20. Taking over proceedings

Pursuant to s27(1) of the Justices Act 1959, any person may take out a complaint in the Magistrates Court alleging an offence against another person. However, this provision does not include indictable crimes where the complaint must be taken out by a public officer or the complainant must have the consent of the Director of Public Prosecutions (s27(3)).

Section 12(a)(ii) and (iii) of the Director of Public Prosecutions Act 1973 enables the Director where he considers it desirable to do so to take over and continue or discontinue any criminal proceeding in respect of a crime or an offence alleged by that person to have been committed. In practise, this means the Director can take over any prosecution commenced by a person in the Magistrates Court for an offence whether the complaint was taken out by a public officer or a private individual.

The object of this provision is to ensure integrity, neutrality and consistency in the making of prosecutorial decisions and the conduct of prosecutions.

There may be various reasons why the Director will take over proceedings. These reasons include, but are not limited to, the following:

• Tasmania Police so requests and there is a sound basis for doing so (although normally in these circumstances a prosecutor from the Office would appear on behalf of the complainant without formally taking over the complaint)
• there is no reasonable prospect of conviction
• they appear to be frivolous or vexatious or brought for an inappropriate ulterior purpose
• they appear to have arisen out of a conflict of a predominantly civil nature and/or a civil legal remedy may be available
• they have been brought contrary to advice or a decision by the Director not to proceed
• they have been instituted by police or a private individual and there appears to be a conflict of interest or the risk of unfairness arising from their conduct of the prosecution
• the public interest otherwise requires it, having regard (for example) to the gravity of the offence, its connection with another offence being prosecuted by the Office and all the surrounding circumstances

Where a person wishes to make application for the Director to take over any proceeding, such application should be in writing, setting out the reasons why the Director should take over the proceeding. Any evidence supporting the application should also be provided.

Before a decision to take over a proceeding is made, reasonable notice will normally be given requesting the complainant requesting to provide reasons, if so minded, why such a decision should not be made.

Where the Director takes over a proceeding, the original complainant is removed from the record and cannot be returned to that complaint (see Price v Ferris (1994) 34 NSWLR 704).