Summary of Key Points: Costs are available in criminal proceedings where legislation gives a court jurisdiction to award them – criminal costs orders were eschewed in common law. Generally speaking, costs can be awarded by the Magistrates’ Court only. A costs order is compensatory, not punitive, and in exercising its discretion to award costs, a court must have regard to relevant considerations, and ignore irrelevant considerations. However, think very carefully before appealing a costs order; you are unlikely to succeed.
- 1 Common Law Rule
- 2 Legislative Rules About Criminal Costs
- 3 General Principles Applying To Costs Orders
- 4 Which Expenses Count As Costs?
- 5 UK Comparison
- 6 Comment on Latoudis and Acquittals
- 7 Key Cases and Further Reading
Common Law Rule
There is no doubt that at common law the Crown is by its prerogative exempt from the payment of costs in any judicial proceeding, and that this right cannot be taken away except by Statute. The words of the Statute need not, however, be express: It is sufficient if the abolition of the privilege appears by necessary implication. The reason formerly given for the rule was that it was beneath the dignity of the Crown either to receive or pay costs. In the case of Attorney-General v. Corporation of London, Lord Cottenham L.C., put the rule on the ground of reciprocity of right and obligation, and said that in cases in which the Attorney- General sued for the Crown he ought not to receive costs unless he could if unsuccessful have been ordered to pay them. (Affleck v The King (1906) 3 CLR 608, 630 per Griffiths CJ)
This point has been affirmed repeatedly.1 In criminal matters, the rule was refined: “… in criminal proceedings brought by the crown costs will not be awarded in favour of or against the Crown”.2
What Types Of Proceeding Are “Criminal Proceedings” “Brought By The Crown”?
So, no costs are payable in “criminal proceedings”. What is the scope of that term? Criminal proceedings include interlocutory processes, such as applications for change of venue, adjournment and stay; they also include appeals against sentence.3
Whether or not a particular application or court hearing is properly characterised as ‘criminal’ is often hotly contested. Existing caselaw is rarely on point, as the legislation applying in each case can be significantly different to legislation that applies in the next case.
“Brought By The Crown”
In indictable proceedings, identification of the Crown is easy: the DPP is the Crown for the purposes of the rule. However, some interlocutory processes associated with indictable proceedings may not be considered to be brought by or against the Crown. So, in R v Barbaro (1992) 108 ACTR 1, the court awarded costs to the Commissioner of Police, who had been served with an oppressive subpoena by the accused. The court reasoned that the general rule did not apply, as it was the Commissioner, not the Crown, who had been subpoenaed:
Whilst it may well be that the application by the Commissioner to set aside the subpoena is properly regarded as an interlocutory application in a criminal proceeding (a point which I find unnecessary to decide), the position of the Commissioner as a person named in a subpoena is not to be equated with that of the Crown in criminal proceedings brought by the Crown against an accused.  – 
But even in cases where the proceedings are clearly brought by (or against) the Crown, the court may sometimes award costs anyway, if the circumstances warrant it: for an overview, see the majority judgment in R v Goia (1988) 81 ALR 656,  FCA 302.
What about summary proceedings? Are these “brought by the Crown?” You will recall from Corporate Crime 101: Prosecutors, Regulators and Informants in Australia that summary prosecutions are ordinarily filed in a police officer or regulatory staff member’s own name.
Common Law Rule Abolished In the Summary Jurisdiction?
Whatever you read on this subject, you will no doubt come across the claim that the common law rule that the Crown neither receives nor pays costs has been ‘abolished’ in the summary jurisdiction. Indeed, Rogers J made the comment in 1933 that the Justices Act, granting courts the power to award costs in summary proceedings ‘displaced’ the old common law rule about the Crown and costs; and Mason CJ said in 1990 that
“[t]he old rule was that the Crown neither receives nor pays costs notably in criminal proceedings. That rule has been displaced. Indeed, it could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings.” (Citations omitted.)
I query whether that is correct. In my view, the common law rule never did apply to summary prosecutions, as the Crown is not a party in summary matters.4
Rather, I think there developed a convention not to award costs in summary matters based on different principles entirely. The dominant ideology for some time was that it would be unfair to order costs against an informant, as these would be payable personally, despite the fact the charges were issued in the course of the informant’s employment. And, as Darley CJ expressed in Ex Parte Jones (see p315) back in 1906, the risk of a costs order may convince a police informant not to bring a case before the court, impermissibly encouraging informants to substitute their own findings of fact for the Magistrates’.
