401. Costs in Magistrates' Court

401. Costs in Magistrates' Court

(1) Unless otherwise expressly provided by this or any other Act or by the rules of court, the costs of, and incidental to, all criminal proceedings in the Magistrates' 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.

(2) In exercising its discretion under subsection (1) in a criminal proceeding, the Magistrates' 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.

(3) If the Magistrates' Court strikes out a charge under section 14(3), the court may award costs against the informant.

(4) This section and section 410 apply to a purported proceeding in the Magistrates' Court which is beyond the jurisdiction of the court as if the purported proceeding were within jurisdiction.

(5) If the Magistrates' Court determines to award costs against an informant who is a member of the police force, the order must be made against the Chief Commissioner of Police.

This section grants the Magistrates' Court a wide discretion to award costs in a criminal proceeding. (Criminal proceedings are initiated using the procedure described found at s 5.) However, the Court must still comply with the requirement under s 400 to give the subject of a proposed costs order a reasonable opportunity to be heard.

The leading authority on costs, the High Court's decision in Latoudis v Casey (1990) 170 CLR 534, holds that costs ordinarily follow a failed prosecution [Toohey J, at 14]. The purpose of costs is not to punish the prosecution, but to indemnify the accused from the expense of defending themselves against charges which have not been proved (McHugh J at 3, though see also the dissenting judment of Dawson J on this point].

The costs awarded must be just and reasonable: Norton v Morphett (1995) 83 A Crim R 90.

Though Latoudis v Casey spoke against a presumption of costs as occurs in the civil jurisdiction, courts increasingly look to indemnify a successful defendant. What constitutes a successful defendant will depend upon the individual circumstances of the case: Do v Bowers (Unreported, Supreme Court of Victoria, O'Bryan J, 10 October 1996). In Costa v Parks [2008] VSC 47, Habersberger J extended this definition to include the raising of unsuccessful jurisdictional argument that unnecessarily delayed proceedings, though the charges eventually failed.

The prosecution may be entitled to costs. In Balshaw v CPS [2009] EWCA Crim 470 the UK Court of Appeal upheld a costs order for the preparation of a report by forensic accountants. Costs might be distinguishable between between costs of investigation, which may be recompensable, and those of prosecution.

Note also the provisions of s 410, which empowers a court to make specific orders about the fees charged by practitioners to their clients.