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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions