Private Prosecutions

The Benefits of Private Prosecutions

Private Prosecutions

In Australia any person, organisation or entity is entitled to bring a criminal prosecution against another party.

Traditionally, a victim of crime would report the incident to the police or other law enforcement agency, who would then investigate, obtain evidence including statements from witnesses, and arrest and interview suspects. The case would then be delivered to a state prosecutor (e.g. the Director of Public Prosecutions) who would determine whether the case had a reasonable prospect of success and that it was in the public interest to prosecute.

Regrettably, law enforcement and public prosecution agencies have a reduced appetite and capability to pursue certain types of criminal wrongdoing – particularly fraud and cyber-crime.

For a victim of a crime, whether individual or corporate, it is a bitter pill to swallow when they are told that the police or relevant enforcement agency will not or cannot pursue the matter.

Where such a hurdle is encountered private prosecutions can provide victims of crime with a viable alternative route to achieving justice. Duxton Hill can run a private prosecution from start to finish.

Examples of criminal wrongdoing that may be privately prosecuted are:

Fraud
Anti-corruption
Charity Fraud
Cyber-crime
Insurance fraud
Intellectual property and counterfeiting
Perverting the course of justice

Private prosecutions can send a powerful message that you or your company will not tolerate crime.

The process, if pursued correctly, can be more efficient and effective than action taken by public law enforcement. It allows the individual or corporate as prosecutor to draw on experienced, professional, and trusted investigators and lawyers to navigate the criminal justice system and take successful action to deter criminal activity, bring wrongdoers to justice and where necessary protect your reputation and brand.

Starting a private prosecution with Duxton Hill

Commencing a private prosecution is not to be undertaken lightly.

By involving Duxton Hill from the earliest stage we can advise you on the best course of action suited to your case. On some occasions, a private prosecution may be the appropriate response but on others, it may be more advisable to try and facilitate the involvement of the state prosecution agencies or to commence civil litigation.

How we work with you

Duxton Hill is unique because we are a multidisciplinary team of investigators and lawyers capable of investigating crime and conducting a private prosecution from start to finish.

In the investigation stage, our lawyers work closely with investigators to ensure all available evidence is obtained in admissible form, quickly and cost-efficiently. While we can perform investigations in-house, we also work effectively with investigators from private firms, or investigators employed by companies or government.

Following the investigation stage, we conduct all necessary work during the prosecution stage. We can appear as your advocate in court or alternatively may engage counsel to appear if requested by you or if it is deemed appropriate in the circumstances of the case.

Before Andrew Tragardh founded Duxton Hill he was a barrister at the Victorian Bar and one of the barristers on the Commonwealth Director of Public Prosecutions list of preferred counsel.

Frequently Asked Questions about Private Prosecutions

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What is a private prosecution?

Traditionally a victim of crime would report the incident to the police or enforcement body. The relevant body would then investigate the matter, gather evidence, prepare witness statements and arrest and interview the suspects. The case would then be presented to a state prosecutor who would determine whether it had sufficient evidence to support a successful prosecution and that such a case was in the public interest. As a result of the budget constraints and inadequate training in public law enforcement, a victim cannot always have confidence that matters will proceed in this way, or if they do, too often the outcome does not result in a successful conviction.

It is a common misconception that this method for the perpetrator of a crime to be prosecuted, is the only way to bring the offender to justice. Through what’s called a private prosecution, any person or company can bring criminal charges against another person or company

Private prosecutions are criminal cases commenced and managed by individuals, businesses, and other entities (e.g. charities, sporting bodies) who consider they are the victim of crime.

Private prosecutions are a vital remedy when, for whatever reason, criminal proceedings have not been brought by the usual prosecution authorities. They are an important safeguard against state inertia, incompetence, and bias.

Can I bring a criminal action against another person or company?

Yes. You can report a crime to public enforcement agencies, for example the police or the Australian Securities Investments Commission (ASIC). However, government cuts to enforcement agencies mean they do not have the resources or training to combat all crime that is reported and as a result many victims are left without justice.

Alternatively, any person or company can bring a private prosecution in Australia.

Corporate Criminal Liability

It is now well accepted that a corporation, as a separate legal entity, can be convicted of a criminal offence and have a criminal penalty imposed upon it.

There are also numerous offences created under statute that specifically apply to corporations, particularly in the area of occupational health and safety.

Why would I bring a private prosecution?

There are many advantages to a private prosecution; they are almost always quicker, more focussed and more efficient than public prosecutions, especially in cases involving fraud. People or companies might use a private prosecution where law enforcement agencies have refused to investigate or prosecute a crime, where a state prosecution has failed or where an individual or a company wishes to have more control over the timing and execution of their criminal case.

There are many reasons why you may wish to commence a private prosecution, including the following circumstances:

when you are told by police that your complaint is a civil one, when in fact there is evidence of criminal wrongdoing;
if the offender has no financial means to pay a judgment debt after a civil case is completed, yet the public interest demands the person still be punished for their criminal conduct and objectives of general deterrence apply;
when you don’t want to wait for years for the matter to come to Court;
when the police (or other law enforcement agency) refuse to investigate or prosecute the matter;
if you have no confidence that law enforcement will secure a conviction because the matter (such as a financial fraud) is too complex for law enforcement to understand or sufficiently resource; or
where you wish to exercise more control over the timing and execution of the criminal case.

