Costs can be awarded in Victoria for traffic and criminal matters that are dismissed, or if you are acquitted at trial. This normally occurs in the Magistrates Court but very rarely in the County, or Supreme Court. If costs are awarded then the matter may be referred to the Costs Court which is a division of the Trial Division of the Supreme Court. The Costs Court consists of Associated Judges who will review the work performed by your lawyer, consider any part your actions may have played to prolong proceedings, and the actions of the police and police prosecutor.
Costs in the Magistrates Court
The Magistrate under Section 131 of the Magistrates Court Act 1989 has the discretion to award costs in all proceedings in the Magistrates Court. Therefore if your matter is dismissed, or you are successful at a trial then you can ask the Magistrate for costs to be awarded. However, the Magistrate will take into consideration any unreasonable act, or omission, that you may have done to prolong the proceeding. This may relate to whether you refused to make a statement that if you had done would have resulted in the police not laying the charges in the first place. If the costs order is made against a police officer, or police prosecutor then the order is made against the Chief Commissioner of Police. The costs that are awarded will be at the Magistrates discretion, and may not necessarily cover all the legal fees you have been required to pay for a lawyer to represent you. In many cases the Magistrate may order that the costs of the proceeding be assessed by the Costs Court before a determination of costs is made. In these situations a copy of your legal invoice will be provided for review. Ultimately though you will still be liable for those costs if they are not paid, or the amount awarded does not fully cover the legal fees incurred.
Costs in the County Court and Supreme Court
Costs are not normally awarded in the County, or Supreme, Court. Section78A of the County Court Act 1958, and Section 24 of the Supreme Court Act 1986 does allow the Judge to make a costs order at their discretion which again may be settled by the Costs Court. However, in practice this rarely occurs, and don’t expect to obtain a costs order just because you are acquitted. if the Judge believes that an act or omission by a party before the commencement of the trial was unreasonable and resulted in the prolonging the trial then Section 404 of the Criminal Procedure Act 2009 gives the Judge the power to direct costs to be paid by the accused, the Crown, or a legal practitioner.
Costs for Appeals
If you have filed an Appeal in the County, or Supreme Court, and your matter is discontinued, or a new trial is ordered then Section 16 of the Appeal Costs Act 1998 allows you to apply for an indemnity certificate. A certificate can also be issued if the conviction is squashed, or set aside, regardless if a new trial is ordered. The certificate will outline the payment of additional costs you may incur as a consequence of a new trial. You can also apply for an indemnity certificate if the prosecution adjourns the matter, incurring you further legal fees as a result. This allows you to apply to the Appeals Cost Board in regard to whether your costs can be claimed. It will be the decision of the board as to whether costs are payable or not. Applications must be made to the board within 12 months of the determination of the matter. The application forms, and maximum fees payable, are available on the Department of Justice website