RECOVERING COSTS IN CRIMINAL CASES IN THE LOCAL COURT
- Under the Criminal Procedure Act 1986, the Local Court has the power to order that your professional costs are paid by the prosecution if the charges against you are withdrawn or dismissed.
- Professional costs mean costs relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court. Your lawyers’ fees are professional costs.
- 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.
- 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.
- This applies to any prosecution conducted by the NSW Police Force.
- 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to the Court for any costs arising from that delay to be paid by the prosecutor even before the charges against you are withdrawn or dismissed.
It is not sufficient that charges against you were withdrawn or dismissed, there needs to be something in relation to the manner of the investigation or proceedings that make it just and reasonable for a costs order to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:
- The investigation into the offence was conducted in an unreasonable or improper manner.
- The proceedings were initiated without reasonable cause or in bad faith, or were conducted in an improper manner.
- 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.
- 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 has 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 or your lawyer can simply ask the Judge, who makes the orders that the matter has been dismissed, that you wish 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 Judge 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 or that you would like to reserve your position on costs, 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.
Costs are paid by the prosecutor to the Registry of the Local Court where your matter was heard.
The Court may make orders as to when the costs are required to be paid. You may be able to enforce the costs order should the prosecutor fail to comply with the costs order in time.
COSTS IN CRIMINAL CASES
If your matter proceeds before the District Court you can make an application for costs pursuant to the Costs in Criminal Cases Act.
A certificate for costs may be awarded by the Court if after the commencement of a trial in the proceedings a defendant is acquitted or discharged in relation to the offence concerned.
Once a certificate has been granted by the Court, the Department of Communities and Justice will undertake a costs assessment.
The Act states the maximum amount payable, is the amount that in the opinion of the Director-General, would reasonably have been incurred for costs by the applicant, reduced by any amounts that in the opinion of the Director General.
Costs are assessed at the Attorney-General’s rate being:
| Legal representative | Hourly rate | Daily maximum |
| Solicitor | $315.40 plus GST | $3,154 plus GST |
| Junior counsel | $315.40 plus GST | $2,365 plus GST |
| Senior counsel | $521.74 plus GST | $5,217 plus GST |
Note: you can also make an application for costs under the CICCA if your matter proceeded summarily.
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.
Further advice:
This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice about this offence or any other criminal offence, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney), (02) 5104 9640 (Canberra) or (08) 6255 6909 (Perth) or by email at [email protected]
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