Advantages to a private prosecution

If you want to pursue private prosecution proceedings, Duxton Hill can show you all of the advantages of bringing a private case to court.

There are many advantages in choosing the option to privately prosecute. They include:

the ability to have more control over the proceedings from start to finish (unlike a public prosecution where you forfeit control once the report is made to law enforcement);
you are not limited to prosecuting as a company but can also prosecute as an individual;
a private prosecution is much faster than a public prosecution – principally because the time taken to investigate the matter is much quicker;
you do not have to wait for police or the crown prosecution service to deal with your proceedings if the case is not classed as high priority;
you can choose the team of investigators and lawyers best suited to do the job;
the right team of professionals supporting you vastly improves the prospects of a conviction; and
saving time in many cases means saving money which again is a major advantage of private prosecution.

Choosing Duxton Hill to support you in your private prosecution proceedings guarantees you get highly experienced investigators and lawyers familiar with local and International law. This is a huge advantage as we are able to advise you on the best course of action every step of the way to ensure you have the best chance of winning your case.

By taking advantage of private prosecution proceedings you can make sure you don’t let others “get away with it” – this can also have a real deterrent effect on others especially in the cases of counterfeit and fraud as well as general crime cases.

Please contact our experienced team who will fight to help you reach the legal outcome you deserve.

Who can bring a private prosecution?

Any person or company can bring a private prosecution in Australia.

The process of a private prosecution

How much does a private prosecution cost?

Costs can range from about $10,000 upwards.

Costs depend on:

the amount of investigatory work required – number of relevant documents, and number of witnesses and complexity of the crime (i.e. an investigation into allegations against one person is likely to involve less work than in a matter concerning a conspiracy to defraud by multiple persons);
the attitude of the defendant when charges are first laid – if he/she is willing to plead guilty at the outset (typically when the investigation has been thorough)
whether (and how early) a suspect pleads guilty or not guilty, or if the matter is defended up to a full hearing (before a judge or jury);
whether (and if so how early) the relevant prosecution authority exercises its power to take over the private prosecution.

Can I get compensation at the end of a private prosecution?

Yes.

The purpose of a private prosecution is different to that of a civil claim. A private prosecution is brought to seek justice. However, if a defendant is convicted of a criminal offence, the court has the power to pay a compensation order to the victims.

In some cases, a private prosecution may also be assisted by recourse to confiscation legislation – such as a prosecution under the Trade Marks Act 1995 (Cth).

The criminal powers of recovery are very strict and the defendant will be required to explain where all the proceeds of his / her crime are and how they have been dissipated. If the defendant fails to adequately explain this, for example because they have hidden assets, they will be required to repay the full amount even if, for example, they have been declared bankrupt.

Does a private prosecutor need to inform the police or crown prosecution first?

No, although it can often be a good idea. It can often be advisable in complex cases, or cases of significant public interest. We will advise you of this if it is considered necessary.

Examples of Criminal Wrongdoing

Fraud

Fraud prosecutions can be complex and to the inexperienced, overwhelming.

We develop comprehensive case strategies to address our clients’ objectives and provide effective case management in furtherance of these aims.

The type of matters Duxton Hill can assist with include the following:

any type of fraud or false representation/dishonesty in a commercial or employment setting which has resulted in loss to a company or individual;
theft, fraud, dishonesty, or money laundering in relation to solicitors, accountants, and other professionals who have abused their position of trust;
data theft by ex-employees or current employees;
loan, insurance, mortgage, and pension fraud;
investment fraud;
cyber-fraud;
fraud in joint venture contracts, such as the dishonest re-routing of a percentage of joint venture funds to one party (locally or cross border); and
fraud in commercial contracts with banks and financial institutions.

A private prosecution can allow an individual access to justice that is otherwise inaccessible through traditional state law enforcement avenues. Budget cuts to the police and ASIC in recent times has limited the prioritisation of fraud investigations and prosecutions as reports continue to rise.

When a fraud is committed against a company, private prosecutions can have a significant deterrent effect. A private prosecution sends a clear message to a potential fraudster (who may be an employee) that a company defrauded will take robust and decisive action. We are fully aware of the commercial and reputational considerations of concern to our clients. We frequently advise on the best way to address these concerns.

Anti-corruption

We can investigate and prosecute bribery and corruption offences, ranging from assisting companies in preliminary internal investigations to leading cross border, large-scale investigations and prosecutions.

Our team comprises lawyers and investigators with a wealth of experience in some of Australia’s leading fraud and corruption cases, and includes former staff from anti-corruption commission and law enforcement.

We are innovative, technical, strategic and results-driven in our approach.