As for costs against an offender, I haven’t seen any cases on point (let me know if you know of any) but it seems logical that one of two approaches would have been followed. Either courts considered that as costs were not paid by the informant personally, she lacked jurisdiction to apply for their reimbursement; or, if she did have jurisdiction, it must have been considered unfair for an informant personally to receive the windfall of costs when in fact it was her employer who expended funds litigating a successful prosecution. Or perhaps there was a view that offenders should not be billed for their own prosecution. Whatever the case, in my view, the common law rule about costs and the Crown never did apply in summary matters: entirely separate principles applied. Ultimately, however, this doesn’t matter for practitioners, as each jurisdiction has legislation expressly granting its Magistrates’ Court (or equivalent) the power to award costs in criminal proceedings. Now that this legislation exists, there is generally also legislation to direct that costs in these matters are payable to, or by, the informant’s employer, or other entity/fund.
Legislative Rules About Criminal Costs
As the availability of costs in criminal matters is determined by statute, it varies across the Australian jurisdictions. I will focus on Victoria here.
Court-Issued Cost Orders
Prosecution on Indictment: Victoria
There are two narrow discretions granted to judges of the County and Supreme Courts in Victoria to award costs in criminal proceedings.
The first is conferred by s404 Criminal Procedure Act 2009. It provides that:
(a) the Supreme Court or the County Court is satisfied that an act or omission by, or on behalf of, a party before the commencement of trial was unreasonable and resulted in prolonging the trial; or
(b) there has been a departure referred to in section 233; or
(c) a party has failed to comply with a requirement of Part 5.5 or an order made under that Part—
the court may make any order that it considers appropriate with respect to the costs of and incidental to the trial and, for this purpose, it has full power to determine by whom, to whom and to what extent those costs are to be paid.
(2) An order under subsection (1) may be made against—
(a) a party, whether the Crown or the accused; or
(b) a party’s legal practitioner or, in the case of a legal practitioner who is employed by a law practice (within the meaning of the Legal Profession Uniform Law (Victoria)), the law practice.
The second narrow discretion is conferred on all courts hearing minor Commonwealth offences: ss 19B, 20 Crimes Act 1914 (Cth) empower the court to make a costs order against an offender as part of a conditional release following conviction.
These circumstances are unusual. So, ordinarily, costs are not awarded in criminal matters prosecuted on indictment.
However, some subject-specific Acts may provide additional jurisdiction to award costs: for example, s8ZN of the Taxation Administration Act 1953 provides that “[i]n a prosecution for a prescribed taxation offence, the court may award costs against any party.”
However, even if costs are, according to legislation, available in the indictable prosecution, the prosecutor will not necessarily seek them: in its National Practice Direction on costs, available here, the CDPP advises:
“In keeping with accepted practice, the Crown will not seek professional costs when successful in:
- proceedings on indictment, including guilty pleas; or
- appeals, whether against conviction or sentence, emanating from trials on indictment, and will oppose an order for costs in favour of a successful defendant:
- in proceedings on indictment; or
- in appeals emanating from trials on indictment.”
Some other states do have legislation granting higher courts a broad, general discretion to award costs: see, e.g., Costs in Criminal Cases Act 1967 (NSW) and see Chapter 3, Part 2, Division 7, and Chapter 4, Part 2, Division 4 of Criminal Procedure Act 1986 (NSW).
Summary Prosecution: Victoria
In Victoria, two statutes give Magistrates jurisdiction to award costs in criminal proceedings. Section 400 Criminal Procedure Act 2009 (Vic) and section 131 Magistrates’ Court Act 1989 (Vic) overlap significantly. The latter provides that:
(1) The costs of, and incidental to, all proceedings in the Court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid. …
(2A) In exercising its discretion under subsection (1) in a proceeding, the Court may take into account any unreasonable act or omission by, or on behalf of, a party to the proceeding that the Court is satisfied resulted in prolonging the proceeding. …
(2C) If the Court determines to award costs against an informant who is a police officer, the order must be made against the Chief Commissioner of Police.
(Pity the non-police informants employed by local councils or regulatory agencies who are required to issue criminal proceedings in their own name! One hopes they are indemnified by their employers, or that the legislation under which they prosecute modifies the position.)
