Costs in criminal matters

[56-000] Introduction

Costs may be awarded to successful parties in criminal proceedings in the Local Court pursuant to four statutes: Criminal Procedure Act 1986, Costs in Criminal Cases Act 1967, Crimes Act 1900 and the Suitors’ Fund Act 1951. As a matter of policy, the Police Service, and Commonwealth and State Directors of Public Prosecution do not ordinarily apply for professional costs against unsuccessful defendants, although witness expenses and court costs may be sought. Private informants, and bodies such as councils, the Royal Society for the Prevention of Cruelty to Animals NSW and the Roads and Maritime Services, however, will usually seek professional costs against unsuccessful defendants.

For non-criminal matters (proceedings by way of application notice), the power to award costs is found in s 69 Local Court Act 2007.

[56-020] Circumstances in which costs may be ordered

1.: At the end of a committal, costs to the defendant, where the defendant is discharged or the matter is withdrawn, or where the defendant is committed for trial/sentence for an indictable matter which is not the same as the offence the subject of the court attendance notice: s 116 Criminal Procedure Act.
2.: At the end of summary proceedings, costs to the defendant if the matter is dismissed, withdrawn or the proceedings are invalid: s 213 Criminal Procedure Act.
3.: At the end of summary proceedings, costs to the prosecutor if the defendant is convicted or an order is made against the defendant: s 215 Criminal Procedure Act.
4.: If the matter (summary or committal) is adjourned, costs against either defendant or prosecutor if satisfied other party has incurred additional costs because of unreasonable conduct/delay of the party against whom the order is made: s 118 (committal), s 216 (summary) Criminal Procedure Act.

Amount of costs

The amount of costs must be just and reasonable.

Onus

The onus is on the applicant on the balance of probabilities: Dong v Hughes [2005] NSWSC 84. The applicant should specify the grounds on which the application is made.

Procedural fairness

Before making an order adverse to a party’s interests, the court must give them an opportunity to be heard. This includes in relation to a party seeking costs in circumstances where the other party accepts (by their silence or otherwise) a costs order is appropriate: Safework NSW v Williams Timber Pty Ltd [2021] NSWCCA 233 at [29]–[32].

Limit on circumstances when costs may be awarded against a public informant

Restrictions are placed on awarding professional costs (as defined in Criminal Procedure Act) in favour of a defendant in committal proceedings (s 117 Criminal Procedure Act) or summary proceedings (s 214 Criminal Procedure Act). The test is essentially the same and picks up the test from the Justices Act, requiring the court to be satisfied it is just and reasonable on one of the following grounds to award costs:

that the investigation into the alleged offence was conducted in an unreasonable or improper manner
that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecution in an improper manner
that the prosecution 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 defendant might not be guilty or that, for any other reason, the proceedings should not have been brought,
that other exceptional circumstances relating to the conduct of the proceedings by the prosecution justify an award of costs.

The limitation applies to police and public officers including council employees acting in an official capacity, and RSPCA officers.

[56-040] Criminal Procedure Act 1986 grounds

That the investigation into the alleged offence was conducted in an unreasonable or improper manner.

Proceedings initiated without reasonable cause

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.

Unreasonable failure to investigate relevant exculpatory matters

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.

Other exceptional circumstances relating to the conduct of the proceedings

The defendant must establish something about the conduct of the proceedings being an exceptional circumstance other than some matter referred to in (b) or (c). The mere fact proceedings are resolved in the defendants favour is not enough: Fosse v DPP [1999] NSWSC 367.

Exceptional circumstances mean what it says as a matter of ordinary English. Mere proffering of no evidence is not enough, nor is mere reliance on exculpatory statements of the defendant. Neither is remarkable in itself or in combination: Dong v Hughes [2005] NSWSC 84.

“Just and reasonable”

The court must be satisfied, on one of the grounds above, that it is “just and reasonable” to award costs. The meaning of “just and reasonable” was considered in Caltex Refining Co Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 552:

the requirement that such an order must be both just and reasonable entails both that there will be a fair hearing on the merits of the application for the order, and that the terms of the order finally made will be in themselves reasonable
the judge must specify the quantum of the costs order,
the judge, in so reaching a final decision, must act, of course, judicially. This must entail, at the very least, a clear, and sufficiently exposed, process of reasoning to a quantum of costs. A result which is, in truth, nothing more than an intuitive stab in the dark is neither just nor reasonable.

The defendant’s conduct in relation to the investigation or conduct of proceedings may be a factor to be considered when deciding whether it is “just and reasonable” to exercise the discretion. In Latoudis v Casey (1990) 170 CLR 534, Mason CJ said at 544:

However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant’s costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor.