Charity fraud

We understand that charities help the most vulnerable in our society principally from the money received through fundraisers. Those who choose to steal donations manipulate the generosity of donors and breach the considerable trust placed in them by charities and the public. It is for this reason that there is a heightened public interest in ensuring charity fraudsters are brought to justice.

We understand the sensitivity, reputational concerns and importance of the work charities do. We will work closely with you to ensure that we understand your culture, brand and strategy before commencing a prosecution; and to ensure that the deterrent message sent to criminals by a private prosecution is carefully and effectively controlled.

Cybercrime

Cybercrime offences require a rapid response to minimise commercial and reputational loss to companies and individuals. A private prosecution enables victims to take swift and critical action against perpetrators.

We deal with the following:

Cyber fraud and theft; and
Data theft and Data Protection breaches by ex-employees or current employees.

The nature of cybercrime offences means that they often span multiple jurisdictions.

Cybercrime investigations and prosecutions generate a vast amount of electronic material. At Duxton Hill, our team are experts on evidence gathering, e-disclosure and document review. We can provide a rapid and comprehensive service to the influx of data that is generated from cybercrime cases.

Following a successful and comprehensive investigation, we can privately prosecute offenders and advise on the benefits of applying for asset freezing orders, including cryptocurrency and crypto assets. We have substantial experience obtaining and robustly enforcing court orders on behalf of our clients.

Insurance fraud

Insurance fraud involves any misuse of insurance policies to illegally gain or benefit from the insurance cover.

This type of fraud occurs across every type of insurance, from motor (including “crash for cash” and stolen car frauds) and home cover (such as intentional damage, fraudulent theft and overstated property values), to travel and health insurance.

As well as increasing premiums for policyholders, insurance fraud exacts a financial toll on wider society, as public resources, including the police and courts are diverted to deal with fraudulent claims.

Insurers invest hundreds of millions dollars in fraud identification and prevention each year; however, the problem persists, as the volume and sophistication of frauds continues to increase.

The number of fraudulent claims tends to rise after natural disasters, pandemics, recessions, or other unusual events that put economic pressure on individuals.

The consequences for those found to have committed insurance fraud vary. At the most lenient end of the scale, the claim may simply be refused, but the policy could also be cancelled and recorded with the Insurance Fraud register.

The most punitive outcome of a proven fraudulent claim is a criminal conviction and a potential prison sentence for the fraudster.

Due to significant budget cuts to the police and prosecution agencies, many confirmed insurance frauds are not being prosecuted, and many are not even investigated by law enforcement.

Increasingly, insurance companies are left to investigate matters for themselves and are seeing the benefits of bringing a private prosecution against those making fraudulent claims, rather than rely on the public justice system.

Intellectual Property and Counterfeiting

Trade in counterfeit products has staggering financial implications for businesses. It costs the economy billions of dollars a year in forgone company sales, overpriced products and tax revenues.

According to data from the Global Trade in Fakes report by the OECD and EUIPO, trading with counterfeit goods amounted to roughly $449 billion in 2019. The most common imported fakes include mobile phones and accessories, clothes, footwear, handbags, and games.

Counterfeiting causes financial harm to companies and the ATO; it causes reputational damage, is credited with funding organised crime and has health and safety implications. It is a problem that all companies with a brand to protect must consider seriously.

Trade Mark Offences

A trade mark is any sign which can distinguish the goods and services of one trader from those of another. It is closely associated with business image, goodwill, and reputation.

Private prosecutions can be used as an effective tool – against large or small targets – to combat the ever-increasing counterfeiting of goods and subsequent financial loss to companies. Duxton Hill can prosecute offences under Part 14 of the Trade Marks Act 1995 (Cth) , in particular, the unauthorised use of trade marks in relation to goods under section 148, to which specific enforcement responsibilities are attached.

In appropriate circumstances a private prosecutor in a matter concerning trade mark offences may also invoke forfeiture order provisions under Part 2.2 & Part 2.3 of the Proceeds of Crime Act 2022 (Cth).

Copyright Infringement

Breach of copyright is a criminal offence if a person makes, sells, trades or imports an article that infringes copyright in circumstances where they knew or ought to have known of that infringement (s 132(1) Copyright Act 1968 (Cth)). It is an offence to simply distribute an infringing item for the purpose of trade, or to an extent that ‘affects prejudicially the owner of the copyright’ (s 132(2)).

Duxton Hill can investigate alleged breach of copyright and if appropriate commence a criminal prosecution for the breach. Prosecutions for copyright offences can be brought in the Federal Court of Australia or in state courts with criminal jurisdiction, including local and Supreme Courts (section 133A).

When a person is charged with a copyright offence, whether they are convicted or not, the court may order the destruction or delivery up of articles that are circumvention devices, infringing copies or devices to be used to make infringing copies.

Tobacco and Related Products offences

Private prosecutions may be commenced regarding the sale of illicit tobacco products.

Perverting the Course of Justice

The victims of conduct designed by others to frustrate or hinder the administration of justice often pay a devastating and life-changing personal price. We understand the impact of this type of offence and the importance of bringing those responsible to justice.

Examples of perverting the course of justice cases include: