If you are preparing for a criminal trial in Queensland, the legal costs can be a major concern. It is reasonable to ask what happens if the trial has to be abandoned for a reason that is not your fault and you are required to go through the whole process again.
In short: The Queensland Appeal Costs Fund can reimburse legal costs that were "thrown away" when a criminal trial has to be run again through no fault of the accused — for example after a hung jury, a discharged jury, or a successful appeal that results in a retrial. It does not pay the ordinary cost of defending the charge, and it does not pay your lawyers up front.
Despite its name, the Fund is not limited to appeals. It can also apply when a criminal trial becomes abortive — for example, because a jury cannot agree — or when a trial is stopped and a new trial is ordered for a reason not attributable to the accused or their lawyers.
The Fund is not automatic insurance against trial costs. It does not pay every expense, it does not remove your obligation to pay your lawyers, and it does not apply simply because a case ends unexpectedly. Its role is narrower: to reimburse qualifying costs that the Appeal Costs Board considers were thrown away, or partly thrown away, because another trial became necessary.
What is the Queensland Appeal Costs Fund?
The Appeal Costs Fund is established under the Appeal Costs Fund Act 1973 (Qld) and administered by the Appeal Costs Board.
For a person facing a criminal trial, the most relevant provision is usually section 22. It deals with abortive proceedings and new trials. In broad terms, it can provide an entitlement to payment where specified events cause a trial to fail, or where a successful appeal results in a new trial.
The important words are new trial and costs thrown away. The Fund is concerned with the additional financial burden created by having to repeat proceedings, rather than with the ordinary cost of defending the charge in the first place.
Who pays for a retrial in Queensland?
In the first instance, you do. A retrial does not reset your costs agreement, and the prosecution is not ordinarily required to pay a defendant's legal costs in an indictable matter.
What the Appeal Costs Fund can do is reimburse part of the additional expense afterwards, if one of the section 22 circumstances applies and the Board is satisfied the costs were genuinely wasted. That is why the Fund should be identified as a possibility on the day the trial collapses — not months later.
When might the Fund help after a criminal trial goes wrong?
Section 22 identifies several circumstances that may be relevant.
1. The jury cannot reach a verdict (a hung jury)
A jury that cannot agree is commonly described as a "hung jury". If the jury is discharged without a verdict and the prosecution decides to proceed to another trial, the accused may incur substantial additional legal costs.
Jury disagreement is expressly included in section 22. This is one of the clearest situations in which the Fund may apply. It does not mean every dollar spent on the first trial will be repaid. The Board must still decide which costs were thrown away, or partly thrown away, because a new trial was required.
2. A jury is discharged and the trial is stopped for another reason
Trials sometimes end because a juror has been exposed to prejudicial information, a juror says or does something that compromises the fairness of the trial, inadmissible material reaches the jury, or another event means the trial can no longer fairly continue.
These situations are not all treated automatically in the same way as a hung jury. A claim may instead depend on the part of section 22 dealing with a hearing that is discontinued and a new trial ordered for a reason not attributable to the accused or the accused's legal representatives.
In that situation, the presiding judge must grant a certificate stating:
- why the trial was discontinued and a new trial ordered; and
- that the reason was not attributable in any way to the act, neglect or default of the accused or their legal representatives.
This is why the Appeal Costs Fund should be considered as soon as a trial is discharged. If a certificate is required, it is far better for the issue to be raised with the trial judge while the circumstances are fresh and properly recorded.
3. The judge or magistrate becomes ill or dies
Section 22 also applies where proceedings are rendered abortive by the death or illness of the judge, magistrate or justice hearing the matter. If another trial is required and additional costs result, a claim may be available. This limb can apply to a summary hearing in the Magistrates Court as well as to a jury trial on indictment.
4. A conviction on indictment is successfully appealed and a new trial is ordered
The Fund may also apply where:
- a person was convicted on indictment;
- an appeal succeeds on a question of law or because there was a miscarriage of justice; and
- the Court of Appeal orders a new trial.
There is also provision for a successful subsequent appeal followed by an order for a new trial.
This part of the legislation is narrower than many people expect. A successful appeal does not automatically produce an entitlement. If a conviction is quashed and an acquittal is entered, rather than a new trial being ordered, the section 22 retrial provision does not apply.
Which Queensland courts does this apply to?
Jury trials on indictment are heard in the District Court and the Supreme Court. Our criminal lawyers appear in those courts across the state, including at Brisbane, Southport, Beenleigh, Ipswich, Maroochydore, Toowoomba, Bundaberg and Hervey Bay, as well as in the Court of Appeal in Brisbane.
