Reclaiming legal costs of defence

The ability of people who have successfully defended charges brought against them by police in the Magistrates’ Court to claim their legal costs from the police is now much greater. This change came about in the High Court decision in the case of Latoudis v Casey [1991] 97 ALR 45.

The power to award costs in criminal matters in the Magistrates’ Court is contained in sections 400–403 of the CP Act. However, successful defendants will probably still be unable to claim costs if they did not use the opportunity to explain their version of events before the charge was laid. Because of this, suspects intending to exercise the right to say nothing when interviewed should at least take into account the fact that this means it is unlikely that they will be able to claim costs if they successfully defend all charges brought against them.

Generally, successful defendants in the County and Supreme Courts are unable to claim their costs. However, a costs order can be made against a party in those courts if the court is satisfied they were responsible for unreasonably prolonging the trial or the party failed to comply with pre-trial directions (s 404 CP Act).

If a legal practitioner in a criminal proceeding is found to have incurred costs improperly, or without reasonable cause, or caused waste by undue delay or negligence, then a court may order the legal practitioner to pay those costs. This can include making a repayment to their client (s 410 CP Act).