Are defendants required to pay costs if found guilty of a criminal offence?

by Findlaw Australia

Depending on the court and the offence, costs can vary in relation to criminal matters within Australia. So for summary cases, costs can be made for or against the prosecution in all States and Territories. In relation to a committal procedure, if a defendant is discharged during committal, then it is legislation that will determine whether they are entitled to costs, such as the case in Victoria via s 401 of the Criminal Procedure Act 2009 (Vic). Meanwhile, in Western Australia and New South Wales, there is no such power to award costs to the defendant during committal.

What costs are attached to indictable offences?

When discussing costs in relation to indictable cases, after a trial or plea, no order for costs either for, or against, the prosecution can be made, as Brooking J said in R v Wright, Danci and Currie (1994) 77 A Crim R 67 (Vic FC) (at 68):

“It is often said that in criminal prosecutions on indictment or presentment no order for costs may be made against the Crown because of the rule (sometimes described as the general rule) that the Crown neither pays nor receives costs… But, with the greatest respect, it appears to me that the reason why costs cannot be awarded against the Crown on a prosecution for an indictable offence is not the special position of the Crown. It is the simpler and more fundamental reason that, in the absence of statute, there is no power to award costs.”

Where the prosecution makes an appeal to a Court of Criminal Appeal on a point of law, the prosecution may be ordered to pay the respondent’s costs (per R v Bibaboui [1996] A Crim R 527 at 536 (CA)).

For appeals to the High Court by the prosecution, the High Court in Yanner v Eaton [No 2] 74 ALJR 376 said in a joint judgment (at [4]):

“[I]f there is discretion to make such an order, that discretion would ordinarily be exercised in favour of a successful defendant.”

The Court further added:

“[T]he appellant having succeeded in this court and having been entitled to succeed in the Court of Appeal, the costs in this court and in the Court of Appeal should follow the event. The facts that the case may be seen as important or as raising issues having effects beyond the immediate parties, lead to no different conclusion.”

In instances where the prosecution applies for special leave in the High Court, the onus for costs will usually lie with the prosecution.


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