Legal Costs in NSW Criminal Cases: Who Pays, When You Can Recover, and How to Prove It

If your criminal charge has been withdrawn, dismissed, or you have been acquitted at hearing or trial, one of the first questions you will ask is whether you can recover your legal costs. The answer depends on which legal pathway applies, what evidence you can produce, and whether the statutory grounds are satisfied. Costs in NSW criminal proceedings are not automatic, and winning your case alone is not enough. This article explains how costs work in New South Wales, the two principal mechanisms for recovery, and what National Criminal Lawyers does in practice to position clients for a successful costs outcome.

What Are Legal Costs in Criminal Proceedings?

In criminal proceedings, costs are not a punishment and they are not a windfall. They are a mechanism by which the court can repair some of the financial damage caused when a person is drawn into a prosecution that should not have been brought, or where a person is acquitted and the objective facts show it would not have been reasonable to prosecute had all relevant evidence been available.

Costs are available for professional legal costs of representation. They do not compensate you for time off work, stress, or any other collateral consequences of being charged. The court assesses costs on a just and reasonable basis having regard to the work actually done.

The two principal pathways for recovering legal costs in NSW criminal matters are:

• A costs order against the informant or prosecutor under section 214 of the Criminal Procedure Act 1986 (NSW)
• A costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW)

Understanding which pathway applies to your situation is the first step in determining whether a costs application is worth pursuing.

Pathway One: Costs Orders Under Section 214 of the Criminal Procedure Act

When Does Section 214 Apply?

Section 214 governs costs orders in summary proceedings. It applies where summary proceedings are dismissed or withdrawn. The court may order the prosecution to pay the accused’s professional costs, but only where one of the statutory grounds is established and it is just and reasonable to make the order.

The statutory grounds under section 214 include:

• The investigation was unreasonable or improper
• Proceedings were instituted without reasonable cause, or in bad faith, or conducted improperly
• The prosecutor unreasonably failed to investigate matters that ought to have been investigated and that suggested innocence
• Other exceptional circumstances exist such that it is just and reasonable to award costs

What the Courts Require

The case law consistently warns against applying a higher threshold than the statute requires. It is not necessary that the investigation fell grossly below optimum standards. No such expression appears in section 214, and courts have rejected that gloss on the plain statutory language.

One way of assessing whether proceedings were instituted without reasonable cause is to ask whether, on the facts apparent to the prosecution at the time of charging, there was no substantial prospect of success. Where success depends on resolving arguable points of law in the prosecution’s favour, that alone does not make proceedings unreasonable. But where, even on the prosecution’s own version of the facts, the proceedings must fail, it is appropriate to find that they lacked reasonable cause.

Courts also look beyond whether a prima facie case existed on paper. The prosecution has a duty to evaluate contradictory material and obvious weaknesses in its case. Where contradictory evidence exists, it is reasonable to expect the prosecutor to engage with that evidence before proceeding.

Courts have confirmed that the legitimate community interest in prosecuting serious crimes does not make an objectively weak case reasonable. Generalised public confidence arguments do not answer the objective reasonableness test under section 214.

Failures to Investigate

Section 214 also captures situations where the prosecution unreasonably failed to pursue obvious lines of inquiry. Common examples include:

• Failing to interview material eyewitnesses identified early in the investigation
• Failing to obtain CCTV footage despite it being available and relevant
• Failing to access phone records where communications were central to the alleged offending
• Proceeding on a circumstantial case without eliminating rational alternatives consistent with innocence

Where police were aware of independent witnesses who could have given direct evidence on a contested issue and failed to take statements from them, a section 214 order may follow even without proof of what those witnesses would have said.

In a circumstantial case, the failure to exclude rational alternatives consistent with innocence is particularly significant. Where guilt was not the only rational inference available from the facts, and those alternatives were never investigated, the unreasonable investigation ground is likely engaged.

Pathway Two: Costs Certificates Under Section 2 of the Costs in Criminal Cases Act

When Does Section 2 Apply?

A costs certificate under the Costs in Criminal Cases Act 1967 (NSW) is available where, after the commencement of a trial, a defendant is acquitted or discharged in relation to the offence, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken.

Unlike section 214, this pathway does not focus on punishing investigative failure. It asks a different hypothetical question: if the prosecution had possessed evidence of all relevant facts before proceedings were instituted, would it have been reasonable to prosecute?

What a Certificate Must Specify

A section 2 certificate must record that, in the opinion of the court, if the prosecution had before the proceedings were instituted been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and that any act or omission of the defendant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances.

The reasonableness of the prosecution is not judged by the DPP’s internal policy on prospects of conviction, nor by the committal test. It is an independent objective analysis under the statute, assessed with the benefit of everything that emerged at trial and any further facts admitted under section 3A.

Key Principles

Several principles guide courts in section 2 applications:

• The institution of proceedings is measured at the time of arrest or charge
• The onus rests on the applicant to show it would not have been reasonable to prosecute
• The court asks the hypothetical question using all relevant facts proved at trial or admitted afterwards
• The fact that evidence was word against word does not automatically defeat a certificate application, particularly where the principal Crown witness was demonstrated to be substantially lacking in credibility
• A grant of legal aid does not prevent an applicant from seeking a certificate, by operation of section 42 of the Legal Aid Commission Act 1979 (NSW)
• Community interest in prosecuting a particular type of offence cannot make an otherwise unreasonable prosecution reasonable

What Evidence Is Most Persuasive in Costs Applications?

