Defence Legal Costs: How and When You Can Apply in Criminal and Intervention Order Proceedings

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Brittany LlewellynThe article Defence Legal Costs: How and When You Can Apply in Criminal and Intervention Order Proceedings is written by Brittany Llewellyn, Associate, Doogue + George Defence Lawyers.

Brittany holds a Juris Doctor and Bachelor of Arts with Honours from the University of Melbourne. She is notably experienced in criminal cases related to sexual crimes, drug courts, and therapeutic jurisprudence.

Before becoming a part of Doogue + George, Brittany served as a Judge's Associate to his Honour Judge Higham and worked exclusively in the County Court's criminal division. She has also worked as a Research Assistant, volunteered extensively for various legal centres, and completed internships domestically and abroad.


Legal CostsCriminal proceedings are concerned with much more than money. Did the accused person commit the crime? Are they guilty or not guilty? For a person facing criminal charges, it is the prospect of a finding of guilt and a criminal record, risk of prison and loss of liberty, and the possible loss of reputation and standing in the community that are the major concerns.

However, in privately funded cases, the cost of legal proceedings is also a significant consideration because legal costs are often an unexpected and unanticipated financial expense.

Fortunately, in Victoria, it is possible for an accused person facing criminal charges and a respondent in intervention order proceedings to successfully reclaim legal costs in some circumstances.

In criminal matters, costs are awarded to an accused person (or “defendant”) not to punish another party to the proceeding, but rather to indemnify a defendant from financial expense incurred in running their defence.1 In these cases, an award of costs do not go further than compensating for what a party has been required to pay for the preparation of the matter (as opposed to civil proceedings and some awards of damages) and sometimes do not extend to cover all expenditure.

Costs in Summary Proceedings in the Magistrates’ Court

In the Magistrates’ Court, there is a wide discretion to award costs in criminal proceedings. This includes the magistrate exercising discretion as to whom and to what extent costs can be awarded.2 Costs may be awarded throughout the course of proceedings and should be applied for as soon as possible, particularly where another party has acted unreasonably causing delay and expense.3

It is also important to note that the Court’s discretion extends to awarding costs against any party to the proceeding, including against an accused person.4 Some prosecuting agencies that regularly engage private lawyers to prosecute on their behalf will seek to reclaim costs as a matter of course if they are successful. This includes both upon a guilty verdict at a contested hearing or if the defendant pleads guilty. Prosecutions run by the local council are an example of prosecutions that will regularly seek to reclaim costs from the accused. On the other hand, if a case is prosecuted by police prosecutors, costs against an accused person are not normally sought and orders not normally made.

Legal Costs Upon Withdrawal of Charges

An accused person will have a strong case to obtain costs where all charges are withdrawn or struck out. Although, an effective strategy in some cases is to negotiate a withdrawal of criminal charges on a “no costs” basis, meaning that the parties bear their own costs. Sometimes, such an offer is extended by police prosecutions, and in others as part of an offer made by defence lawyers, with reference to particular weaknesses in the evidence or reasoning about why a prosecution is unlikely to succeed. If costs are put in issue, there should always be a bona fide basis for obtaining costs.

Legal Costs Following a Finding of Not Guilty

If an accused person is found not guilty at a contested hearing, meaning the criminal charges have been successfully defended, an application for costs may be made and will usually be awarded.5 Our experience in representing clients who are found not guilty following a contested hearing is that costs are routinely awarded against the Chief Commissioner of Victoria Police.

However, the court will take into account anything that the successful party has done to prolong the proceeding or cause delay. If costs are granted, they will be payable by the Chief Commissioner of Police (rather than the specific police informant with carriage of the matter).

Case Study – Negotiating Withdrawal of Criminal Charges Without Legal Costs

Earlier this week, Doogue + George Defence Lawyers successfully negotiated a withdrawal of charges with parties agreeing to bear their own costs in circumstances where a client was facing two Assault charges and a charge of Threat to Inflict Serious Injury. All charges were firmly denied. Assurances were given by police prosecutors that the case would be reviewed between court dates due to issues highlighted by our office with the strength of the evidence on file. However, this was not done requiring the matter to be adjourned to a further court date. We attended court with printed correspondence from police prosecutors and a procedural chronology to tender in support of a costs application (detailing the agreement for police to perform tasks and failure to do so, despite follow up from our office). At court, the police offered withdrawal of all charges on the proviso that the client would waive costs. This was ultimately accepted and was a favourable outcome in the circumstances.

Case Strategy and Costs

It is important to consider costs in how a defence is conceived and run from the commencement of the case. It is also important to request disclosure early and follow up in writing as required to ensure that the defence is in the best possible position to obtain costs should disclosure not be provided.

Of particular note, costs will not generally be awarded in circumstances where the defendant has not disclosed their defence, meaning that the prosecution has proceeded without knowing on what basis the charges would be defended.6 For example, this might occur if defence leads with evidence of self-defence or consent following an initial no comment interview with police. However, case management procedures in the Magistrates’ Court ordinarily ensure that parties are properly on notice about issues in contested matters prior to hearing dates.

