Australia: 10 tips for statutory prosecutions

Last Updated: 5 December 2017
Article by Troy Webb

We have represented various State and local regulatory authorities in prosecutions in Queensland that involve a wide range of statutory offences. This Focus article provides some insight into practical tips and tricks for commencing statutory prosecutions by way of complaint and summons in the Magistrates Court of Queensland. Having a good understanding of the points below will, in our experience, help secure the best outcome.

  1. Duties of prosecutors

The prosecutor is in an adversarial relationship with the accused, while simultaneously owing a duty to the court to establish the whole truth. It is the duty of the prosecutor to assist the court to ensure that justice is done and not to strive for a conviction at all costs, but to present the case fairly.

  1. Burden of proof and standard of proof

The legal burden of proof usually rests with the prosecution to establish, beyond reasonable doubt, the elements of the offence and to rebut any defence raised by the accused or which appears from the evidence. However, the wording of a statutory provision may expressly reverse the legal burden of proof on the accused (for example, in respect of some statutory defences).Typically offences which are relevant to statutory prosecutions are criminal in nature and accordingly need to be proved to a higher standard which is beyond a reasonable doubt.

  1. Time limits

Many statutes contain time limits within which prosecutions of offences under the statute must be commenced. Section 52(1) Justices Act 1886 (Qld) applies where a statute does not contain a limitation period and it requires a complaint to be made within one year from the time when the matter of the complaint arose.

  1. Identity of the defendant

A reference to a 'person' in a statutory offence can be to a natural person or to a corporation as corporations also have legal personality (see section 32D Acts Interpretation Act 1954 (Qld) and section 124(1) Corporations Act 2001 (Cth)).

However, businesses do not have legal personality, as they do not fall within the definition of 'corporation' in section 57A Corporations Act 2001 (Cth). The appropriate entity to prosecute in those circumstances is the owner of the business, which may be, for example, an individual, corporation, partnership or trustee of a trust.

  1. Elements of the offence

It is critical to check that you have the correct version of the law, which is almost always the law as it was in force at the date of the offence. You should then ascertain the elements of the offence. There is often no case law on the elements of offences. It almost always requires the interpretation of the words of the offence provision in line with principles of statutory interpretation. Those principles require you to read the provision, the part of the statute in which it falls, and the statute as a whole. You should also ascertain the meaning of words with reference to (in the following order):

  • definitions in the statute itself, which may be in the section containing the offence, the part of the statute containing the offence provision, or in the general definitions that apply to the statute as a whole
  • if there are no relevant definitions in the statute, the Acts Interpretation Act 1954 (Qld), and
  • if neither assist, dictionaries to identify the word's ordinary and natural meaning.
  1. Evidence review and public interest

After you have identified the elements of the offence, it is useful to prepare a table identifying the evidence you have gathered in support of each element of the offence. Ideally, the table should contain cross-references to the brief of evidence (considered further in the next tip). This will assist you in considering whether you have sufficient evidence to prove each element of the offence beyond a reasonable doubt. If the table reveals gaps in the evidence, you should consider whether you need to collect more evidence or, if no more evidence can be collected, whether you ought to exercise the prosecutorial discretion not to start a prosecution for the offence. Even if the evidence is sufficient, a decision will also need to be made prior to commencement about whether it is in the public interest to prosecute.

  1. Preparing the brief of evidence

This is linked to the previous tip. It is important that a brief of evidence is prepared prior to commencing a prosecution. This is to ensure that you have sufficient evidence to lay the complaint and summons, and also because the defence is entitled to request (and the prosecution is obliged to provide) a copy of the brief of evidence at any stage after a prosecution has been commenced. Briefs of evidence should be clearly set out and easy to follow.

  1. Preparing the complaint and summons

A complaint must contain sufficient particulars of the offence by using the words of the Act, order, by-law, regulation or other instrument creating the offence, or similar words (section 47(1) Justices Act 1886 (Qld)). There must also be a sufficient description of persons and properties in the complaint (refer to section 46 Justices Act 1886 (Qld) and section 565 Criminal Code). The summons should be prepared to reflect how it will be served on the defendant (refer to the next tip).

  1. Serving the summons

Section 56 Justices Act 1886 (Qld) sets out how the summons must be served on the defendant. The defendant must be served with a copy of the complaint. In respect of any offence, the summons can be served personally on the defendant or by leaving it (and a copy of the complaint) with a person at the defendant's usual place of business or residence, or place of business or residence last known to the person who serves the summons. In the case of a summons to answer a complaint of a simple offence or breach of duty, service may also be effected by sending the complaint and summons by registered post, at least 21 days before the date on which the defendant is, by the summons, required to appear, to the defendant's place of business or residence last known to the complainant.

  1. Preparing sentencing submissions

If the defendant pleads 'guilty' to a charge or if the defendant is found guilty of it after a trial, the defendant will be sentenced. The sentence will be determined by the Magistrate but the prosecution plays a key role in directing the Magistrate to relevant legal principles and comparable cases to assist him or her in exercising the sentencing discretion. We suggest that the prosecution prepare sentencing submissions that provide a submission on penalty with reference to, in addition to any other relevant factors:

  • comparable cases: following the High Court decision in Barbaro v R; Zirilli v R (2014) 253 CLR 58, the Queensland Parliament made amendments to section 15 Penalties and Sentences Act 1992 (Qld) whereby a submission may be made stating the sentence, or range of sentences, the party considers appropriate for the court to impose
  • any maximum penalty prescribed for the offence under the statute
  • the factors the Court must have regard to when sentencing and the purposes for which sentences can be imposed, which are set out in section 9 Penalties and Sentences Act 1992 (Qld)
  • the costs sought by the prosecution, noting that the Magistrates Court is permitted to make orders that the defendant pay the complainant such costs as to them seem just and reasonable in all cases of summary conviction (section 157 Justices Act 1886 (Qld)). These matters are typically set out in a Statement of Costs including the costs that are recoverable by the prosecution with reference to the scales of costs in the Justices Act 1886 (Qld) and the Justices Regulation 2014 (Qld), and
  • if appropriate, any submissions as to whether a conviction should be recorded (refer to section 12 Penalties and Sentences Act 1992 (Qld)).Regulatory authorities may benefit from taking on board the above tips to improve their prospects of securing the best outcome.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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