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Choosing an effective path for prosecution

MOST businesses are victims of crime perpetrated by an employee at some time. Do you call in the police? Can you sack the employee? Dealing with fraud committed by an insider can be a legal and industrial minefield.

While private criminal prosecutions are being touted as the answer for larger scale fraud, your local detective may be still be your least expensive option for smaller matters.

Private criminal prosecutions traditionally have been the province of malicious or vexatious litigants seeking to maximise distress to a foe.

A few lawyers, using their police experience, now add another dimension to legal dilemmas.

“A private prosecution is an effective but ignored business tool. It is most often faster, cheaper and more effective than a normal civil action,” said Graham Pidco, a law lecturer at UWA and partner of law firm Mark Andrews and Associates.

“It can result in gaol sentences and in court-enforced compensation payments, backed by access to a wider range of assets than for a civil order.

“With the advantages of speed, effectiveness and cost, it’s surprising more businesses don’t use private criminal prosecutions. Business lawyers work mostly with the civil code. It’s the police who have experience in handling criminal matters.”

With extensive experience as former Criminal Investigation Branch officers, Mr Pidco and Mr Andrews have more than 30 years’ combined police experience.

“The WA Police service is a professional organisation with many competent investigators. The fact is that its resources are limited,” Mr Andrews said.

“At the moment, parties lodging complaints at the major fraud investigation unit are being advised that they would be waiting at least two years before an investigation was commenced.”

The apparent delays in the major fraud squad have been exacerbated by the number of finance brokers’ scandal investigations. However, smaller crimes are being dealt with in the conventional manner in a much shorter time frame.

An employee who stole thousands of dollars from Snow White Drycleaners in Dalkeith went through the full court process within six months.

“We thought the local police provided good service. We expected the matter to drag out for months but it was resolved very quickly,” Snow White proprietor Alan Terry said.

“The employee pleaded guilty. He paid back most of the money and received a 12-month good behaviour bond.”

The District Court List Clerk confirmed that less serious matters, dealt with in the Court of Petty Sessions, could be finalised much faster than civil or criminal matters in the District Court.

“Most civil matters can easily go for two years before being listed for trial,” Mr Pidco said.

“This is where it is imperative to seek legal advice about the collection and strength of evidence.

“With delays like that, evidence is often lost and witnesses become unavailable, while offenders can spirit away any proceeds and assets.”

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