Costs on Indictment

Multiple cases below have helpfully sought to summarise and set out the effect of the various authorities. Of those, the very detailed summary in Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 is probably the most helpful.

The award of costs in the District Court is governed by s2 of the Costs in Criminal Case Act 1967, which reads as follows:

(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.

The test is contained at section 3:

(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(a) 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

(b) 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. 

Multiple cases below have helpfully sought to summarise and set out the effect of the various authorities. Of those, the very detailed summary in Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 is probably the most helpful.

Allerton

Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550

“As we read s 3(1)(a) the task of the court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, as stated by Sugerman P in R v Williams. But that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker. The decision-maker must then ask whether, if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings.”