So you've been charged with a criminal offence in Queensland, pleaded not guilty and gone to trial and have been victorious or the police drop the charges before the trial. Can you now ask the government to pay your legal costs of defending those charges?
As is often the case the question is harder to answer then you would think. Under Queensland criminal law defendants are only entitled to have their legal cost paid in certain circumstances and only to a set limit.
What is the basis for awarding costs to the defendant?
In the magistrates court there is a section of the Justices Act that states;
When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.
This would seem to be fair, if you win at trial then you should have your costs paid by the government who bought the charges against you unfairly. However the government was concerned about the amount of money they would have to pay so they modified the law further to say that in deciding whether to award costs the magistrate must look at a number of factors including;
- whether the proceeding was brought and continued in good faith; and
- whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and
- whether the investigation into the offence was conducted in an appropriate way; and
- whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and
- whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and
- whether the defendant unreasonably declined an opportunity before a charge was laid to explain the defendant’s version of the events; or to produce evidence likely to exonerate the defendant;
- whether there was a failure to comply with a direction given under section 83A; and
- whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and
- whether the defendant was acquitted on a charge, but convicted on another.
This is quite an exhaustive list and is designed to really only allow costs to be paid where police should never have bought the charges in the first place.
The recent case of Wells v Commissioner of Police Illustrates how difficult it is to get costs from the government and how many things the court has to look at when they decide whether you should get costs or not for being successful at a criminal trial.
Wells v Commissioner of Police
This case involved a defendant with a surname of Wells. Wells was charged with breaching a domestic violence order. The basic facts were Wells’ previous partner stated while she's working on roadworks on the highway she heard someone yell particularly disgusting obscenities at her but could not see who made the comment as they were in a Landcruiser with Victorian plates but she said that she recognised the voice as her former partner’s (Wells).
When the police spoke to Wells he stated that it was impossible that he could have been there but ultimately did not participate in a formal interview with police and was arrested. At that time the police were telling Wells that they had a statement from a witness saying it was him when in fact they did not have a statement for several weeks after.
A key piece of evidence was the allegation that Wells was driving a particular white Landcruiser with Victorian plates Wells was at the time of the alleged offence. Wells’s lawyers wrote to the prosecutor before the trial indicating that Wells was at the time of the offence was working at a location far away from where the alleged offence occurred and that he had no access to a Landcruiser with Victorian plates and the police should search the Victorian Department of Transport to see who owned such a vehicle in Queensland.
Ultimately on the eve of a trial the police dropped all charges and it was up to the magistrate to decide whether Wells should get legal costs paid. Ultimately they decided that Wells should not get cost paid as he did not participate in a formal interview where he could have explained he was far away from the offence and had no access to a Toyota Land Cruiser with Victoria plates.
Wells then appealed the decision to the district court in Cairns who ultimately decided Wells should get legal costs.
The district court went through all factors that are required to look at when someone wants to get their legal cost paid in a criminal trial and ultimately decided that the investigation and prosecution were inadequate and the police investigation had flaws from the beginning. The appeal judge decided they should have investigated Mr Wells' access to the vehicle in question and his decision not to participate in a formal record of interview was not unreasonable (see our article on the right to silence) . The judge said in regards to the decision not to participate in a formal interview of record that:
On the contrary, on my reckoning, the appellant took the earliest opportunity to explain his position to the best of his ability, considering the interview was unfair, inappropriate, and provocative. Given the circumstances, the appellant could not reasonably be expected to calmly and meticulously analyse the allegations to provide a more temporally exacting and comprehensive alibi. Instead, he did his best in that moment to explain, before any charges were laid, that the alleged conduct was impossible as he had no contact or interaction with the complainant, rendering the complaint baseless and motivated by ill will.
The judge then awarded Mr Wells legal costs.
So the system works & as long as I can prove I should get my costs paid so its all good?
In a word no. When the Government changed the legislation they not only made it harder to be able to get legal costs paid they did something that's even worse and limited the legal costs that can be paid to a certain scale. That scale is now so horrendous out of date that Wells was only able to recover just over $2,000 for his costs. We don't know how much his lawyers charged but there seems little doubt at that best he was awarded perhaps 20% of the legal costs he would have incurred.
This is the worst part you may be charged with a criminal offence, be innocent, need to engage a lawyer who does a good job and ultimately the police withdraw the charges or you are found not guilty and the amount of costs that can be awarded be barely over $2,000.
It should be noted there are different rules apply to criminal trials in the district and supreme court and we are just talking here about magistrate court trials or summary trials.
So what’s the conclusion?
The takeaway from this legislation and the case of Wells really is it is extremely difficult to get costs awarded unless the investigation by the police was unreasonable and further even if the investigation was unreasonable the amount of costs that is going to be awarded will not cover the total amount of legal costs that you have to pay.