Section 131(1) applies to all Magistrates’ Court proceedings, and, therefore, it applies to summary proceedings for indictable offences triable summarily, despite what is said in Fox & Frieberg.5
Frieberg6 notes that it is unclear whether s131 Magistrates’ Court Act 1989 (Vic) applies to Commonwealth proceedings in the Victorian Magistrates’ Court; see R v Kinal  Tas SR 91 saying it does not, and Alexander v Donohoe (1906) 4 CLR 781 suggesting it does. But keep in mind that the Commonwealth statute creating the offence may itself confer jurisdiction, much like s8ZN Taxation Administration Act 1953, noted above.
To review the availability of costs orders for the costs of appellate criminal proceedings and retrials in Victoria, see Appeal Costs Act 1998 (Vic), which is administered by the Appeal Costs Board.
Administrative Costs Orders
Rather astonishingly, ASIC is empowered, under s91 ASIC Act (Cth) and s319 of the National Consumer Credit Protection Act 2009 (Cth), to order a person who is convicted of an offence, or against whom judgment is awarded, or a declaration or other order is made in a court proceeding, to pay all or part of ASIC’s costs of investigation. It makes such an order unilaterally; unlike a costs order, it is not an order made by the court. But a failure to comply with such an order is a strict liability offence, and the order is enforceable in court.
As of July 2015, ASIC has determined to use these powers more regularly; it provided guidance on how it would do so here.
Similar powers are granted to the Registrar for the purposes of the Financial Intermediaries Act 1996 (Qld) – see s201 – but I have been unable to find similar powers granted to any other regulator. If you know of any, please let me know.
General Principles Applying To Costs Orders
What Is The Purpose Of A Costs Order?
Mason CJ noted the ‘fundamental principle’ that an award of costs is not punitive:
If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott, at p 111. Latoudis v Casey (1990) 170 CLR 534 at 
Toohey J affirms this point in his judgment at , as does McHugh J at .
However, the cases demonstrate that courts frequently do view costs orders as punitive: for example, in Jandreoski v Colley Teague J says that “the defendants had merely exercised their right to remain silent. As stated in Larrain, they were entitled to do so. They should not be penalised as to costs for doing so.”7 Perhaps Teague J was noting that costs orders are not to be used as substitutes for punishment where there is a “lucky” acquittal. But the language might also suggest that a costs order is essentially punitive: Latoudis establishes that this is not the case.
When Should Costs Be Awarded (Or Not)?
First, you must consider the statute conferring power to award costs; it will determine the breadth of the court’s discretion. Here in Victoria, the County and Supreme Courts have a very limited discretion; but the Magistrates’ Court enjoys a very wide one.
Whatever the case, within the terms of the statute, the discretion is “unfettered”.8 Where jurisdiction exists, a successful accused can generally expect her costs: back in 1990, Mason CJ wrote that
I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant. Latoudis v Casey (1990) 170 CLR 534 at .
However, costs do not automatically follow; an unfettered discretion must still be exercised correctly. A court must take into account all relevant considerations, and not take into account irrelevant considerations, when determining whether to order costs. A failure to do one of these things may give rise to an appeal on the basis the discretion miscarried.
The following are irrelevant considerations that must not be taken into account by the court assessing a costs application in criminal proceedings:
In cases where the Prosecutor seeks costs
- Possibly: the fact that the informant will be receiving a fine anyway9
- Possibly: the fact that the prosecutor is a public authority10
In cases where the Acquitted Accused seeks costs
- The court’s feeling that, although she committed no crime, the acquitted accused’s behaviour that was the subject of the charge nonetheless deserves sanction, or the court’s feeling that, although the behaviour was not criminal, if the accused had simply desisted, the charges would never have been brought, and therefore, the accused does not deserve her costs.11 However, this is to be distinguished from the accused’s “reprehensible” conduct: see below.