The practical point is a local one. When a jury is discharged at Southport or Maroochydore, the judge, the transcript and the court file are all right there that day. Once the sittings end and the parties disperse, obtaining a certificate or a properly worded order becomes far harder. If your trial collapses, the certificate question should be raised before everyone leaves the courtroom.
Has your trial been aborted or your jury discharged? Call Clarity Law on 1300 952 255 for a same-day callback. We will tell you whether section 22 may apply to your matter and what needs to be obtained from the court now.
What if the jury reaches verdicts on some charges but not others?
A jury may return guilty or not guilty verdicts on some counts but be unable to agree on the remaining counts. The prosecution must then decide whether to retry the unresolved charges.
There may be a potential section 22 claim for costs thrown away, or partly thrown away, in relation to the charges that must be tried again. However, separating the costs of the concluded charges from the unresolved charges can be difficult. Some preparation may have related to all counts, some may remain useful at the retrial, and some may have been wasted completely.
The result will depend on the precise history of the trial and the way the legal costs are itemised and supported.
What costs can be claimed from the Appeal Costs Fund?
The Act refers to additional costs paid, ordered to be paid, or paid on a person's behalf because of the new trial. The amount recoverable is the amount the Board considers was thrown away or partly thrown away.
Depending on the circumstances, a claim may include qualifying portions of:
- solicitor's fees for preparation that has to be repeated;
- counsel's fees associated with the aborted trial;
- trial-day fees;
- expert or evidentiary expenses that have been wasted;
- costs created by the need to prepare for and conduct a retrial; and
- appeal-related costs where a successful appeal results in a new trial and section 22 applies.
The distinction between costs incurred and costs thrown away is critical. Work that remains fully useful for the retrial may not have been thrown away. Work that must be redone may be partly thrown away. An expense that served no continuing purpose after the trial was aborted may be wholly thrown away.
The Board, not the accused or their lawyer, ultimately determines the amount payable.
Will the Fund pay all of my legal bill?
You should not assume so.
The Fund does not generally reimburse the normal cost of defending a criminal charge. It focuses on qualifying additional or wasted costs caused by the failed trial or retrial. The Board may allow some items, allow only part of an item, or reject items that were not reasonably incurred or were not truly thrown away.
The current Appeal Costs Fund Regulation 2024 imposes a $15,000 maximum on several specified categories of payment, but it does not prescribe that $15,000 maximum for a claim under section 22. That does not mean a section 22 applicant automatically recovers the whole bill. The amount remains limited to the costs the Board considers were thrown away or partly thrown away within the section.
Does the Fund pay my lawyers directly while the case is continuing?
Ordinarily, no. The Fund should be approached as a possible later reimbursement, not as a source of up-front trial funding.
Your costs agreement with your solicitor continues to apply. You remain responsible for paying your solicitor and barrister in accordance with that agreement, unless a different arrangement has been made. You should not delay payment on the assumption that the Fund will approve a future claim.
The Queensland Government's current application guidance says not to use the service while the criminal proceeding remains active and on foot. The application material also requires detailed costs documents and evidence of payments. In practice, this generally means the claim is prepared after the criminal proceedings have been finally dealt with and the qualifying costs can be properly identified.
An amount approved by the Board may, if the Board thinks fit, be paid to the applicant's solicitor.
Is a certificate always required?
No. The statutory pathway matters.
A certificate from the presiding judge is specifically required where the hearing is discontinued and a new trial ordered under section 22(2)(d). It must record the reason and confirm that it was not attributable to the accused or their lawyers.
Other circumstances, including jury disagreement and the successful appeal-and-retrial categories in section 22, are expressed differently in the Act. The application must still include orders, transcripts or other records establishing that the relevant statutory circumstance occurred.
Because the distinction can affect whether a claim succeeds, your lawyer should identify the applicable pathway when the trial ends — not months later when documents may be harder to obtain.
When should the application be made?
An application must generally be made to the Appeal Costs Board within one year after:
- the indemnity certificate is granted; or
- if no indemnity certificate is required, the day the entitlement arises.
The Board has power to accept a late application where it considers that reasonable, having regard to matters including the length of and reasons for the delay and the likely consequences if the application is not accepted. It is much safer not to depend on that discretion.
The Queensland Government advises that an application should not be made while the proceeding remains active. This does not make the one-year period unimportant. The correct commencement date should be identified and recorded as soon as the possible entitlement arises.
