Lawyers often do not seek to recover costs for their clients after a criminal case has been finalised. It is seen as a rare occurrence and extremely difficult. Why so?

COSTS IN GENERAL

Costs are a normal part of the legal services industry, no matter the area of law; clients pay lawyers for their services, and if payment is not received, the work is not done, simple.

In the sphere of criminal law, however, other factors pose complications in this model; like, does the client need legal aid? If they do not qualify, is the lawyer willing to work on a partly pro-bono basis? The high stakes involved in criminal law is that we are literally dealing with a person’s liberty. Most people do not wish to have proceedings made against them, unlike in civil law where individuals can bring actions by their own accord to have their rights enforced. In civil matters, if a person wins the case, they can even recover their legal fees from the other side. Yet, in criminal cases, if a person goes through an entire trial, which is a traumatising ordeal for most, and is found not guilty, they may not even be able to recover the costs of their legal representation. Usually, costs are only recoverable if a person’s defence team can prove that the prosecution did not investigate the allegations properly, or the prosecution was malicious, or that there were no lawful grounds to charge the person initially, amongst other such similar scenarios.

THE LEGISLATION

Section 213 of the Criminal Procedure Act 1986 (NSW) (CPA) outlines when professional costs may be awarded to accused person:

(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.

(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because:

(a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or

(b) the matter is withdrawn or the proceedings are for any reason invalid.

(5) The order must specify the amount of professional costs payable.

Section 214 of the CPA sets the limit on award of professional costs to an accused person against a prosecutor acting in a public capacity:

(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c) 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,

(d) 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.

(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.

An alternative piece of legislation, or one to be used in conjunction with the above, is section 2 of the Costs in Criminal Cases Act 1967 (NSW) (CCCA).

It states that a certificate may be granted:

(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b) where, on appeal, the conviction of the defendant is quashed and:

(i) the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii) the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3) In this section, 
"trial", in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

EXAMPLES OF WHEN COSTS SHOULD BE AWARDED

The Court will be inclined to find that the investigation of an offence was conducted in an unreasonable or improper manner, if certain steps were not taken by police.

Firstly, the police have a duty to disclose all material evidence to an accused person. If this is not done, then it could lead to a miscarriage of justice because, how can a person defend themselves if they are not properly aware of what they are defending themselves from?

Secondly, if the police choose not to call a witness when they should reasonably have adduced evidence from them, this could be a failure on their part to investigate relevant matters.

AFFECT IN PRACTICE

National Criminal Lawyers® are one of the few firms that will always see the recovery of costs as a possible path for their clients. Take this case study, for example, the police eventually withdrew the charge the firm’s client was facing. They did so because they knew it was highly likely the matter would be dismissed, resulting in an application for costs from the defence lawyers.

In this sense, the option to recovery costs works well. It can work as a bargaining tool in the negotiation stages of a criminal matter.

However, the limited scope of the legislation prevents an ordinary defendant from recovering costs for legal representation in circumstances where there was reasonable cause for an investigation and trial but not enough evidence to prove beyond a reasonable doubt that the defendant committed the offence(s). Whether this is just or reasonable is another topic of discussion entirely. One can see there are justifications for this like the public need for investigations of crimes to occur and the rights of victims. On the other hand, a person may be not guilty legally, find themselves in an unfortunate situation, must pay their legal fees and cannot recover these costs for a crime they did not commit.

To learn more about the experts at cost recovery, read up about National Criminal Lawyers®.