Criminal Law News & Current Affairs

By Tom Taylor


Why police should foot the legal bill for criminal defendants in NSW and the ACT

When should police pay? Tom Taylor of Ben Aulich & Associates takes a closer look at costs in criminal matters:

If you or someone you know is charged with a crime in the ACT and acquitted of that charge you are generally entitled to have a large portion of your legal fees reimbursed by police. The High Court has set in stone a “reasonable expectation” that persons wrongfully forced to mount a legal defence to a charge be compensated for those expenses.[1] Curiously, costs are only awarded to successful defendants for minor (summary) charges dealt with in the ACT Magistrates Court and not for serious (indictable) charges in the ACT Supreme Court. Further still, drive a few kilometres across the border to Queanbeyan or anywhere else in NSW and there is no distinction between minor and serious charges, but the chances of ever being reimbursed for expensive legal representation, even for minor matters in the Local Court, are slim.


The prospect of facing a criminal conviction, gaol and a raft of other penalties can be one of the most serious scenarios faced by persons in their life. Defendants may be forced to commit all or significant parts of their life savings towards seeking acquittal of charges that, in some cases, should never have been brought. One argument against costs being paid to successful defendants lies in the risk of deterring police from bringing charges where otherwise appropriate. But costs for a successful defendant are designed to compensate them, not to punish police for an unsuccessful prosecution or deter them from doing their job.


Why should there be a difference between the seriousness of the charges or the state in which the crime is allegedly committed anyway? The law offers little in justifying the distinction.


Defending serious criminal charges at a jury trial is an expensive endeavour. The only compensation for a wrongly charged defendant, after court proceedings that can take as long as 2 years and tens of thousands of dollars, is the Not Guilty verdict. It can sometimes be hard to sympathise with a defendant in this scenario until you stop to think whether that person could be you, a friend or member of your family. And what if you had been wrongly accused in the first place?


Facing a criminal charge in itself can do permanent damage to your reputation. Unfortunately, the presumption of innocence does not often bode well in the court of public opinion. The monetary cost, reputational damage and time and stress of charges before the ACT Supreme Court are much more significant than for a minor charge in the ACT Magistrates Court, yet there remains no power to award costs in the ACT Supreme Court,[2] even when the prosecution case is riddled with holes and doomed to failure from the start.


The inconsistencies in the law of costs in criminal matters cannot withstand any reasonable scrutiny. Perhaps it is time to rethink when and how defendant’s acquitted of charges should be compensated for legal expenses and apply the “reasonable expectation” standard to all jurisdictions and charges.


Tom Taylor



[1] Latoudis v Casey [1990] 170 CLR 534

[2] R v Richardson [2016] ACTSC 22