Application for costs in criminal cases

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.

If a Court has awarded you a cost certificate under the Act, you can apply to the Secretary of the Department of Communities and Justice for reimbursement 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.

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).

The certificate should NOT state an amount of costs.

What costs can be paid?

Once a person has been issued a certificate, they may apply to the Secretary for payment from the Consolidated Fund for the costs incurred by that person in the proceedings to which the certificate relates. 

Procedure

The Secretary will consider the application in accordance with section 4 of the Costs in Criminal Cases Act 1967. The Secretary will:

1. Determine whether, in the circumstances of the case, the making of a payment is justified, and
2. If so, determine the maximum amount for payment, involving:
   1. Determining the amount of costs which were reasonably incurred, (payment is not permitted for costs that exceed this amount).
   2. Determining whether the defendant has recovered or could recover those costs through an alternate right, entitlement or legal remedy and, if so, reducing the amount for payment according.
3. Determine the appropriate amount for payment, including moderating various costs where deemed appropriate.

Moderation in accordance with the Attorney General's rate

Costs considered to be reasonably incurred will be moderated in accordance with relevant Attorney General's rates for legal representation, unless the Secretary considers that exceptional circumstances apply.

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

Other costs may also be moderated in accordance with departmental policy and prescribed rates. See the Costs in Criminal Cases factsheet for further information. 

How to make an application?

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

You will need to provide a copy of a valid cost certificate signed by the relevant Judge or Magistrate and sealed by the court. A draft form of a certificate can be found here: Certificate for costs on discharge or acquittal

We are unable to provide assistance with obtaining a certificate from the court.

You or your legal representatives will also need to provide a statutory declaration to support the cost certificate.

The form to use can be found here:

• Individuals (DOC, 33.0 KB) (DOC, 33.0 KB) Statutory declaration
• Solicitors on behalf of a client (DOC, 33.0 KB) (DOC, 33.0 KB) Statutory declaration

You will also need to provide details of the costs claimed, including a copy of:

• relevant invoices for solicitor fees, counsel fees and any disbursements claimed,
• costs agreements with instructed solicitor and counsel.

An application involving proceedings entirely funded by Legal Aid NSW will need to be made by Legal Aid NSW. If the proceedings were part funded, please provide details relating to the period of the grant.

All applications and supporting material should be sent via email to: Enquiries-DCJLegal@dcj.nsw.gov.au

Or, alternatively, via post to:

Legal Services

Department of Communities and Justice

Locked Bag 5000

Parramatta NSW 2124