- The fact that the prosecution was brought in the public interest12
- The fact that the informant acted in a private capacity… or a public one. 13
- The fact the accused was “lucky” to avoid conviction: “Was the defendant lucky to escape conviction, in that the proceeding was dismissed only because there was say a failure to satisfy the criminal onus as to an element of the offence?”14
- Whether the prosecutor acted reasonably in bringing the prosecution. 15
The following are relevant considerations:
- Whether by her own conduct, the acquitted accused brought about the failed prosecution. For example, it is a relevant consideration whether an acquitted accused refused to provide an explanation, prior to the charge filed, for her behaviour, which would have prevented the prosecution from occurring.16
- Whether, by her own conduct, an acquitted accused or an offender unnecessarily lengthened the proceedings.17
- Consistency. Although note this is described as a “consideration” to which the court “may have regard”.18
- Proportionality. (Again, this is described as a “consideration” to which the court “may have regard”. The proportionality of what to what, however, is (in my view) not clear. It is described as the proportionality of costs to “the criminality of the conduct in issue”. But is that the specific conduct in the particular case, or the type of offence more broadly? Does it matter if the criminality is not immediately obvious and requires substantial cost outlay to discover and analyse, or special (and expensive) expertise to detect or explain? Some “minor” offences, particularly in the regulatory space, can require painstaking investigatory and legal work to identify, charge and prove.) 19
- Possibly: Means of the offender. Fox & Frieberg report that the court must consider the offender’s means and the impact of a costs order on her creditors.20 However, they rely for support on the 1928 case of R v Whalland. That case is problematic because the legislation granting costs jurisdiction is quite different to anything in use today, and at the time the court was asked to make the costs order, “the Acting Crown Prosecutor could only direct my attention to three instances where this power had been exercised by this Court…” The contemporary context is entirely different. The case has been cited in only one other case, by the NTSC in 1989. In the UK, it is well established that the means of the offender is a relevant consideration – see, for example, R v Olliver and Olliver, 11 Cr.App.R.(S)10 – however, that principle (like many others listed here) has not been given much consideration in the corporate crime context. If you know of any Australian caselaw dealing with the issue of the offender’s means to pay and its relevance to costs orders, please let me know.
- Whether some of the charges resulted in dismissal/acquittal, and some resulted in findings of guilt/conviction. This may result in a reduction of the costs awarded, but not necessarily: in Rodrigues (CEO of Customs and Border Protection) v Kozangoglu, the Victorian Magistrates’ Court awarded the prosecutor his full costs, despite the fact that two of the three charges were dismissed: this was due to the manner in which the accused conducted his defence. For a look at the UK law on this point, consider, e.g., R v Splain  Cost L.R. 465, CA.
- The accused’s “reprehensible conduct”.21
How Should Costs Be Taxed?
Whereas in higher courts, a taxing officer may determine the quantum of costs to be paid, a Magistrate exercises two functions simultaneously: determining whether a costs order will be made, and determining the amount of that order. In determining the amount of the order, the Magistrate’s discretion, within the terms of the governing statute, is “entirely at large”.22 Civil costs and taxing terms are not used in criminal courts, unless the presiding Magistrate or Judge determines to use them, finding them useful. Whereas a civil court will explain whether a costs order is made on a “party party basis”, “indemnity basis” or some other basis, and applies taxing principles when reviewing a contested bill of costs, a criminal court uses no such terms. The only question for the Magistrate, is what, within the terms of the governing statute, the Magistrate considers to be the appropriate exercise of her discretion to award costs. Although Latoudis established that a successful accused is ‘ordinarily’ entitled to her costs, that case says nothing about how those costs should be fixed.23
Which Expenses Count As Costs?
In general, “professional costs” can be claimed, but “investigation costs” cannot. As always, consult the relevant legislation: it may set out the scope of costs that can be made the subject of a costs order. For example, professional costs are defined by s211 Criminal Procedure Act 1986 (NSW) as “costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.”
The purpose of costs, namely to “indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings” (Latoudis v Casey (1990) 170 CLR 534), guides the discretion.
At common law, expenses that may be claimed as costs include:
- court fees24
- fees of witnesses, including professional witness25
- costs of scientific evidence such as a blood sample26
- the accused’s lost wages27
- legal fees 28
- disbursements, for example, fees for sending letters29
- service fees 30
Toohey J observed in 1990, that at that time, costs payable by offenders were generally calculated to include “court fees, [and] the fees of witnesses, including professional witnesses, and the costs involved in obtaining scientific evidence such as a blood sample.” He noted that solicitor and counsel fees were not ordinarily included, because police would prepare and advocate their own matters: however, this practice is not generally followed by regulators, who may claim staff costs of preparing litigation.
While blood tests and expert reports are considered “professional fees”, they might also be characterised as investigation costs. Whether investigation costs more broadly are sought and awarded seems to vary significantly depending on the prosecutor and the type of offence prosecuted.
In its National Legal Direction on Costs, available here, the CDPP says “[i]nvestigation costs are not recoverable in successful prosecutions under section 21B of the Crimes Act 1914 and accordingly, the CDPP does not does not seek orders in relation to the recovery of investigation costs.”