Every costs application is fact specific. The law is settled but the outcome depends on what can be demonstrated. National Criminal Lawyers approaches the evidence in three stages.

Reconstructing the State of the Police Case at the Time of Charge

The starting point is to establish what the police had, and what they should have had, at the moment proceedings were instituted. Relevant material includes:

• The content of the brief of evidence as at the date of charge
• Records of investigative steps requested but not taken
• CCTV preservation requests and responses
• Communications seeking phone or medical records
• Custody management notes recording the physical condition of the accused
• Notices of alibi and whether they were followed up

In cases where an accused had visible injuries documented in custody management records but no injury to the complainant was noted in any police statement, that mismatch directly supports an argument that obvious contradictions were not investigated.

Identifying Independent Material Showing the Prosecution Case Was Objectively Weak

The second stage involves gathering material that demonstrates the prosecution theory was incomplete or weak at the time of charge. Where the prosecution’s own version of the facts, taken at its highest, could not meet the elements of the offence, this supports both section 214 and section 2 arguments.

Linking the Facts to the Statutory Test Using Appellate Authority

The third stage is to connect the factual record to the precise statutory language using established appellate authority. This gives the court a principled basis for making the order. Submissions that do this clearly, using the actual language courts have accepted, are more persuasive than submissions that rely on general fairness arguments.

Common Misunderstandings About Costs in Criminal Cases

An Acquittal Does Not Automatically Mean a Costs Order

Costs are not punitive and are not automatic. A defendant who is acquitted or whose charge is withdrawn must still establish one of the statutory grounds. Winning the case is a necessary but not sufficient condition.

A Prima Facie Case Does Not Make Prosecution Reasonable

Courts have repeatedly confirmed that the existence of a bare prima facie case is not the end of the inquiry. Where there is contradictory material that was obvious and unexplored, the prima facie case will not save the prosecution from a costs order.

Public Policy Does Not Override the Statute

The general community interest in prosecuting serious categories of crime does not make an objectively unreasonable prosecution reasonable under either section 214 or section 2. Courts have consistently rejected that argument.

Legal Aid Does Not Bar a Costs Certificate

The fact that a defendant’s proceedings were funded by a grant of legal aid does not prevent them from applying for a certificate under section 2 of the Costs in Criminal Cases Act.

Timing and Procedure

Under section 214, a costs application is made immediately after the proceedings are dismissed, withdrawn, or result in a stay, or at the conclusion of a hearing. The defence identifies the relevant statutory ground and tenders material supporting the application. The court hears from the prosecutor and then rules on whether the ground is made out and whether it is just and reasonable to order costs.

Under section 2 of the Costs in Criminal Cases Act, the application is made in the court where the acquittal or discharge occurred. If a certificate is granted, recovery is then processed through the Attorney General’s Department.

In both cases, an itemised schedule of attendances, drafting, conference time, and hearing time should be prepared to support the quantum sought, proportionate to the issues that were actually in dispute.

How National Criminal Lawyers Builds a Costs Application

National Criminal Lawyers separates the merits strategy from the costs strategy from the first conference. Where appropriate, written requests are made to the police to take specific investigative steps, and any refusal or failure to respond is documented. If the case is later withdrawn or dismissed, those preserved requests become direct evidence that the prosecutor unreasonably failed to investigate matters suggesting innocence.

Where a case proceeds to hearing or trial and ends in an acquittal, the focus shifts to the section 2 framework. A chronology is prepared identifying what the prosecution knew at the time of charge and what it should be taken to have known had all relevant facts been available. The court is then invited to apply the objective reasonableness test with precision, not the DPP’s internal policy on prospects.

Where a matter also involves an AVO that was dismissed or a domestic violence charge that was withdrawn alongside a criminal charge, costs arguments are prepared across each component. The merits defence and the costs strategy are aligned so that favourable outcomes on the substantive charges translate into recoverable professional costs where the statute allows.

Get Expert Advice on Recovering Your Legal Costs

If your charge was withdrawn, dismissed, or you were acquitted at hearing or trial in New South Wales, you should seek advice immediately about a costs application. The window for a section 214 application closes at the end of proceedings. The section 2 certificate pathway requires a carefully prepared application that integrates the full factual record and the applicable legal principles.

National Criminal Lawyers is a specialist criminal defence firm with offices across Western Sydney, including Parramatta, Blacktown, Liverpool, Bankstown, Penrith, and our head office in Bella Vista. Our senior criminal defence lawyers, headed by principal lawyer Michael Moussa, bring over 25 years of combined criminal law experience to every matter.

Do not miss the opportunity to recover your professional legal costs. Contact National Criminal Lawyers today on 1800 CRIM LAW for a free, confidential consultation. Our experienced team will review your matter, identify the best available ground, and prepare the application with the precision and authority that moves courts.