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  • Writer's pictureGeoff Harrison

Costs

Updated: May 5


Costs, Criminal Barrister, Criminal Lawyer, Suitor's Fund, Costs in Criminal Cases s214 Criminal Procedure Act

Published by Geoff Harrison | 14 August 2023


An accused's costs in criminal proceedings can be awarded at the end of proceedings in the Local Court as per ss213 & 214 of the Criminal Procedure Act 1986 ('the Act'). Unlike in civil proceedings, costs do not follow the event in criminal matters and are limited to the grounds within s214 of the Act. The applicant must specify the grounds upon which the applicant relies and prove said grounds on the balance of probabilities: Dong v Hughes [2005] NSWSC 84.


As to s214(1)(b) of the Act and that proceedings were initiated without reasonable cause - From the Bench Book:


In Canceri v Taylor (1994) 123 ALR 667 at 676 (per Moore J) it was held that the test, was whether on the facts known to the informant at the time proceedings commenced, there was no substantial prospect of success. If on the informant’s own 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.


Also see Burns v Seagrave where s214(1)(b) does not apply if a prima facie case has been established.


Other relevant sources and cases are set out below.


Other Sources:


Cases re test for costs under s214 of the Act:


For Domestic Violence Matters and Apprehended Violence Orders see ss 99 and 99A of the Crimes (Domestic and Personal Violence) Act 2007 below and the following cases:

Under Costs in Criminal Cases Act 1967:

Commonwealth Offences:


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CRIMINAL PROCEDURE ACT 1986 - SECT 213

When professional costs may be awarded to accused persons


(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.


(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.


(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because--

(a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or

(b) the matter is withdrawn or the proceedings are for any reason invalid.


(5) The order must specify the amount of professional costs payable.


CRIMINAL PROCEDURE ACT 1986 - SECT 214

Limit on award of professional costs to accused person against prosecutor acting in public capacity


(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following--

(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.


(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.


(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.


CRIMINAL PROCEDURE ACT 1986 - SECT 216

Costs on adjournment


(1) A court may in any summary proceedings, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.


(2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.


(3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.


(4) An order may be made whatever the result of the proceedings.


CRIMINAL PROCEDURE ACT 1986 - SECT 217

Enforcement of costs orders


An order made by a court under this Division for the payment of costs is taken to be a fine within the meaning of the Fines Act 1996.

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CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 70

Limit on costs awarded against public prosecutor


(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied--

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or

(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter--

(i) that the prosecutor was or ought reasonably to have been aware of, and

(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.


(2) This section does not apply to the awarding of costs against a respondent acting in a private capacity.


(3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979 ) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.


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COSTS IN CRIMINAL CASES ACT 1967 - SECT 2

Certificate may be granted


(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:


(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b) where, on appeal, the conviction of the defendant is quashed and:


(i) the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii) the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.


(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.


(3) In this section,

"trial" , in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.


COSTS IN CRIMINAL CASES ACT 1967 - SECT 3

Form of certificate


(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(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.



COSTS IN CRIMINAL CASES ACT 1967 - SECT 4

Payment of costs


(1) A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate.


(2) The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in subsection (3).


(3) The maximum amount is the amount that, in the opinion of the Director-General, would reasonably have been incurred for costs by the applicant in the proceedings, reduced by any amounts that, in the opinion of the Director-General, the applicant:

(a) has received or is entitled to receive, or

(b) would, if the applicant had exhausted all relevant rights of action and other legal remedies available to the applicant, be entitled to receive, independently of this Act, because of the applicant's having incurred those costs.


(4) The Director-General may refuse an application under this section if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable.


(5) The Director-General may defer consideration of an application under this section for as long as the Director-General considers it necessary to do so to enable the Director-General to ascertain any amount referred to in subsection (3).


(6) The amount specified in the determination is payable from the Consolidated Fund to the applicant or to another person on the applicant's behalf. Any payments from the Consolidated Fund under this section may be made without further appropriation than this Act.


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SUITORS' FUND ACT 1951 - SECT 6A

Costs of proceedings not completed by reason of death of judge etc


(1) Where on or after the day on which Her Majesty's assent to the Suitors' Fund (Amendment) Act 1959 is signified:

(a) any civil or criminal proceedings are rendered abortive by the death or protracted illness of the judge or magistrate before whom the proceedings were had,

(a1) any civil or criminal proceedings are rendered abortive for the purposes of this paragraph by section 46A (Appeal against damages may be heard by 2 Judges) of the Supreme Court Act 1970 or section 6AA (Appeal against sentence may be heard by 2 judges) of the Criminal Appeal Act 1912 , because the judges who heard the proceedings were divided in opinion as to the decision determining the proceedings,


(b) an appeal on a question of law against the conviction of a person (in this section referred to as the appellant) convicted on indictment is upheld and a new trial is ordered, or


(c) the hearing of any civil or criminal proceedings is discontinued and a new trial ordered by the presiding judge or magistrate for a reason not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default, in the case of civil proceedings, of all or of any one or more of the parties thereto or their counsel or attorneys, or, in the case of criminal proceedings, of the accused or the accused's counsel or attorney, and the presiding judge or magistrate grants a certificate (which certificate the presiding judge or magistrate is hereby authorised to grant):


