has been acted on or whether there has been the very thing private prosecution are meant to safeguard against – improper intrusion of political considerations into the decision whether to prosecute  (ALRC27).

Current practice:


The writer has recently attempted a private prosecution at state and Federal Level of the Fair Work Building Inspectorate (“FWCA”) on the grounds of allegedly misleading a commonwealth officer, namely the Federal Circuit Court. The Federal provision relied on was 137.1 of the Federal Criminal code makes it an offence to give information to another person knowing that the information is false or misleading when the information is given to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth or in compliance or purported compliance with a law of the Commonwealth.


The FWCA had prosecuted a company, Linkhill Pty Ltd, for offences under “sham contracting” provisions of the Fair Work Act the gravamen of which was underpayment of workers by avoiding paying them the award. The FWCA successfully sought penalties of $313,500 on the basis that 10 workers had been considerably underpaid differing sums. On appeal to the Full Court of the Federal Court Linkhill has submitted that the workers were actually paid sums up to $96,000 in excess of the award and that the Federal Circuit Court had been deliberately misled by the FWCA.[14] The costs of the prosecution of Linkhill easily exceed $1 million.
After the information was successfully filed and served on the FWCA the CDPP the FWCA contacted the CDPP seeking that it take over and discontinue the prosecution. The CDPP sought submissions and factual background from the informant and in particular:


a full report of the circumstances including facts of the matter” and
“any other submissions concerning this matter that Mr Morgan wishes make, including whether he is agreeable or opposed to the director taking over proceedings and carrying on or discontinuing them”;
The CDPP has the statutory power to make such a request: S.12.[15]
The CDPP considered the matter for a short period and then informed Linkhill that it would take over the prosecution and discontinue it without giving reasons. No underlying rationale was disclosed. The writer can only speculate.


A prosecution under state law was filed for attempting to pervert the course of justice. That Information has not been released out of the Magistrates Court registry. Its status is unknown. Because the number of private prosecutions being attempted is too few and statistics on them are little known the policy of the DPPs as practiced as opposed to the benign statement in the Commonwealth prosecution policy is also unknown. In its submission to the Victorian parliamentary inquiry into vexatious litigants the CDPP said it had exercised its power to discontinue “once in 2005-6, 18 times n 2004-5, 14 times in 2003-4 and 7 times in 2003/2004” Importantly it noted that it had exercised the power “..in relation to 11 private prosecutors who commenced private prosecutions against 50 people..Many of the charges were for treason. Many of the individuals charged were politicians, judges, magistrates and prosecutors.” [15a]. 
Private Prosecutions:  if not for public officials what about fraud ?


The VLRC commentary includes the following:


“During consultations we became aware that some litigants inappropriately bring private prosecutions for criminal offences against public officials…
Some of these prosecutions are what would be described in civil proceedings as frivolous, vexatious or an abuse of process of the court. Once the prosecutions are issued they create considerable intrusion into the role of public officers and require significant resources to bring about a resolution”.


This is simply wrong. In the absence of a properly constituted IBAC and in the absence of any whistle blowing legislation worthy of the name private prosecutions against public officials are an important stop gap in an otherwise floppy and incompetent anti-corruption regime. ASIC chairman Greg Medcraft famously described Australia as a “paradise for white collar crime”. What he did not say is that there is peculiar and bizarre disinterest by state and federal police in prosecuting fraud. An ex senior British police officer in the UK with fraud responsibilities interviewed by the writer in 2010 confirmed a similar culture there. The threshold position of police seems to be is that if civil litigation is underway they will do nothing. Once civil litigation is finished they continue, usually, to do nothing. The UK ex-officer concluded what this writer has heard here. Police actually find fraud difficult. The briefs for fraud when they are instigated are usually outsourced to large accounting firms.


This writer has directly experienced or been involved in offering both ASIC and the police pre-prepared briefs containing cogent and coherent evidence about brazen frauds only to be quietly brushed off. Inaction becomes action often after the media spotlight creates discomfort about such decisions. In their defence, funding for investegative agencies quite simply forces them to prioritise.
 As to costs, the attempted FWCA prosecution, described above and taken as an example, was extinguished with a letter and discontinued ‘on the papers’. Any discontinuance, as stated above, cannot be reviewed. It is unclear what the VLRC’s basis for its costs conclusion was but it indicates a significantly negative perception is held some where about private prosecutions. This absolutely contradicts judicial statements about their status as a right and their potential value as a constitutional safeguard.


Justice Weinberg in Miller v Commonwealth DPP [2005] FCA 482 described the number of private prosecutions brought for “wholly improper purposes” as “fortunately few” (at 24-25). Ergo, most, however many were not improper.


At the font of private prosecutions, the UK, private prosecutions are enjoying a resurgence. Specialist firms now exist to assist private prosecutions such as Edmunds Marshall McMahon. The private prosecutions in the UK are very substantial involving losses of millions of pounds.[16]Part of the reason for the resurgence is the market for enforcement created by the reduction in fraud resources of the Police. The British Bankers’ Association has publicly stated that “Due to the inadequate law enforcement resources, many frauds reported by banks and their customers are simply not proactively investigated”.[17]Police units funded by the private sector have proliferated despite a Court of Appeal judgment in 2005 which warned that such practices were “fraught with danger” and risked compromising police impartiality. The deals are allowed under the 1996 Police Act, which gives forces the power to charge for ‘special’ services. The most visible is the Insurance Fraud Enforcement Department which is being funded with a £9 million donation from the Association of British Insurers over three years. This has occurred despite the UK having a Serious Fraud Office with around 300 staff.