Section 21B Crimes Act 1914 (Cth) provides:
Reparation for offences
(a) a person is convicted of a federal offence; or
(b) an order is made under section 19B in relation to a federal offence committed by a person;
the court may, in addition to the penalty, if any, imposed upon the person, order the offender:
(c) to make reparation to the Commonwealth or to a public authority under the Commonwealth, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth or the authority, as the case may be, by reason of the offence; or
(d) to make reparation to any person, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the person by reason of the offence.
(2) A person is not to be imprisoned for a failure to pay an amount required to be paid under an order made under subsection (1).
It’s not obvious that an authority’s investigation costs would not be recoverable under this section; presumably there’s some common law informing the CDPP interpretation. But whatever the case, the CDPP never seeks investigation costs.
Some subject-matter legislation specifically allows a court to award the prosecutor its costs of investigation (it’s very common for environmental offences): for example, s248 Protection of the Environment Operations Act 1997 (NSW) provides:
(1) The court may, if it appears to the court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the regulatory authority the costs and expenses so incurred in such amount as is fixed by the order.
Similarly, s503 Environment Protection Act 1994 (Qld) allows the Qld EPA to seek its investigation costs following a conviction.
What about the regulator’s costs in responding to, or remedying the offence? For example, the costs of cleaning up an oil spill; the costs of product recall actions, the cost of ambulances, firefighters and police attending a collapse at a construction site; the cost of hospital treatment to victims of food poisoning; the costs of firefighting, relocation, housing, feeding, counselling and nursing of victims, restorative environmental planting and town design when a major disaster, like a mine fire, explosion, or faulty telephone pole destroys a whole town?
These costs aren’t claimable by the informant as part of an ordinary costs order. They may, however, be available as part of a “costs recovery order” — you will need to search the relevant legislation to determine whether jurisdiction for such an order exists in any given case. In Victoria, for example, cost recovery orders are only available for the offences of contamination of goods and bomb hoaxes.
On What Grounds May A Costs Order Be Appealed?
Osborn J observed in 2010, in Hobsons Bay that:
[t]he general principles governing appeals from the exercise of discretion as to costs were expressed by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth:31
“..the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King32“
His Honour went on to endorse the following statement by Jordan CJ in Schweppes Limited v Archer:33
In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer’s decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances, but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will do so only in an extreme case. (Citations omitted)
He later observed that “an appellant in an appeal on questions of law [must] demonstrate not only that an error of law occurred but that it was a vitiating error”, citing Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 and 22.
Finally, noting the Victorian statue giving rise to the appeal, His Honour concluded:
The right of appeal to this Court [the SCV] from final orders within criminal proceedings of the Magistrates’ Court is one on questions of law only.34 Accordingly, just as it is not open to challenge the weight given to relevant factors in reaching a conclusion of fact, it is not open to challenge the weight given to relevant factors bearing on the exercise of a discretion.35 The critical question is whether it was open to the Magistrate to conclude as he did having regard to relevant factors.36
Think very carefully before appealing a costs order. Courts have repeatedly expressed their dissatisfaction with the use of court resources for this purpose: see, e.g., Redl v Toppin and Norton v Senior Constable RJ Morphett.
How Does A Costs Order Impact The Sentencing Exercise?
Hobsons Bay and Agar v McCabe provide authority for the view that the size of a criminal fine may be taken into account in setting the size of the costs order, but does it work the other way around? Can costs (especially administrative costs) be taken into account when setting the criminal penalty/ies?
Well, in R v Whalland, Angas Parsons J considered that “the order to pay costs, when made, is part of the sentence of the Court, and I have no doubt that it should be taken into account in imposing a sentence of imprisonment.” I’ve noted above the problems with Whalland, and won’t repeat them. But this statement is attended by further problems, particularly its assumption that the costs order is to be determined before the sentence, and the sentence fixed to accommodate it: if any accommodation is to be made, it must surely be to the costs order. And if, say, an administrative costs order has been made prior to the imposition of sentence, it may only be taken into account insofar as it impacts the factors that the court can properly consider in the exercise of its sentencing discretion. This statement by Parsons J has not received support in other judgments; though if you are aware of any relevant cases, please let me know.
What about the offender’s own legal costs? In fixing a criminal penalty, the sentencing court must not take into consideration the quantum of the offender’s costs in defending the proceedings.37
For an overview of the UK criminal costs law and procedure, review the UK Practice Direction (Costs in Criminal Proceedings) 2015.
