In criminal proceedings in New South Wales, the question of costs is often an important one for defendants following the finalisation of proceedings. If you are charged with a criminal offence and the proceedings are withdrawn, dismissed, or resolved in your favour, you may be entitled to have your legal costs repaid by the State—either partially or fully.
An award of costs does not however automatically follow a successful Court outcome. An application must be made to the Court seeking that costs be awarded and certain criteria must be met before costs are ordered.
When Can Defendants be Awarded Costs?
Applications under the Criminal Procedure Act 1986 (NSW)
The rules around awarding costs to defendants for matters finalised in the Local Court are primarily governed by sections 213-214 of the Criminal Procedure Act 1986 (NSW). As a defendant, you may be awarded costs if the proceedings are finalised in your favour and the Court is satisfied:
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,
(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs
If a successful defendant makes out one or more of the grounds above, he or she ought to be awarded costs.
While the specific circumstances which may justify an award of costs are not closed, the following principles are relevant:
- If on the police version of events there was clearly no prospect of success, the proceedings will have been commenced without reasonable cause. It will not be unreasonable, however, to commence proceedings if success depends on one or more arguable points of law.
- If a prosecution fails, and it emerges during the proceedings that the prosecution was aware of matters which suggested that the defendant may not be guilty of the offence, or for some other reason ought not be prosecuted for the offence, and did not reasonably investigate those matters, it may raise the application of this category of costs.
- It is not necessary for the defendant to prove that the investigation fell grossly below optimum standards. Also, to find the conduct of the investigation of a particular case was unreasonable does not necessarily impugn the general competence, far less, integrity, of those responsible for it.
- The Court may have regard to the failure to investigate or interview witnesses where the prosecution ultimately relies upon a particular witness but not others.
- Failure to call all possible material witnesses can be unreasonable, even in the absence of proof of what that witness will say.
- The expression “exceptional circumstances” is a broad one. The question essentially is whether or not there was any relevant conduct by the prosecutor which would make it just and reasonable to award costs in favour of the defendant.
Should the Court orders costs under the Criminal Procedure Act 1986, they must set a quantum of costs to be repaid that is just and reasonable. Generally, evidence is presented as to the costs incurred by the defendant during the course of defending the proceedings.
Applications under the Costs in Criminal Cases Act 1967
Separate to the powers contained in the Criminal Procedure Act 1986 (NSW), a successful defendant in any criminal court can be awarded a costs certificate under the Costs in Criminal Cases Act 1967, if it is the opinion of the Judge or Magistrate that:
(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and
(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
The following principles are relevant, when considering an application for a costs certificate:
- The regime has a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions. Its provisions should not be narrowly construed so as to defeat the achievement of its general purposes.
- The task of the Court is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings.
- The hypothetical question is addressed to evidence of all of the relevant facts. Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings.
- Costs may be awarded where the evidence upon which the Crown case depended has been demonstrated to be evidence from a witness very substantially lacking in credit.
If the Court is satisfied that it is appropriate to award a certificate, the quantum of costs to be awarded under the certificate is then determined by the Department of Communities and Justice, following assessment.
Suitors’ Fund Act 1951 (NSW)
Circumstances where costs may be awarded under the Suitors’ Fund Act 1951 (NSW) are comparatively rare and generally limited to cases when criminal proceedings are aborted due to no fault of the defendant – such as the death or prolonged illness of a judicial officer.
Conclusion
Defending a criminal prosecution can often come at significant financial costs to a defendant. Should you obtain a positive outcome at the finalisation of proceedings it is imperative to obtain immediate advice on the availability and merits of an application seeking to recover costs.
Should you or someone you know be charged with an offence, it is essential you receive legal advice at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) or Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