(i) in the case of civil proceedings--to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default of all or of any one or more of the parties to the proceedings or their counsel or attorneys, or


(ii) in the case of criminal proceedings--to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury or to the act, neglect or default of the accused or the accused's counsel or attorney, and any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, incurs additional costs (in this section referred to as "additional costs" ) by reason of the new trial that is had as a consequence of the proceedings being so rendered abortive or as a consequence of the order for a new trial, as the case may be, then the Director-General may, upon application made in that behalf, authorise the payment from the Fund to the party or the accused or the appellant, as the case may be, of the costs (in this section referred to as "original costs" ), or such part thereof as the Director-General may determine, incurred by the party or the accused or the appellant, as the case may be, in the proceedings before they were so rendered abortive or the conviction was quashed or the hearing of the proceedings was so discontinued, as the case may be.


(1A) Where, in the opinion of the Director-General:

(a) the Director-General would, but for this subsection, not be entitled to authorise payment of an amount to a person under subsection (1) because that person incurred neither original costs nor additional costs by reason only of the fact that that person was a legally assisted person, and

(b) that person would have incurred original costs and additional costs had that person not been a legally assisted person,

subsection (1) shall apply to and in respect of that person as if that person had not been a legally assisted person and as if that person had incurred such original costs and additional costs as the Director-General determines:


Provided that the Director-General may, in lieu of authorising payment under that subsection of an amount to that person, authorise payment of that amount to such person or persons as in the Director-General's opinion is or are entitled to receive payment thereof.


(1B) If an application has been made under subsection (1) in respect of proceedings rendered abortive, or a new trial ordered, after the commencement of the Suitors' Fund (Amendment) Act 1987 , the amount payable under that subsection to any one person shall, in respect of that application, not exceed:

(a) $10,000, or

(b) such other amount as may be prescribed (at the time when the proceedings were rendered abortive or the new trial was ordered).


(2) No amount shall be paid from the Fund under this section to:

(a) the Crown,

(b) a corporation that has a paid-up share capital of two hundred thousand dollars or more, or

(c) a corporation that does not have such a paid-up share capital but that, within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth, is related to a body corporate that has such a paid-up share capital, unless the proceedings were rendered abortive or the new trial was ordered (as referred to in subsection (1)) before the commencement of the Legal Assistance and Suitors' Fund (Amendment) Act 1970 .


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CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 99

99 COSTS


(1) In this section--

"professional costs" means costs relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court (but not court fees payable to a court).


(2) Costs, other than professional costs, are not to be awarded in apprehended violence order proceedings.


(3) A court may, subject to section 99A, award professional costs in apprehended violence order proceedings to the applicant for the order or decision concerned or the defendant in accordance with this section.


(4) If professional costs are awarded against a person under this section, the costs must be paid by the person to the registrar of the court, for payment to--

(a) the defendant, in the case of costs awarded against an applicant, or

(b) the applicant, in the case of costs awarded against a defendant.


(5) A court may make an order as to professional costs at the end of apprehended violence order proceedings or following the adjournment of the proceedings.


(6) An order as to professional costs may be made following the adjournment of the proceedings only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.


(7) An order as to professional costs made following the adjournment of proceedings may be made whatever the result of the proceedings and may provide for the determination of the amount at the end of the proceedings.


(8) An order as to professional costs may specify the amount of any professional costs payable or may specify that it is to be the amount as agreed or assessed.


(9) The State is to indemnify a police officer, who acts in his or her capacity as a police officer in apprehended violence order proceedings, for any professional costs awarded against the police officer personally.


(10) This section applies to apprehended violence order proceedings, including apprehended violence order proceedings conducted in the absence of one or more of the parties.


CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 99A

Limitations on professional costs being awarded



(1) A court cannot, in apprehended violence order proceedings, award professional costs against an applicant who is a protected person in respect of the order unless satisfied that the application was frivolous or vexatious.


(2) A court cannot, in apprehended domestic violence order proceedings, award professional costs against an applicant who is a police officer unless satisfied that--

(a) the applicant made the application knowing it contained matter that was false or misleading in a material particular, or

(b) the applicant has deviated from the reasonable case management of the proceedings so significantly as to be inexcusable.


(3) The mere fact that a protected person does any one or more of the following in relation to apprehended domestic violence order proceedings does not give rise to a ground to award costs against an applicant who is a police officer and who made the application in good faith--

(a) indicating that he or she will give unfavourable evidence,

(b) indicating that he or she does not want an apprehended domestic violence order or that he or she has no fears,

(c) giving unfavourable evidence or failing to attend to give evidence.


(4) This section has effect despite section 99 or any other provision of this or any other Act or law-


(5) In this section--

"apprehended domestic violence order proceedings" means proceedings under this Act in relation to an apprehended domestic violence order or an application for an apprehended domestic violence order.

"professional costs" has the same meaning as in section 99.



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