Cost Applications

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RECOVERING COSTS IN CRIMINAL CASES

If you have been acquitted or found not guilty of charges in the Local, District or Supreme Court you might be entitled to make an application to recover some of your incurred costs in defending the matters.

  1. Under the Criminal Procedure Act 1986, the Local Court has the power to order that your professional costs are paid by the prosecutor if the charges against you are withdrawn or dismissed.
  2. Professional costs means costs relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.  Your lawyers’ fees are professional costs.
  3. The Criminal Procedure Act only allows you to apply for costs if your matter was dealt with in the Local Court, and does not extend to successful defendants in District and Supreme Court trials.
  4. In prosecutions conducted by a prosecutor acting in a public capacity, the Court cannot award costs to you without first being satisfied of certain impropriety in the conduct of the investigation, or impropriety in the conduct of the proceedings taken against you.
  5. This applies to any prosecution conducted by the NSW Police Force.
  6. If the hearing of your matter is unreasonably delayed, you can apply to the Court for any costs arising from that delay to be paid by the prosecutor even before the charges against you are withdrawn or dismissed.

It is not sufficient that charges against you were withdrawn or dismissed, there needs to be something in relation to the manner of the investigation or proceedings that make it just and reasonable for a costs order to be made.

To be successful in recovering your costs against the prosecutor, you will need to satisfy the court of one or more of the following:

  1. The investigation into the offence was conducted in an unreasonable or improper manner.
  2. The proceedings were initiated without reasonable cause or in bad faith, or were conducted in an improper manner.
  3. The prosecutor unreasonably failed to investigate any matter they were aware of that suggested you were not guilty or they should not have prosecuted you.
  4. There are exceptional circumstances relating to the conduct of the prosecutor that are separate to 1, 2 or 3.

Whether or not the conduct of the investigation or proceedings against you has included the relevant impropriety will depend on the facts and circumstances of your particular case.

Things to look out for include:

  • The investigation of the charges falls well below the standards and protocols of the NSW Police force, or other investigating body
  • If the evidence that the prosecution have obtained cannot prove the charges that they have laid against and their case is doomed to fail
  • If you have told the NSW Police about witnesses or evidence that suggest you are not guilty and they have refused or failed to speak to those people, or investigate that evidence.

You can simply tell the magistrate who makes the orders that you want to apply for your costs to be paid.

It is up to you to prove that you are entitled to have your costs paid so you should be ready to provide the court with any evidence that establishes impropriety in the investigation or proceedings that you are asserting.

You will need to provide the magistrate with documents that outline and confirm the professional costs incurred in defending the charges, as well as any other material that you think the court should take into account.

It is good practice to tell the prosecutor in advance that you will apply for your costs to be paid if the charges are withdrawn or dismissed.

Applications for costs can be made immediately following the charges against you being withdrawn or dismissed by the court.  It is important to tell the court that you want to make an application for your costs to be paid immediately, otherwise the proceedings will be brought to a close.

If the court decides to award you costs, an order will be made for an amount that the court believes is just and reasonable. That means that you might not get back all of the money that you spent on professional costs.

The amount that is just and reasonable will depend on the complexity of the proceedings, and the volume of evidence involved.

The purpose of an order is to compensate you, and not to punish the prosecutor for bringing the proceedings against you.

Q: I have previously had charges against me and I did not know I could apply to recover my costs. Can I apply now?

A: No, an application has to be made as part of the proceedings. Unless an application is made at the point the charges are dismissed, or the matter is adjourned for an application to be made, the orders of the court dismissing the charges bring the proceedings to a close.

Q: Is there any other way to recover my costs?

A: Yes, if you are not eligible to recover your costs under the Criminal Procedure Act you may be eligible to apply for a certificate under the Costs in Criminal Cases Act.

Q: How much will I get back?

A: If the court decides to award you costs, an order will be made for an amount that the court believes is just and reasonable. That means that you might not get back all of the money that you spent on professional costs.

The amount that is just and reasonable will depend on the complexity of the proceedings, and the volume of evidence involved.

The purpose of an order is to compensate you, and not to punish the prosecutor for bringing the proceedings against you.

Costs in Criminal Cases Act

  1. Under the Costs in Criminal Cases Act 1967, you can apply to recover the costs incurred in the proceedings against you (i) if you are acquitted or discharged (ii) if the Director of Public Prosecutions directs that no further proceedings are taken against you, or (iii) if your conviction is quashed on appeal.
  2. These types of applications are limited to proceedings where a trial has commenced in the Local Court, District Court and Supreme Court of New South Wales.
  3. Applications under the Costs in Criminal Cases Act involve a two step process. First, an application to the court for a certificate. Second, an application to the NSW Government for your costs to be paid.

It is a prerequisite to an application under the CCC Act that you have been acquitted after trial or on appeal, or that the DPP has directed no further proceedings are taken against you after your trial has commenced.  However, that alone is not enough for the court to issue you with a certificate.

In addition, the Court must be satisfied that:

  1. If the prosecution had evidence of all the relevant facts before the proceedings were instituted, it would not have been reasonable to institute proceedings against you
  2. Nothing that you did or omitted to do caused or contributed to the institution and continuation of the proceedings

This means that the court does not consider what information the prosecutor actually had when proceedings were instituted, but instead considers a hypothetical situation in which the prosecutor did know all of the relevant facts at the time of the application.

There is no exhaustive test for what constitutes an unreasonable institution of proceedings, and that question will be answered with reference to the facts and circumstances of any particular case. However, it is clear that it is a different test to the one applied by many prosecution agencies around Australia, namely ‘whether there is a reasonable prospect of conviction’.

Relevant facts include facts established in the proceedings, as well as any facts that can be established to the satisfaction of the court when the application is made.

Applications under the Costs in Criminal Cases Act involve a two-step process.

The first requires you to apply to the court that heard the proceedings for a certificate.  This can be done orally, but telling the presiding judicial officer, or in writing by filing a formal application with the court.  If the proceedings against you have finished, you will need to file a formal application.

The second only arises if you are successful in the first step.  An application is made in writing to the Director-General of the NSW Justice that includes a copy of the certificate.

Applications for a certificate under the Costs in Criminal Cases Act can be made at any time after the threshold requirements have been met.

I have previously had charges against me and I did not know I could apply to recover my costs.  Can I apply now?

Yes, there is no time limit on applications for a certificate under the Costs in Criminal Cases Act.

When has a trial ‘commenced’?>

A trial is defined broadly in the Costs in Criminal Cases Act, and includes preliminary aspects of proceedings.  Accordingly, it isn’t necessary that evidence has been given in the proceedings.  One view is that a trial commences upon presentation of an indictment.

Is there any other way to recover my costs?

Yes, if you are not eligible to recover your costs under the Costs in Criminal Cases Act you may be eligible to apply for costs under the Criminal Procedure Act.

How much will I get back?

The amount to be paid to you will be determined by the Director-General of NSW Justice based on the circumstances of the case.  The amount will not exceed what the Director-General considers to have been reasonably incurred, reduced by any amount already received or that an applicant would be entitled to receive if they exhausted all of their legal rights.

Why Choose Hugo Law Group to Defend You

Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.

Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.

Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.

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At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.

Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.

Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.

As leaders in criminal defence, we know that every story has two sides. We defend yours.

Get in contact with us today or feel free to call us at 02 9696 1361 (Sydney), 02 5104 9640 (Canberra), 08 6255 6909 (Perth), or 07 5552 1902 (Northern NSW) and find out how we can help you.