Comment on Latoudis and Acquittals
Latoudis v Casey is perhaps the most important Australian criminal costs case. Unfortunately, it includes some troubling dicta. Two of the Justices in the plurality make a statement that I’m quite certain they would have re-phrased, had they had been pressed to defend it. The statements are as follows (with my emphasis):
Per Mason CJ:
In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. 
Per Toohey J:
The point was made succinctly by Mann J. in Anstee v. Jennings, at p 148:
” It may be worth while to point out that the order
for costs in a Court of Petty Sessions or other costs should have nothing to do with the reasonableness of the informant’s action. It is a matter of giving proper indemnity to a successful defendant for costs to which he has been put without lawful justification.” 
This passage was also cited with approval by Dawson J in his dissenting judgment.
According to Mason CJ, a prosecution resulting in acquittal is one that should never have been brought; Toohey and Dawson JJ go further and characterise it as unlawful.
Neither characterisation is correct. If either was, the informant would be required to be certain that proceedings would result in a finding of guilt, when filing charges. To require such certainty would allow an informant to partially usurp the role of the tribunal of fact, whether a Magistrate or jury. It would also have the practical impact of reducing, perhaps to zero, the number of difficult cases brought before the criminal courts.
In fact, the the decision to prosecute is based on the informant’s satisfaction that there is “sufficient” evidence to proceed, and that it is in the public interest to do so.38 The CDPP explains sufficiency of evidence in this way:
the CDPP must be satisfied that there is prima facie evidence of the elements of the offence and a reasonable prospect of obtaining a conviction.
This test necessarily results in a proportion of prosecutions that terminate in dismissal or acquittal. It is widely accepted that a healthy prosecutorial system must aim for a high, but not absolute, percentage of convictions — a conviction rate that is too high is unsettling. Setting the bar for prosecution too high results in informants declining to prosecute more difficult cases despite a reasonable prospect of success. Just a generation ago, this sort of thinking resulted in, among other things, a general practice not to prosecute sex offences lacking “collaborative” evidence. This is no longer the case, and, generally speaking, the community is more satisfied with the contemporary approach.
Key Cases and Further Reading
Alexander v Renney (Batt J, unreported, 21 August 1995)
Junek v Busuttil (Kellam J, unreported  VSC 115, 7 April 2004)
Larrain v Clark (Smith J, unreported, 13 July 1995)
Latoudis v Casey  HCA 59; (1990) 170 CLR 534
Nguyen v Hoekstra (1998) 99 A Crim R 497
Oshlack v Richmond River Council  HCA 11; (1997-1998) 193 CLR 72
Redl v Toppin  VicSC 159 (1 April 1993)
- See, e.g., Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at , Attorney-General of Queensland v. Holland (1912) 15 CLR 46, at p 49; Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90, at 92; R v J  FCA 228; (1983) 49 ALR 376 at 379 per Gallop J; and McEwen v Siely (1972) 21 FLR 131 at p 135.
- R v J  FCA 228; (1983) 49 ALR 376 at 379 per Gallop J.
- Affirmed in R v Goia (1988) 81 ALR 656,  FCA 302 at  and  of the majority judgment.
- See, e.g.: John L. Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
- Arie Frieberg, Fox & Freiberg’s Sentencing; State and Federal Law in Victoria (Lawbook Co, 3rd ed, 2014) at [8.130]; Frieberg says that whether costs are available depends upon whether the offence is indictable. However, the basis for those comments is South Australian case law, where the relevant statute is formulated differently.
- Arie Frieberg, Fox & Freiberg’s Sentencing; State and Federal Law in Victoria (Lawbook Co, 3rd ed, 2014) 560
- The statement may have originally been made by Eames J in Redl v Toppin: “Such a person should not be penalized as to costs merely because that course was adopted and for that reason.” And later again, “to penalise him on costs for such a reason would be to diminish the force and effect of his acquittal.”
- Hobsons Bay City Council v Viking Group Holdings Pty Ltd  VSC 386 at .
- Arie Frieberg, Fox & Freiberg’s Sentencing; State and Federal Law in Victoria (Lawbook Co, 3rd ed, 2014) [8.140] says “it is improper for a magistrate to: decline to make an order for costs in favour of a successful informant because the informant would, in any case, be receiving the fine imposed…” However, the case cited in support, Minister v Woolworths (Vic) Ltd  VR 514, 522, is not, in my view, supportive of that statement. The relevant legislation there required the court to order costs, and, in any case, when I read the court’s reasoning, I don’t believe it is talking about this issue. In fact, there is some authority, noted below, that the size of the fine can, in some cases, be properly used to reduce the size of a costs order – but that has to do with the offender’s means, not the identity of the person receiving fines/costs.
