Application for costs in criminal cases

The Costs in Criminal Cases Act 1967 allows compensation in certain circumstances for defendants who have been acquitted or discharged.

Is there a form I need to use?

The form to use can be found here:

• Individuals (DOC, 33.0 KB) Statutory declaration
• Solicitors on behalf of a client (DOC, 33.0 KB) Statutory declaration
• Certificate for costs on discharge or acquittal
• Costs in Criminal Cases Act 1967

If you wish to make an application under the Costs in Criminal Cases Act 1967, please read the attached fact sheet (PDF, 214.1 KB).

Please note

When providing documentation to the Department of Communities and Justice (Legal), it will be necessary to provide a copy of the costs agreement made out to the client and invoices, plus any other evidence in support of disbursements.

All applications and supporting material should be sent to:

Email: Enquiries-DCJLegal@dcj.nsw.gov.au

Post: Legal Services

Department of Communities and Justice

Locked Bag 5000

Parramatta NSW 2124

Overview

The Costs in Criminal Cases Act 1967 is a means of compensating defendants who have been acquitted or discharged, but only in certain circumstances. At the time of the Act's introduction it was considered an important reform because it gave a successful defendant a 'right' to costs, subject to certain criteria being met, which they did not have under the Justices Act 1902.

The grant of a certificate under the Act entitles the grantee to apply to the Secretary of the Department of Communities and Justice of the costs incurred in the proceedings to which the certificate relates. The grant of a certificate under the Act is NOT an order for costs.

The Attorney General's rate

Invoices submitted for payment under the Act will be moderated in accordance with the Attorney General's rates.

Further information in relation to the Attorney's rates are available at the Attorney General's rates webpage.

Court procedure

A court may grant a certificate under section 2 of the Costs in Criminal Cases Act 1967 to a successful defendant:

1. who has been acquitted or discharged at any time during a trial; or
2. if the defendant successfully appeals against a conviction (section 2(b)).

Most applications fall within category 1) listed above.

Section 3 of the Costs in Criminal Cases Act 1967 specifies that a certificate granted to a successful defendant by a Judge or Magistrate SHALL state that:

1. proceedings would not have been instituted if the prosecution had been in possession of all the facts; AND
2. any act or omission of the defendant that may have contributed to the institution of proceedings was reasonable (as an example, it has been held that a successful defendant may be granted a certificate where they have been acquitted on the basis of an alibi defence).

If a certificate was granted by a Magistrate prior to 3 August 1998, the certificate MUST state an amount the Magistrate would have awarded if an order for costs had been made against the prosecution. Otherwise the certificate should NOT state an amount of costs.

What costs can be paid?

Pursuant to section 4 of the Costs in Criminal Cases Act 1967, upon production of a certificate to the Secretary, a person may make application for payment from the Consolidated Fund for the costs incurred by that person in the proceedings to which the certificate relates. The costs payable under the certificate are not indemnity costs and are more of the nature of party/party costs. NOTE: The granting of a certificate under the Act is NOT an order for costs.

Procedure

The Secretary's responsibilities are set out in section 4 of the Costs in Criminal Cases Act 1967. Briefly, they are to:

1. make a determination that, in the circumstances of the case, the making of a payment is justified.
2. make a determination as to the reasonableness of the costs claimed where no costs have been specified in the certificate.
3. make a determination that the defendant has no other entitlement to recover those costs from any other legal avenue (the Department requires the applicant to complete a statutory declaration to this effect: see Application form).

In order for an application to be considered, a copy of the certificate, signed by the Judge or Magistrate and sealed by the Court, must be provided. A draft form of a certificate is set out above. A Statutory Declaration of the form set out at Application form must also be provided. Applicants must also provide details of the costs claimed.

It is important to ensure that a detailed bill of costs is provided. Also, the applicant should provide copies of Counsel's memorandum of fees and evidence in support of disbursements claimed.

If the applicant was in receipt of Legal Aid, all details of the grant of Legal Aid, including amounts paid by the Commission and any contributions imposed on the applicant, must also be provided.