Understanding Costs in Magistrates' Court Criminal Matters: A Case Example
Navigating the complexities of the legal system can be daunting and costly, especially when facing criminal charges. Amid the criminal proceedings in the Magistrates’ Court, there exists confusion surrounding the entitlement of costs for accused persons who emerge victorious in their cases. I vividly recall a moment during my early days as a junior criminal lawyer when a police prosecutor cautioned me against mentioning the “C word” during a case conference. Little did I know then that this seemingly forbidden term could trigger hostility, adversarialism and resistance in negotiations with the police, akin to uttering some other taboo word.
Nonetheless, it is important to recognise that every successful accused person in the Magistrates’ Court has a lawful right to claim their legal costs. In this blogpost, we aim to dispel the misconceptions surrounding the elusive “C word” by shedding light on a recent case from our office, where costs were rightfully awarded to our client. Moreover, we will provide insight into the existing laws governing costs in summary criminal matters at the Magistrates’ Court, emphasising that costs should always be sought by those who have triumphed in their cases.
Case Example: A Matter of Careless Driving
Our client, 46-year-old male with an unblemished criminal and driving history, faced an unexpected legal battle when involved in a car accident in August 2022. His vehicle had flipped onto its roof after striking two parked cars, leaving a trail of destruction. There were no skid marks at the collision scene, and the speedometer needle was stuck at 82 km/h in a 50 km zone. Thankfully, there were no injuries to our client or bystanders.
The police detailed that our client appeared dazed and confused at the collision scene. Our client was unable to provide an account of the accident and speculated that fatigue might have been the cause, despite recalling having had a restful night's sleep. Police quickly ruled out any influence of drugs and alcohol through testing, and body-worn camera footage revealed that the officer suspected the collision could have been from a medical episode.
The police decided to immediately refer the case to VicRoads for a medical assessment. Three days after the accident, our client visited a neurologist who changed his epilepsy medication and declared him unfit to drive for the next 12 months. Five months later, the police charged him with careless driving.
To avoid lengthy proceedings, our office initiated contact with the prosecution, seeking a withdrawal of the charge without costs. In support of our client’s position, we obtained a letter from the treating neurologist who confirmed our client’s medical history of epilepsy and opined that the accident “could be due to an epileptic seizure”. At this stage, our client was willing to bear the legal fees if the prosecution agreed to drop the matter. However, the offer was declined, with the prosecution demanding more comprehensive medical evidence linking the accident directly to the epilepsy.
In response to the prosecution's demand, a forensic medical report was commissioned, a process that incurred significant expense to our client. The forensic report conclusively established what we knew all along, that the accident was indeed a result of our client's epilepsy. Armed with this evidence, we once again requested a withdrawal, this time with costs. Police agreed to withdraw the matter but maintained that they would not pay our client’s legal costs.
Understanding the Law on Costs:
In Victoria, the law on costs in summary criminal matters is governed by Section 131 of the Magistrates' Court Act 1989 (Vic) and s 401 of the Criminal Procedure Act 2009 (Vic), which grants the Court the authority to determine who is entitled to costs and to what extent. In the leading case of Latoudis v Casey (1990) 170 CLR 534, the High Court provided valuable guidance to judicial officers in exercising their discretion regarding costs.
According to the majority in the High Court, a successful accused person in a summary criminal matter has a “reasonable expectation” to receive an order for costs. The High Court majority stated that magistrates were to look at the matter primarily from the “accused’s perspective” and if the accused’s behaviour was reasonable in the face of the investigation and the charges being laid, and the accused was successful in defending his or her innocence, then he or she was entitled to have a “reasonable expectation” of obtaining an order for the payment of his or her legal costs.1
The High Court majority (in obiter) also offered non-exhaustive examples of situations where an order for costs would not be appropriate or should be limited, including:
- When the accused's actions, such as failing to reasonably provide an account to investigators or withholding information, led to the prosecution.
- When the accused unreasonably prolonged the proceeding.
- When the accused declined, in an unreasonable manner, the opportunity to explain their version of events (note: this should not infringe upon the right to silence).
Our Client's Entitlement to Costs:
In the case discussed, we argued for our client's entitlement to costs based on a number of factors:
- Police had initially suspected a medical episode and referred our client for a medical assessment.
- Our client lost his driver's license on medical grounds before the charge was issued.
- Prosecution had an opportunity to withdraw without costs earlier in the proceeding but required additional evidence.
- Our client promptly sought expert medical opinions.
- Reports were promptly shared with the prosecution.
Prosecution argued that they withdrew the charge as soon as concrete evidence became available to them. We maintained that our client found himself in this predicament through no fault of his own. Thus, in the absence of any evidence by the prosecution to show that our client brought the charges on himself or acted in a way to delay the proceeding, we argued that the prosecution was in fact inviting the Magistrate to view the matter through the lens of the police, not the lens of the accused. We submitted that the High Court majority was clear that even in circumstances where both the prosecution and the accused acted responsibly, the balance for the award of costs would tip in favour of our client.
The Magistrate concurred with our argument, awarding costs to our client, covering his legal fees and report expenses.
Conclusion
The High Court case of Latoudis establishes the legal principle that every accused person should expect to be awarded reasonable legal costs if they successfully defend themselves in summary criminal matters. Every client deserves fair consideration of their expenses when prevailing in a case. Until any potential changes to the law, the “C word” should not be feared in police negotiations, but rather embraced as a legitimate right for successful accused individuals.
*our client's consent was obtained to publish this blogpost.
1 For a great analysis of the judgment, see John Sartori, ‘Costs in criminal proceedings after Latoudis v Casey’ (1991) Melbourne University Law Review, 18(1), 154-169.
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Sarah Condon.
Principal Lawyer.
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