- See Oshlack v Richmond River Council  HCA 11; (1998) 193 CLR 72 per McHugh J at – but note McHugh J was in the minority: “Nor is the status of the respondent as a public authority presently relevant. The law judges persons by their conduct not their identity. In the exercise of the costs discretion, all persons are entitled to be treated equally and in accordance with traditional principle. The fact that a successful respondent is a public authority should not make a court less inclined to award costs in its favour. Gone are the days when one could sensibly speak of a public authority as having ‘available to them almost unlimited public funds’. Moreover, if costs awards are not made in favour of successful respondents such as the Council, the public services which those authorities provide must be adversely affected. Every irrecoverable dollar spent on litigation is one dollar less to spend on the services that public authorities do and ought to provide. Often enough the services that will be reduced will be those that favour the politically weak – children, the unemployed, the disabled and the aged. Such results cannot be in the public interest.” (Citations omitted)
- Redl v Toppin  VicSC 159 (1 April 1993). In that case, the accused was charged with offensive behaviour and use of insulting words in a public space. The charges were dismissed for want of evidence and the accused made a costs application. The magistrate denied that application, on the basis that, although not criminal, the behaviour in question was still anti-social, and if the accused had just complied with police requests to desist, he would never have been charged in the first place. On appeal, that decision was upheld, but on further appeal, the decision was overturned: the court cannot decide that the very behaviour charged, which does not amount to a criminal act, can nonetheless be ‘sanctioned’ by declining to order costs, which an acquitted person is ordinarily entitled to.
- Oshlack v Richmond River Council  HCA 11; (1998) 193 CLR 72 per Brennan CJ at  -, affirming Latoudis.
- Jandreoski v Colley  VSC 131 per Teague J at -
- Jandreoski v Colley  VSC 131 per Teague J at -, but note: “I acknowledge the qualification stated in Nguyen at 806. A magistrate might, when stating that the prosecutor acted reasonably, mean no more than that the defendant had brought the prosecution upon himself.”
- Toohey J gives the explanation in Latoudis at , as follows: “if a defendant has been given the opportunity of explaining his or her version of events before a charge is laid and refuses the opportunity, and it later appears that an explanation could have avoided a prosecution, it may well be just and reasonable to refuse costs: see, by way of illustration, The Queen v. Dainer; Ex parte Milevich (1988) 91 FLR 33. This has nothing to do with the right to silence in criminal matters. A defendant or prospective defendant is entitled to refuse an explanation to the police. But if an explanation is refused, the successful defendant can hardly complain if the court refuses an award of costs, when an explanation might have avoided the prosecution.”
- Latoudis v Casey (1990) 170 CLR 534 per Toohey J at : “if the manner in which the defence of a prosecution is conducted unreasonably prolongs the proceedings, for instance by unnecessary cross-examination, neither justice nor reasonableness demands that the successful defendant be indemnified, at any rate as to the entirety of the costs incurred.” For a more recent example, consider the Victorian Magistrates’ Court decision to award costs in Gent v Abernethy
- Hobsons Bay City Council v Viking Group Holdings Pty Ltd  VSC 386 from  onwards. In this case, the offences could be prosecuted by police or council informants; it was police practice not to seek ‘legal costs’, and therefore it was acceptable for the council to be denied its legal costs, as to do otherwise could create “a system which may appear adventitious and arbitrary in its outcomes”
- See Hobsons Bay City Council v Viking Group Holdings Pty Ltd  VSC 386 at : “I accept that the purpose of an award of costs is not to punish the unsuccessful party but to indemnify the successful party. Nevertheless, in the present case the Magistrate was in my view entitled to compare total outcomes in terms of fines plus costs, with other outcomes of the summary prosecution system not only as informing a view as to consistency, but also as informing a conclusion as to the proportionality of the costs sought to the criminality of the conduct in issue.” It is seriously difficult to see how this does anything but treat costs as punitive, or how it is conceptually distinct from consistency. The sentiment was confirmed in Agar v McCabe at - , where, to make matters worse, His Honour described the fine plus costs in a matter as the “total pecuniary outcome”, conceptually homogenising the moneys subject to each type of order. In that case, however, the court stressed at  that “[p]roportionality and consistency are only two of the many considerations that guide the costs discretion and provided they are taken into account it is not a ground of review that they might have been given excessive or inadequate weight, or that a different conclusion on costs could or should have been reached.”
