Abraham, Romaine --- "Costs column: Costs in criminal law proceedings" [2020] PrecedentAULA 75; (2020) 161 Precedent 46

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COSTS IN CRIMINAL LAW PROCEEDINGS

By Romaine Abraham

There is a historical presumption established at common law that the Crown does not receive or pay costs.^[1] While the prerogative power of the Crown and the immunity it attracts underscores this principle, the general rule can be displaced by statute.^[2]

The statutes enacted in each state and territory vary the way in which the common law rule is applied. Moreover, different statutory provisions apply to summary and indictable proceedings across the various jurisdictions. Importantly, statute has displaced the common law position that the Crown does not receive or pay costs in courts of summary jurisdiction in all Australian jurisdictions.^[3]

This article is not intended to provide an exhaustive list but rather a summary of some of the statutory costs provisions relevant to criminal proceedings in NSW, Queensland and Victoria.

	SUMMARY	INDICTABLE
NSW	Section 213 of the Criminal Procedure Act 1986 confers a power to award costs to the defendant in summary proceedings if the matter is dismissed or withdrawn, or if the proceedings are invalid. Any order made under s213 must specify the amount of professional costs payable.[4] Further, no professional costs are to be ordered in favour of an accused person unless the court is satisfied as to one or more of the following: • the investigation into the alleged offence was conducted in an unreasonable or improper manner; • the proceedings were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner; • the prosecutor unreasonably failed to investigate any relevant matter; or • there are other exceptional circumstances relating to the conduct of the proceedings by the prosecutor that make it just and reasonable to award professional costs.[5]	Costs cannot be ordered in criminal proceedings for indictable offences except where there is specific statutory provision. For example, s2 of the Costs in Criminal Cases Act 1967 applies to criminal proceedings (punishable summarily or on indictment) in all NSW courts. Section 2 permits a certificate to be granted under the statute which specifies that if the prosecution had been in possession of evidence of all relevant facts prior to the commencement of proceedings it would have been unreasonable to commence the proceedings, and that any act or omission of the defendant that contributed or might have contributed to the commencement or continuation of the proceedings was reasonable in the circumstances.[6] Section 4 provides that the person in receipt of the s2 certificate can make an application for payment (out of a consolidated fund) to the Director-General for costs incurred in the related proceedings.
QUEENSLAND	For proceedings conducted in the Magistrates Court, s158(1) of the Justices Act 1886 allows for a magistrate to make an order for the complainant to pay the defendant such costs as seem just and reasonable at the time when a complaint is dismissed or as an alternative to conviction. The entitlement to costs is not automatic and ‘all relevant circumstances’ must be considered in deciding whether to make such an order. Such circumstances can include whether the proceeding was brought and continued in good faith; whether there was a failure to take appropriate steps to investigate a matter within the knowledge of a person responsible for bringing or continuing the proceeding; and whether the investigation into the offence was conducted in an appropriate way.[7]	There is no power to award costs in the hearing of indictable offences except where there is specific statutory modification of the common law rule. It is important to note that s660 of the Criminal Code 1899 allows for costs to be awarded against an offender to an aggrieved person for their costs of prosecution when they are convicted on indictment of any indictable offence in addition to any sentence which is passed upon the offender.
VICTORIA	Section 401 of the Criminal Procedure Act 2009 confers an unfettered discretion on the court to make costs orders in criminal proceedings conducted in the Magistrates’ Court.[8] Following the decision in Latoudis v Casey,[9] the court’s power to order costs was extended to include an accused person who has successfully defended proceedings against them.[10] Generally, in summary proceedings the court will fix the amount of costs payable in accordance with its discretion (although no rule requires this). As such, an award for costs may also be referred to the Victorian Costs Court.	Section 78A(1) of the County Court Act 1958 and s24(1) of the Supreme Court Act 1986 each confer a general power to order costs.[11] However, this power does not confer jurisdiction over costs in trials on indictment, subject to limited statutory provisions in s404 of the Criminal Procedure Act 2009.[12] In accordance with s404, the Supreme Court and the County Court have the power to order costs in trials on indictment, in circumstances where the court is satisfied that an act or omission by or on behalf of a party before the commencement of trial was unreasonable and resulted in the trial being prolonged. Costs can also be ordered if there has been a departure referred to in s233 (introduction of evidence not previously disclosed) or a party has failed to comply with a pre-trial procedure requirement.[13] Section 545 of the Crimes Act 1958 expressly permits a court to order that a person convicted of an indictable offence pay the whole or part of the costs of the criminal prosecution.

CONCLUSION

Although the issue of expense is fundamental to legal practice in its various forms, it is rare to receive an award for costs in the practice of criminal law, regardless of jurisdiction. Legal fees incurred in the defence of criminal prosecution can be prohibitive. It can be a complex and difficult task for a legal practitioner to predict legal costs at the outset of proceedings. Accordingly, it is imperative that criminal lawyers are aware of the circumstances whereby statutory costs provisions are open to their client on unsuccessful prosecution, and the circumstances in which a defendant may receive an order for costs against them.

Romaine Abraham is the Manager of LIV Costs Lawyers, a department of the Law Institute of Victoria.

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^[1] G Dal Pont, Law of Costs, LexisNexis Australia, 2003, [24.2].

^[2] Ibid.

^[3] Ibid, [24.23].

^[4] Criminal Procedure Act 1986 (NSW), s213(5).

^[5] Ibid, s214.

^[6] See s3 of the Costs in Criminal Cases Act 1967 and Beatson v R [2015] NSWCCA 17 (27 February 2015).

^[7] Justices Act 1886 (Qld), s158A.

^[8] Judicial College of Victoria, Victorian Criminal Proceedings Manual (Manual, 22 June 2010), 19.4.1.

^[9] (1990) 170 CLR.

^[10] Judicial College of Victoria, above note 8.

^[11] Ibid, 19.4.2.

^[12] Ibid.

^[13] Of Part 5.5 (pre-trial procedure) or an order made under that Part.