Going to court can be expensive, however if you win, there are occasions when you may be awarded costs, which means that the prosecution has to cover some or all of your costs which may include legal fees or witness expenses.
Magistrates have the discretion to make costs orders during the case due to prosecution delays, and at the end of the case if prosecutors (eg police) acted improperly.
This usually happens if there is some fault on the part of the police, such as if they continue prosecuting a case after the defence has already pointed out a lack of evidence, and the magistrate throws out the case for the same reason.
Under the Criminal Procedure Act, a magistrate may award costs in the local court if the investigation was:
- Conducted in an unreasonable or improper manner;
- Were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner;
- That the prosecution failed to investigate properly any relevant matter that it was aware of or should have been aware of that may suggest that the accused is not guilty or proceedings should not have been brought; or
- Any other reasons which are exceptional and would make a costs award just and reasonable
Here’s an example of a costs award in one of our current cases:
Our client was charged with ‘sexual intercourse without consent’, also known as ‘sexual assault’, but he always maintained that the sexual acts were consensual.
Our Jimmy Singh, in consultation with our Senior Defence Team, spent a considerable amount of time looking into the police evidence. It soon became clear that their case was quite weak.
The police had failed to obtain DNA samples of the complainant’s boyfriend leading up to the trial.
The police were aware of the fact that the complainant had a boyfriend but it was not until the first day of trial that they asked for an adjournment in order to get a sample of DNA from him.
Mr Singh strongly objected to this, as the police had already had plenty of time to collect this sample if they wanted to. The granting of such an adjournment would add considerable expense for our client as well as the stress of a long, drawn-out trial.
He was successful in requesting for the court to stay proceedings until our client was compensated by the prosecution for the added costs of an adjournment. Mr Singh then pushed for our client to be paid $11,500 in costs, and the prosecution gave in to that request.
This case is still pending in court but we are confident our client will be found not guilty.
Another recent example of a successful costs application took place in Hornsby Local Court, where we persuaded the magistrate to make a cost order in our client’s favour in the sum of $7,700
In this indecent assault case, the complainant had lied to the police, telling them that she had not been in an intimate relationship with our client. After our defence team subpoenaed CCTV footage from a shopping centre and hotel, it became clear that the complainant’s story was untrue.
The footage, which was played in court, clearly showed that the complainant was intimate with our client in both the shopping centre and the hotel, although she claimed that they were not. The complainant’s credibility was severely undermined during cross-examination and it became evident that she likely made the complaint out of spite because our client discontinued the relationship.
The police had to pay compensation because of their failure to properly investigate the incident. In particular, they failed to acquire any CCTV footage from the hotel or shopping centre despite requests that they do so.
Ultimately, our client was vindicated in court. All of the charges were dismissed and the magistrate ordered that all costs be repaid to our client.
These examples demonstrate costs awards where cases should not have gone ahead.
Unfortunately, allegations without strong evidence are often still prosecuted. However, a good defence team will fight to get you the optimal result. This doesn’t just mean winning the case in court, but also getting costs orders in your favour and thereby alleviating the financial burden of the proceedings.
To read more Sydney Criminal Lawyers success stories, visit our “Recent Cases” page.