- Arie Frieberg, Fox & Freiberg’s Sentencing; State and Federal Law in Victoria (Lawbook Co, 3rd ed, 2014) [8.145]
- Redl v Toppin  VicSC 159 (1 April 1993) per Brookings J at p4: “I am speaking of conduct might be said to be so reprehensible (I use a vague term advisedly) that it would not be just to allow costs to follow the event.” In the same judgment, Eames J said at pp10-11, “It could well be, for example, that where a case was dismissed solely because of a or [sic] technical failure of proof on the part of the prosecution or where, for example, a charge was dismissed solely because of the non-attendance of a witness, that the circumstances out of which the charge arose might remain a relevant consideration together with other considerations on the question of costs. I say nothing as to that…”;also consider Teague J’s comments in Jandreoski v Colley at , , - the accuseds’ conduct was considered relevant in that case.
- See Brett Norton v Senior Constable RJ Morphett and Magistrates’ Court of Victoria At Heidelberg (Constituted By Mr B Docking, Magistrate)  VSC 211;  VICSC 211 (31 October 1995) per Phillips JA at :”Under s.131(1) the magistrate plainly has an unfettered discretion – both in relation to the awarding of costs and in relation to the fixing of their amount. In relation to the first, Latoudis must be taken into account when the magistrate is deciding whether to order costs or not; but when such an order is resolved upon, the question of fixing the amount of those costs is one on which he is altogether at large. of course the discretion conferred in this regard is a judicial discretion and must be exercised accordingly; it cannot be exercised capriciously, by reference to mistaken facts or irrelevant considerations or for some purpose altogether foreign to that for which the discretion is conferred in the first place: see, for example, House v. The King  HCA 40; (1936) 55 CLR 499 at 504-5, Australian Coal and Shale Employees’ Federation v. The Commonwealth  HCA 25; (1953) 94 CLR 621 at 627 and Magna Alloys and Research Pty. Ltd. v. Coffey  VicRp 3; (1981) VR 23 at 26. But subject to such considerations which go to ensure that discretions which are conferred in general terms are nevertheless exercised judicially, the discretion is at large and the magistrate must exercise it as he sees fit in the light of all the particular circumstances of the case before him.”
- See Brett Norton v Senior Constable RJ Morphett and Magistrates’ Court of Victoria At Heidelberg (Constituted By Mr B Docking, Magistrate)  VSC 211;  VICSC 211 (31 October 1995)
- Latoudis v Casey (1990) 170 CLR 534 per Toohey J at .
- Latoudis v Casey (1990) 170 CLR 534 per Toohey J at .
- Latoudis v Casey (1990) 170 CLR 534 per Toohey J at .
- Frieberg lists this in Fox & Freiberg’s Sentencing; State and Federal Law in Victoria (Lawbook Co, 3rd ed, 2014) at [8.135], but doesn’t provide a reference.
- See Hobsons Bay and Agar v McCabe; also Sobh v Children’s Court of Victoria 74 A Crim R 453
- See Hobsons Bay.
- See Hobsons Bay.
- (1953) 94 CLR 621, 627.
- (1936) 55 CLR 499, 504-505
- (1934) 34 SR (NSW) 178, cited in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, 628-9.
- Criminal Procedure Act 2009, s 272(1).
- Secombs (a firm) v Sadler Design Pty Ltd  VSC 79, -; Transport Accident Commission v Hoffman  VR 197, 199.
- S v Crimes Compensation Tribunal  1 VR 83, 89 per Phillips JA.
- See R v Hoar and Noble  FCA 20; (1981) 34 ALR 357, 364: “It does seem however that the Chief Justice did place some weight, by way of mitigation, on the costs to the respondents of the trial. It is difficult to be entirely dogmatic about any aspect of sentencing, but the case must be rare indeed, if there can be such a case at all, when a consideration of that nature can weigh with the court. An accused is not of course to have his sentence increased because he pleads not guilty and puts the Crown to proof, maybe strongly defending the charge. If he pleads guilty, particularly if he manifests his attitude at an early stage, this may be a mitigating factor. But the legal costs of an unsuccessful defence is a different matter. We are on the whole of the view that in this case the exercise of his Honour’s discretion miscarried.”
- See, e.g.: CDPP Prosecution policy; Victorian DPP prosecution policy.