The dedicated anti-fraud resources of Australian investigative authorities are much more limited. The prevalence of fraud in Australia is only increasing. If the UK experience is any example prosecution of fraud can be enhanced and increased by a hybrid model, private funding of police and freeing up of private prosecutions. The divergence between Australian judicial statements about the value of private prosecution and the capacity of the DPPs to quietly snuff them out leaves it unclear what the policy of the DPPs would be likely to be if there was an attempt to replicate, in Australia, the UK phenomena of widespread private prosecution.


[1] ATTORNEY GENERAL & ANOR V SHAW [2004] WASC 280 AT [8]. MR SHAW WAS DECLARED A VEXATIOUS LITIGANT UNDER S.21 OF THE SUPREME COURT ACT 1986 (VIC)
[2] AT 602 DURING CONSULTATIONS WE BECAME AWARE THAT SOME LITIGANTS INAPPROPRIATELY BRING PRIVATE PROSECUTIONS FOR CRIMINAL OFFENCES AGAINST PUBLIC OFFICIALS.236 SUBJECT TO A STATUTORY PROVISION RESTRICTING THE IDENTITY OF PERSONS WHO CAN LAY A PRIVATE INFORMATION, ANY PERSON CAN LAY AN INFORMATION FOR EITHER A SUMMARY OR INDICTABLE OFFENCE. SOME OF THESE PROSECUTIONS ARE WHAT WOULD BE DESCRIBED IN CIVIL PROCEEDINGS AS FRIVOLOUS, VEXATIOUS OR AN ABUSE OF PROCESS OF THE COURT. ONCE THE PROSECUTIONS ARE ISSUED THEY CREATE CONSIDERABLE INTRUSION INTO THE ROLE OF PUBLIC OFFICERS AND REQUIRE SIGNIFICANT RESOURCES TO BRING ABOUT A RESOLUTION. IN CIVIL MATTERS ISSUED IN THE SUPREME COURT, THE PROTHONOTARY MAY REFUSE TO ACCEPT AN ORIGINATING PROCESS WITHOUT THE DIRECTION OF THE COURT WHERE HE OR SHE CONSIDERS THAT THE FORM OR CONTENTS WOULD BE IRREGULAR OR AN ABUSE OF THE PROCESS OF THE COURT.237 NO EQUIVALENT RULE EXISTS IN RELATION TO CRIMINAL PROCEEDINGS. THE DIRECTOR OF PUBLIC PROSECUTIONS MAY, HOWEVER, TAKE OVER THE PROCEEDINGS AND, IF APPROPRIATE, WITHDRAW OR DISCONTINUE THE CHARGES.238 THIS PROCESS, NONETHELESS, INVOLVES SUBSTANTIAL COST AND CONSIDERABLE INCONVENIENCE. IN NSW, THE REGISTRAR CAN REFUSE TO ACCEPT CRIMINAL PROCEEDINGS IF THEY ARE NOT WITHIN THE RULES OF COURT.239 CONSIDERATION SHOULD BE GIVEN TO MAKING LEGISLATIVE PROVISION FOR THE REGISTRAR TO ALSO REFUSE TO ACCEPT AN ORIGINATING PROCESS FOR CRIMINAL PROCEEDINGS WHERE HE OR SHE CONSIDERS THAT THE FORM OR CONTENTS WOULD BE IRREGULAR OR AN ABUSE OF THE PROCESS OF THE COURT. THE COMMISSION NOTES THAT A PROPOSAL OF THIS SORT IS BEYOND THE SCOPE OF THIS REVIEW.
[3] ALRC27 At [366]

[4] HABERSBURGER J. IN NATIONAL AUSTRALIA BANK LIMITED V MCFARLANE [2005] VSC 438 CITING ARMSTRONG V HAMMOND [1958] VICRP 77; [1958] VR 479 AT 480 PER HERRING CJ, O’BRYAN, DEANE, SHOLL AND ADAM JJ
 [5] GOURIET V UNION OF POST OFFICE WORKERS  [1978] AC 435 AT 477 PER LORD WILBERFORCE
[6] ALRC27 AT [369]
[7] ALRC27 AT [375]
[8] ALRC27 AT [377]
[9] ALRC27 AT [377]
[10] ALRC27 AT [366]
[11] FRECKLETON CRIMINAL LAW INVESTIGATION & PROCEDURE [4.2.7140] SEE COLONIAL MUTUAL LIFE ASSURANCE CO LTD V ROBERTSON (1987) 23 VLR 52, LOFT V WADE (NO.2) (1989) 24 VLR 216.
[12] THIS PROVISION IS REPLICATED ALMOST EXACTLY IN OTHER STATES.
[13] VEXATIOUS LITIGANT
[14] HEARD BY THEIR HONOURS WHITE, BROMBERG AND NORTH JJ. A DECISION IS PENDING.
[15] DIRECTOR OF PUBLIC PROSECUTIONS ACT (CTH)
[15A] SUBMISSION OF CDPP DATED 2 JULY, 2008 TO LAW REFORM COMMITTEE INQUIRY INTO VEXATIOUS LITIGANTS, PARAGRAPH 11.
[16] FOR EXAMPLE PROSECUTION OF KETAN SOMAIA WHO CHEATED INVESTORS OUT OF £13.5 MILLION BY MUTLI MIRCHANDANI.
[17] ‘ POLICE GIVE UK POLICE FORCES MILLIONS OF POUNDS TO INVESTIGATE CRIMES’ TELEGRAPH NEWSPAPER 24 MARCH, 2015.

 

 

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