This does not mean that it is necessarily in an accused person’s interest to disclose their defence at an early stage of proceedings. The criminal justice system is in many ways an imbalanced system involving a powerful state body with the full resources available to the state pitted against the individual facing charges. One of the most valuable procedural factors that weighs in favour of an accused person is the element of surprise. While the prosecution is required to disclose the prosecution case, an accused person is not ordinarily required to disclose their defence to the charges.7

Defence lawyers are skilled in identifying and exploiting issues, and deciding whether to alert prosecution in advance is an important forensic decision that will vary in any given case. Sometimes, disclosing a defence case theory or issues with the prosecution evidence can lead to the prosecution withdrawing the charges. Other times, providing information to the Prosecution about the issues with their case can cause prosecutors to change the way their case is run, or to gather further materials to successfully prosecute. This is one important reason to obtain legal advice as soon as possible in the process of criminal charges being laid.

Costs at the Magistrates’ Court Stage of an Indictable Matter

County and Supreme Court cases go through an initial “committal” process whereby they are listed for a number of preliminary hearings before a magistrate. At this stage of the proceedings, the wide discretionary power of the Magistrates’ Court may be enlivened to award costs. This might be applicable, for example, if the prosecution has not done something that they should have done by a particular date, resulting in the need for an adjournment of proceedings and the inability for the case to progress when it otherwise could have done so.8 It can also arise in circumstances where the proceedings finalise at committal due to insufficient evidence.

Case Study – Adjournments and Legal Costs

Doogue + George defence lawyers recently applied for an award of costs in circumstances where a matter was at the Committal Mention stage of proceedings. In this case, the parties had indicated a joint position to the Court that the case was ready to proceed to a contested committal involving pre-trial examination of witnesses. However, at the Committal Mention, and without prior notice to defence, the prosecution indicated to the court that the matter was not ready to proceed due to the prosecution potentially wishing to make an application for “compulsory examination” of witnesses. Compulsory examination is supposed to occur prior to a Contested Committal. In the end, the foreshadowed application did not proceed and forced an unnecessary court date in a matter already involving significant delay. The defence lawyers were successful in applying for a costs order to cover our client’s costs “thrown away” due to the unnecessary adjournment of the initial Committal Mention date, with the order being made against the Chief Commissioner of Victoria Police.

Case Study – “No Case” Submissions and Legal Costs

In some cases, if a successful “no case submission” is made (usually at the end of a Contested Committal) whereby the charges are struck out by the Court at the Magistrates’ Court stage of indictable proceedings, an application of costs may be made. Our firm was involved in a historical sex offence case where a successful “no case” submission was made and the charges were struck out by the Magistrate, with costs order also being made. In this case, it was clear from the evidence given in the committal hearing that had the allegations been properly investigated by police, the charges should never have proceeded at all.

Costs in the County and Supreme Courts

In the higher courts, there is lesser discretion to award costs,9 and costs are not widely awarded. This is a harsh reality for accused persons in circumstances where higher court proceedings invariably require great expenditure to be adequately defended. Nevertheless, there remains a discretionary power for the Court to award costs in more limited circumstances including in circumstances where an ‘act or omission… before the commencement of trial was unreasonable and resulted in prolonging the trial’.10

The Appeal Costs Fund

In some circumstances, it is possible to obtain costs from the Appeal Costs Fund.

This can include certain circumstances involving an appeal,11and when a proceeding is discontinued or adjourned at no fault of an accused person or their legal practitioner.12 This might happen, for example, if the parties have attended court ready to proceed and there is no judicial officer available to hear the proceeding.

This process involves an accused person’s lawyer making an oral application in court for an indemnity certificate which, if granted, can ground an application to the Appeal Costs Board.13

The government may set the amount payable by the Appeal Costs Fund at a particular maximum.14 This means that the Fund may not cover in full the costs that might otherwise be sought.

An application to the Appeal Costs Fund should be lodged within 12 months of the final determination of the matter to which the indemnity certificate relates.15

Case Study – Indemnity Certificate

Doogue + George defence lawyers was recently involved in a County Court proceeding in which an indemnity certificate was granted. The circumstances in that matter involve an upcoming criminal trial and a hearing concerning a subpoena release in which the prosecution and police appeared to have miscommunicated regarding who was to represent the police objection to providing the defence with the subpoenaed materials (the police’s legal team or the Office of Public Prosecutions?). This caused the proceeding to run for two days, rather than one. An order was ultimately granted that the materials be released to defence and an Appeal Costs Fund Certificate to cover the expense of the day that was adjourned due to confusion regarding the police position.