I agree with Toohey J that, if a defendant has been given an opportunity of explaining his or her version of events before a charge is laid and declines to take up that opportunity, it may be just and reasonable to refuse costs. Likewise, if a defendant conducts his or her defence in such a way as to prolong the proceedings unreasonably, it would be just and reasonable to make an award for a proportion of the defendant’s costs.

[56-060] Costs in Criminal Cases Act 1967

Magistrates may grant certificates under s 2 Costs in Criminal Cases Act in relation to both committal proceedings and summary hearings (whether a hearing has been held on the merits or not) where a defendant is successful.

It is not available following a discharge of the defendant at committal, there being no “trial” within the meaning of the Act: DPP v Howard (2005) 64 NSWLR 139.

The test

To grant a certificate under s 2, the magistrate must be satisfied that:

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
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.

In R v McFarlane (unrep, 12/8/94, NSWSC) per Blanch J described the test as:

a hypothetical exercise in the sense that the question is whether it would have been reasonable to prosecute at the time of [the] institution [of the proceedings] if the hypothetical prosecutor had possession of evidence of all the relevant facts including those established even after the trial and on [the] application: see Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550.

[56-080] Crimes (Domestic and Personal Violence) Act 2007

Costs in apprehended violence order proceedings — applicants and defendants

Pursuant to s 99(3), the court may, subject to s 99A, award professional costs to the applicant or defendant in apprehended violence order (AVO) proceedings. The amount of costs is to be just and reasonable: s 213(2) Criminal Procedure Act.

An order for professional costs against an unsuccessful applicant who is a protected person in AVO proceedings may only be made if satisfied the application was made frivolously or vexatiously: s 99A(1).

Police applicants — apprehended domestic violence orders

Professional costs against a police officer who is an applicant in apprehended domestic violence order proceedings cannot be awarded unless satisfied the officer made the application knowing it contained a matter that was false or misleading in a material particular, or deviated from the reasonable case management of the proceedings so significantly as to be inexcusable: s 99A(2).

The mere fact a protected person in apprehended domestic violence order proceedings:

indicates they will give unfavourable evidence
indicates that they do not want an AVO or have no fears, or
gives unfavourable evidence or fails to attend to give evidence,

does not give rise to a ground to award costs against an applicant police officer in such proceedings: s 99A(3).

[56-100] Suitors’ Fund Act 1951

The Suitors’ Fund Act has very little application in the Local Court in criminal matters (although more so in civil law proceedings). It covers cases when criminal proceedings are halted as a result of the death or prolonged illness of a magistrate that abort the proceedings. Application is made by the parties to the Director General of the Attorney General’s Department. For the purposes of the application, the magistrate must issue a certificate under s 6A(1)(c)(ii) of the Act.

[56-120] Miscellaneous matters

Time for making of a costs application

An application for costs must be brought (if at all) at the time of the discharge of the defendant (at the conclusion of committal proceedings) or at the time of the dismissal of the information (in a summary hearing: see Fosse v Director of Public Prosecutions (NSW) (1989) 16 NSWLR 540). After that time, the magistrate will be functus officio and have no power to hear a costs application.

Note:: There is no general power to order costs as a result of delay due to illness of the magistrate, legal representative or witness.

Quantum of costs

The costs ordered must be “reasonable” in all the circumstances. What will be reasonable will be determined from a consideration of all the relevant factors, bearing in mind the purpose of awarding costs. In Latoudis v Casey, Mason CJ said at 543:

If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not to be awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.

It is an error to use the refusal to make a costs order to ameliorate the penalty. Any such amelioration should be by way of mitigation of a fine, not reducing the amount awarded as costs: Safework NSW v Williams Timber Pty Ltd, above, at [26], [41], [45].

Once the magistrate has decided to award costs, it is frequently useful to invite the parties to discuss quantum and to seek to reach an agreement. If unresolved, a hearing on quantum will be required. If that cannot be done on the day of the hearing, it is advisable to set a timetable requiring that evidence be filed and exchanged in affidavit form.

There is no applicable scale of costs.

It is advisable to request that an account of costs be provided to the court. A copy of the costs agreement between the solicitor and client can also be requested to determine what is “just and reasonable”.

The onus is on the party seeking costs to establish an entitlement to costs and that the claim is just and reasonable.

Reasons

While costs are in the magistrate’s discretion, reasons must be provided for orders made in relation to costs: Ramskogler v DPP (NSW) (1995) 82 A Crim R 128.