What documents will be needed?
A section 22 claim is made using Form 9. Under the Regulation and the Government's current guidance, the supporting material will ordinarily include:
- the relevant court order, transcript or certificate showing why the trial ended and that a new trial was ordered;
- an itemised bill setting out all relevant costs and identifying which items were wholly or partly thrown away;
- the solicitor's costs agreement;
- counsel's costs disclosure;
- receipts or other proof of payment;
- any order requiring payment of additional retrial costs; and
- an affidavit or statutory declaration explaining the circumstances and any other facts relied upon.
The application itself is free. The Government currently states that the Board meets approximately every six to eight weeks and that a complete standard application generally takes eight to ten weeks to process. Urgent processing is not available. The official Appeal Costs Fund application page and Form 9 should be checked when a claim is prepared.
What the Appeal Costs Fund does not do
The Appeal Costs Fund is not:
- a general order that the prosecution pay an accused's costs;
- compensation merely because a person was charged or acquitted;
- a guarantee that all costs of an aborted trial will be repaid;
- automatic funding for an appeal or retrial;
- a substitute for complying with a solicitor's costs agreement; or
- a damages scheme for the stress, delay or disruption caused by another trial.
The Act also prevents payment to Legal Aid Queensland or a Legal Aid service provider for a proceeding in which assistance was provided under the Legal Aid Queensland Act 1997.
What should I do if my trial is aborted?
If your jury is discharged or your trial is otherwise stopped, ask your lawyer to consider the Appeal Costs Fund immediately. The practical steps may include:
- identifying why the trial ended and whether a new trial has been ordered;
- determining which part of section 22 may apply;
- asking the trial judge for the required certificate, if the applicable pathway requires one;
- obtaining the relevant order and transcript;
- keeping all solicitor, barrister and expert invoices and proof of payment;
- recording the one-year application deadline; and
- separately identifying work that was wasted, work that remains useful, and extra work caused by the retrial.
Good records make a substantial difference. A general invoice for "trial work" gives the Board much less assistance than an itemised account showing what was done, why it was required, and whether that work must now be repeated.
Frequently asked questions
My jury was hung — do I have to pay for the whole trial again?
You remain liable to your lawyers under your costs agreement for the second trial. Separately, a section 22 application to the Appeal Costs Board may reimburse the costs the Board considers were thrown away because the first trial had to be repeated. The two things are not the same, and the second does not cancel the first.
Does the prosecution have to pay my costs if the trial collapses?
No. A collapsed trial does not create a costs order against the prosecution. The Appeal Costs Fund exists precisely because that gap would otherwise leave the accused carrying the cost of a failure that was not their fault.
Can I claim if I was acquitted at the second trial?
The relevant question is whether one of the section 22 circumstances occurred and a new trial followed — not what the eventual verdict was. An acquittal at the retrial does not by itself create an entitlement, and it does not by itself defeat one.
How long does an Appeal Costs Fund application take?
The Board meets roughly every six to eight weeks, and the Queensland Government indicates a complete standard application generally takes about eight to ten weeks to process. There is no urgent or expedited pathway.
What if I was on Legal Aid?
The Act prevents payment out of the Fund to Legal Aid Queensland or a Legal Aid service provider for a proceeding in which assistance was granted under the Legal Aid Queensland Act 1997.
Do I need a lawyer to make the application?
You can apply yourself, but the application turns on identifying the correct limb of section 22 and itemising which costs were genuinely thrown away. Those are the two things the Board scrutinises most closely, and both are much easier to get right with the lawyer who ran the trial.
Speak to a Queensland criminal lawyer before your trial
The Appeal Costs Fund is a useful protection, but only in defined circumstances. If you are facing a jury trial in Brisbane or elsewhere in Queensland, your immediate focus should remain on preparing the strongest possible defence. It is nevertheless sensible for your lawyers to understand the Fund before the trial begins, so that the correct certificate, transcript and costs records can be secured if something unexpected happens.
Clarity Law represents clients in criminal trials throughout Queensland, from the Gold Coast to Hervey Bay. If a trial has been aborted, a jury has been unable to agree, or a successful appeal has resulted in a retrial, we can advise whether section 22 may apply and assist with the documents needed for an application. We act on fixed fees, so you know what the retrial will cost you before it starts.
Call 1300 952 255 to speak with our criminal law team, seven days a week.
This article provides general information only and is not legal advice. The law and administrative requirements may change. The position should be checked against the legislation and official application requirements applying to your matter.