Costs in Legally Aided Matters

When costs are awarded to the defendant in legally aided matters, Victoria Legal Aid is reimbursed the costs of defending the case. In cases where a defendant is legally aided and prosecuted by the State, costs awards pass government money from one government agency to another. Nevertheless, it is a condition of any grant of legal aid that costs are sought where there is a valid basis to reclaim them.16 Defence practitioners will therefore make such applications where appropriate.

Costs in Intervention Order Applications

Intervention orders, while not criminal matters, are regularly dealt with by criminal lawyers, sometimes alongside related criminal proceedings.

Intervention orders are a “no costs” jurisdiction, meaning that parties are required to bear their own costs.17 However, there are exceptions to that rule. In particular, costs may be awarded in ‘exceptional circumstances’.18 In obtaining costs, the Respondent (the person against whom the order is sought) would seek to establish that there are factors making the application out of the ordinary, unusual or special.19 Costs may also be awarded if the application was ‘frivolous, vexatious or made in bad faith’.20 A proceeding will be vexatious if it commenced or was pursued without reasonable grounds, or in ‘a way so as to harass, annoy, cause delay or detriment, or achieve another wrongful purpose’.21

What Happens When Costs are Awarded?

A Court may award costs at a set amount. They may also order costs at an amount to be agreed between the parties. If the parties cannot agree to the quantum, the matter would often return to court to settle the dispute. Courts can also order for costs to be assessed or reviewed by the Costs Court.22

Where costs are awarded, costs will still fall to the respondent until they are paid by the other party to the proceeding. This means that they remain liable to cover the expenses of their legal representation. However, in circumstances where costs have been awarded to them, they will be reimbursed once the other party has made payment.

It is an unfortunate reality that costs can take some time to be paid. The Court will often order a “stay”, meaning that the other party has a set amount of time to pay costs. In our experience, three months is regularly given as a time period for the party paying costs to be permitted to make payment, and is the period generally sought as a standard stay by the police in criminal matters.

Conclusion

Costs are a consideration for any well-prepared defence. The overhanging issue of costs can be harnessed to receive a favourable outcome regarding the substantive allegations. Costs orders can also compensate an accused person for significant expense. For these reasons, it is important that a defence is run with costs as a factor for consideration by an experienced defence lawyer at all times. It is the case that even in minor matters, an accused person should seek legal advice to ensure they are fully informed as to their rights to seek costs so that appropriate and, ultimately, favourable costs applications can be made.

If you have any questions about your right to seek legal costs, contact our office for further advice.
 
 


[1] Latoudis v Casey (1990) 170 CLR 534.
[2] Criminal Procedure Act 2009 (Vic), s 401; Latoudis v Casey (1990) 170 CLR 534; there are some caveats to the Magistrates’ discretion, see a recent example CDC Clinics Pty Ltd v Coleman [2022] VSC 464.
[3] See Criminal Procedure Act 2009 (Vic), s 401(2).
[4] Criminal Procedure Act 2009 (Vic), s 401(1).
[5] Latoudis v Casey (1990) 170 CLR 534, 542 (Mason CJ); 565 (Toohey J); 566 (McHugh J).
[6] See Latoudis v Casey (1990) 170 CLR 534, 542 (Mason CJ).
[7] There are some caveats to this. If a defendant is raising an alibi or leading expert evidence, there are procedural rules requiring disclosure to the Prosecution.
[8] See Criminal Procedure Act 2009 (Vic), s 401.
[9] Criminal Procedure Act 2009 (Vic), s 404.
[10] Criminal Procedure Act 2009 (Vic), s 404.
[11] See Appeal Costs Act 1998 (Vic), ss 14–15C.
[12] Appeal Costs Act 1998 (Vic), ss 16 and 17; Criminal Procedure Act 2009 (Vic) s 404(3).
[13] See < https://www.justice.vic.gov.au/justice-system/laws-and-regulation/how-to-apply-to-the-appeal-costs-board >.
[14] See Appeal Costs Act 1998 (Vic), s 17(5).
[15] See limitation period in Appeal Costs Act 1998 (Vic), ss 35D and 35E(1), but see also the caveat contained in ss 35E(2) and (3).
[16] See < https://www.legalaid.vic.gov.au/seeking-and-recovering-costs-legal-aid-matters >.
[17] Family Violence Protection Act 2008 (Vic), s 134(1); Personal Safety Intervention Orders Act 2010 (Vic), s 111(1).
[18] Family Violence Protection Act 2008 (Vic), s 134(3)(a); Personal Safety Intervention Orders Act 2010 (Vic), s 111(3)(a).
[19] Owens v Stephens, Unreported, VSC, 3 May 1991.
[20] Family Violence Protection Act 2008 (Vic), s 134(3)(b); Personal Safety Intervention Orders Act 2010 (Vic), s 111(3)(b).
[21] Vexatious Proceedings Act 2014 (Vic), s 3.
[22] See, e.g., < https://www.supremecourt.vic.gov.au/areas/costs-court >.

 
 
Date Published: 22 June 2023
 
 

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