If you are found not guilty in a summary hearing (i.e. a hearing in the Local Court) there are two types of costs applications that can be made:
- Costs under the Criminal Procedure Act
- Costs under the Costs in Criminal Cases Act
Costs under the Criminal Procedure Act (‘CPA’)
To be granted costs through the Criminal Procedure Act following a dismissal of charges in a summary hearing, you must satisfy one or more of the following criteria:
- 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 prosecutor in an improper manner,
- 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,
- 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.
The above comes from section 214 of the Criminal Procedure Act 1986 (NSW).
In the event that you intend to make a costs application, it is imperative that during the course of a hearing, the Court hears evidence, not only disprove the charges in order to have them dismissed, but to ensure that the Court hears evidence that is capable of substantiating one of the criteria above.
Whilst you may feel aggrieved that you were charged with an offence you did not commit, the Court may not grant you costs simply because of that sense if injustice. It is a purely legal question with a high threshold. For example, whilst a case may be weak that will usually be insufficient. The case of Canceri v Taylor (1994) 123 ALR 667 is of primary importance when assessing whether a case was so weak (or lacking reasonable and probable cause) that costs ought to be ordered.
Costs in Criminal Cases Act (‘CCCA’)
Arguably, there is a lower watermark for an application under CCCA than for the CPA.
The test under the CCA is:
- 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.
This has a lower watermark as ‘evidence of all the relevant facts’ includes any evidence that comes out during the course of a hearing. Therefore, whilst a case may appear strong ‘on paper’ if it becomes apparent during the course of the hearing that the said case diminishes in strength to the point where it would not have been reasonable to institute a prosecution, this is sufficient for an application to be granted under this provision. In short, it allows the court to retrospectively question, with the benefit of having heard the entirety of the evidence in Court, whether taking into account all of the evidence as it played out, it would have been reasonable to commence a prosecution – it is this proposition that was supported in the case of Allerton v DPP (1991) 24 NSWLR 550.
What is obvious from the above two summaries is that a large amount of preparation is required if you anticipate on winning and making an application for costs. In those circumstances, it is almost imperative that a defence solicitor is retained with a capability to understand how to elicit the evidence necessary to substantiate a costs application following a dismissal of the charges.
If you need advice from a criminal defence lawyer, contact one of our criminal law specialists immediately at either our Sydney or our Parramatta offices. We have particular experience in all types of criminal proceedings. Call 1800 NOT GUILTY or fill in our contact form and arrange a free conference with a solicitor today.