Costs in criminal cases: If I win my case, can I recover the money I paid to my lawyer?

In criminal cases, there are only two courts where an accused can be awarded their costs if they win their case. The first is the Magistrates Court, which is commonly referred to as the ‘costs jurisdiction’. This is a very unique court as ordinarily in criminal cases in the District and Supreme Courts, there are no costs awards. That is, even if you win your case, you won’t get back the often substantial amount of money that you paid your legal team to defend it. The amounts of costs that can be awarded depend on what is allowed under the scale rate: see below.

The second is the Supreme Court when hearing an appeal from the Magistrates Court. The court is empowered to make costs awards both in favour of an accused who wins an appeal, but also against an accused who loses an appeal. If an appeal is brought to the Court of Appeal against the Supreme Court’s decision in an appeal from the Magistrates Court, the Court of Appeal may also make costs awards against either party to the appeal. The costs are in accordance with the scales applicable to those courts.

Finally, in a case in the District or Supreme Court, despite the fact there are no costs awards, there remains the availability of the Suitors’ Fund, which arises from the Suitors’ Fund Act 1964. This act allows an accused in cases where costs are incurred through no fault of their own, such as inordinate delay or where a Judge becomes incapacitated, to apply for their costs to be paid back.

Costs awards in the Magistrates Court

There is a unique regime covering the availability of costs to an accused in a Magistrates Court case. It is set out in the Official Prosecutions (Accused’s costs) Act 1973 (WA)(‘the Act’). This is unlike the other courts as whether someone is ‘successful’ is clearly defined, and the amounts of costs that may be awarded are fairly strictly limited.

‘Successful accused’ entitled to costs

The first question when determining if you may be awarded costs is whether you have been ‘successful’ under the Act. An accused is successful if:

  • they are acquitted of the charge (other than on account of unsoundness of mind);
  • they are discharged from the charge under section 128(2) or (3) of the Criminal Procedure Act 2004, which is where an accused pleads that the offence charged is not an offence at all, or that they have previously been convicted or acquitted of the same offence;
  • the charge is dismissed for want of prosecution; or
  • their conviction of the charge is set aside.

If you are successful, you are generally entitled to your costs. This means the full amount of the costs you paid your lawyer, subject to the scale allowances (see below).

‘Partly successful’ accused may be awarded some costs 

An accused is ‘partly successful’ if:

  • they are convicted of a lesser offence than that with which they were charged; or
  • they are charged with several offences in the one prosecution notice and are successful in respect of one or some of them.

This situation usually arises where there is a plea deal and some charges are dropped in exchange for a guilty plea to others.

A partly successful accused may be awarded costs if they satisfy the court that they incurred additional costs because they were charged with an offence in respect of which they were successful. For instance, if the charge which was dropped involved different evidence or witnesses to the charge which the accused ultimately pleads guilty to, costs may be awarded for the time spent preparing for or dealing with that additional evidence at trial.

Exceptions in some cases even if ‘successful’

There are some exceptions to the general rule that a successful (or partly successful) accused is entitled to their costs. The court may decline to order costs where:

  • the court, having found the accused guilty (Eg of a lesser offence), disposes of the charge without recording a conviction;
  • an accused has done or caused to be done or omitted or caused to be omitted something (other than act or omission the subject of the charge) which was unreasonable in the circumstances and which contributed to the institution or continuation of the proceedings; or
  • an accused has done or caused to be done or has omitted or caused to be omitted something during the course of proceedings, or in the conduct of the defence or appeal, calculated to prolong the proceedings unnecessarily or cause unnecessary expense.

This is a discretionary judgment and often, if an accused has sought many adjournments for no good reason, a court will decline to order costs in respect of those appearances and the preparation work done for them.

‘Not successful’ accused

An accused is not successful if the charge is of an indictable offence that may also be dealt with summarily, and the charge is dismissed before a decision is made that the charge is to be tried on indictment; or dismissed before the summary court commits the accused to the superior court for trial or sentence on the charge.

An example of this is if charged with a serious assault occasioning bodily harm (‘AOBH’), before any decision is made about which court will hear the charge such as by listing it for trial in the Magistrates Court, or deciding to commit it to the District Court, the prosecution drop the charge. You would not be entitled to costs in that case.

Another example is if the court decided to deal with that same AOBH charge in the District Court, as it was too serious for the Magistrates Court, but the prosecution then drop the charge before committing it to the District Court for trial, such as at a disclosure/committal hearing. Again, you would not be entitled to costs in this case.

In the case of Mohammadi v Bethune the Supreme Court held that if an ‘either way’ charge (an indictable offence that can be dealt with summarily, such as AOBH) is determined in the Magistrates Court, after a decision is made to deal with it summarily, then costs can be awarded. So for example a trial of an assault public officer or AOBH offence, heard in the Magistrates Court, will result in a costs award if you are acquitted.

Amount of costs that may be awarded

The Act does not simply allow a court to order that that an accused be paid all of the costs that they have incurred. The amount of costs that may be awarded in the Magistrates Court is entirely discretionary. The legislation provides for the maximum amounts that may be awarded for certain legal costs incurred and provides limits to the amounts that may be paid for certain work. This is called the ‘scale of costs’.

For example, the legislation usually only allows for the costs of one adjournment appearance to be paid, at the maximum rate of $418 including GST. Many senior practitioners may charge more than this especially if working on an hourly rate, and most cases involve more than one adjournment. This has the effect it is unlikely you will ever get all of your costs back if you win in the Magistrates Court.

Similarly, in a case where full preparation has been done for trial, but the charge is dropped on the day of trial, the legislation only allows for ‘an amount which is reasonable in the circumstances’ to be paid for the trial preparation that has been done. This is a judgment call to be made by the Magistrate and reasonable minds may differ on the amount charged by a practitioner in a given case.

There is also a maximum amount that may be paid for a full day of trial in the Magistrates Court, as well as for each successive day. This may be less than the amount your lawyer has charged you.

In some complex cases however, the limits in the scale may be exceeded, but you would need to convince the court the case required work to be done in excess of the scale rate.

Ultimately, it is unlikely an accused will ever get all of their costs back even if they win in the Magistrates Court. This is because of the limits on costs that are set by the legislation.

I was awarded costs: when do I get them back?

If a costs award is made, the Magistrate who ordered the costs will issue your lawyer with a certificate confirming the amount of the costs award. This can take a month or more. After the certificate is provided, your lawyer needs to send it to the WA government finance department, requesting that it be paid by the government. This process can take another month or so. Eventually, the costs award will be paid to your lawyer. Your lawyer will then make arrangements to pay it to you, subject to your costs agreement and any outstanding amounts owed to your lawyer.


In the Magistrates Court, if you win your case by being acquitted or having the charge dropped, you are generally entitled to a costs award. This means some (or rarely, all) of your costs will be paid back to you. This is the only jurisdiction in which this occurs in criminal cases in Western Australia, other than in the Supreme Court on an appeal from a Magistrates decision.

There are no costs payable if you win in the District Court, Supreme Court, or Court of Appeal, other than in a case involving an appeal from a Magistrates decision.

The availability of a costs award may have a significant influence on whether you choose to defend a matter with a privately paid lawyer. If you require expert advice concerning a costs award in your case, don’t hesitate to contact James Jackson Criminal defence today.

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