Area of Law – Practice and Procedure

An Article about Costs in criminal cases

Costs in criminal matters
Every one of our client’s is told what the situation is in relation to costs. It is very important that people understand the position.

In a summary criminal matter that you win – costs are at the discretion of the Magistrate. Some of them will accept the full costs, some of them will cut them back. Some of them will take into account whether you did a “no comment” interview or not.

In a matter that is at contested committal and you are discharged of the charges then the Magistrate will order costs in your favour. Often the issue is reserved (so that you can come back if needs be) and a copy of our invoice is given to the Prosecution.

In a trial ie County or Supreme Court – the Courts do not award costs if you are acquitted.There are provisions for ordering costs to be paid where fault shown but we have not heard of them being used.

If a matter is adjourned through no fault of your own then the Court can grant an Appeals Cost Certificate. This is linked to the legal aid scale which is low so you will still have to pay the difference between the daily fee you are being charged and what legal aid would pay for someone to do the matter.

Some of the relevant legislation is outlined below;

What does Magistrates Court say:

131. Costs to be in the discretion of the Court

(1) The costs of, and incidental to, all proceedings in the Court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid.

(2) Sub-section (1) applies unless it is otherwise expressly provided by this or any other Act or by the Rules or the regulations.

(2A) In exercising its discretion under sub-section (1) in a proceeding, the Court may take into account any unreasonable act or omission by, or on behalf of, a party to the proceeding that the Court is satisfied resulted in prolonging the proceeding.

(2B) The Court must not make an order awarding costs against a party in the exercise of its discretion under sub-section (1) on account of any unreasonable act or omission by, or on behalf of, that party that the Court is satisfied resulted in prolonging the proceeding without giving that party a reasonable opportunity to be heard.

(2C) If the Court determines to award costs against an informant who is a member of the police force, the order must be made against the Chief Commissioner of Police.

Power on Appeal
88AA. Costs powers of County Court on appeal

(1) If an appeal under section 83 is struck out or dismissed, the County Court may order the appellant to pay all or a specified portion of the respondent’s costs of the appeal if satisfied that the appeal was brought vexatiously or frivolously or in abuse of process.

(2) Nothing in sub-section (1) limits any discretion as to costs of an appeal conferred on the County Court by any other provision of this Act or the County Court Act 1958.

County Court Act says
78A. Costs

(1) The costs of and incidental to all proceedings are in the discretion of the Court and the Court may determine by whom and to what extent the costs are to be paid.

(2) In the due exercise of the discretion conferred by sub-section (1), in any proceedings before the Court, the Court may order a legal practitioner to pay the costs of the proceedings or a portion of the costs.

For appeal under s 92 (1) of the Magistrates’ Court Act
There is a power to order that the Respondent pay costs in relation to an appeal brought pursuant to s 92 (1) of the Magistrates’ Court Act.

This was in an appeal that was from orders of the trial division dismissing appeal from Magistrates’ Court.

DPP v Hore & Askwith [2005] VSCA 55
CRIMES (CRIMINAL TRIALS) ACT 1999 – SECT 24

Costs

24. Costs

(1) If there has been-

(a) any unreasonable act or omission by, or on behalf of, a party before the accused has been put in the charge of the jury that the court is satisfied resulted in prolonging the trial; or

(b) a departure referred to in section 15(1); or

(c) a failure by a party to comply with a requirement of this Act or an order made under this Act-

the court may make any order that it thinks fit with respect to the costs of and incidental to the trial and, for this purpose, it has full power to determine by whom, to whom and to what extent those costs are to be paid.

(2) An order under sub-section (1) may be made on the application of a party or by the court of its own motion.

(3) An order under sub-section (1) may be made against-

(a) a party, whether the Crown or the accused; or

(b) a party’s legal practitioner or, in the case of a legal practitioner who is employed by another legal practitioner or a firm of legal practitioners, his or her employer.

(4) The court must not make an order awarding costs against a party in the exercise of its discretion under sub-section (1) without giving that party a reasonable opportunity to be heard.

(5) If the accused and the accused’s legal practitioner have complied with the requirements of this Act and any orders made thereunder and the hearing of a criminal proceeding is-

(a) discontinued or adjourned; and

(b) the reason for the discontinuance or the adjournment was not attributable in any way to the act, neglect or fault of an accused or that accused’s legal practitioner-

any indemnity certificate granted by the court under section 16 or 17 of the Appeal Costs Act 1998 may include an indemnity certificate for the accused’s own costs incurred in consequence of a requirement imposed on the accused under this Act.

 

Date: 01/09/2009