Who pays when NSW Police withdraw charges?

A Common Scenario

On the day of the hearing, NSW Police withdrew the charges before the hearing started. Your lawyer had spent days preparing for the hearing, conferencing with witnesses, and had allocated a full day to representing you at the hearing. You are likely to be facing a bill for thousands of dollars. If we were dealing with a civil matter, you would be entitled to get a costs order in your favour, which would cover your reasonable professional costs.

In NSW, the government has limited the availability of professional costs orders in criminal proceedings. In the scenario described above, an application for costs can only be made if,

1. The investigation into the alleged offence was conducted in an unreasonable or improper manner, and/or
2. The charges were laid without reasonable cause or in bad faith, and/or
3. The proceedings were conducted in an improper manner, and/or
4. The prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter which would have suggested the accused person might not be guilty or that the proceedings should not have been brought, and/or
5. There were exceptional circumstances relating to the prosecutor’s conduct of the proceedings; it is just and reasonable to award costs.

Refer to section 214 of the Criminal Procedure Act 1986.

Case Study - What are your chances?

In my experience, Local Court Judges (formerly Magistrates) are often reluctant to grant costs orders against the NSW Police.

A couple of years ago, my client was charged with assault occasioning actual bodily harm for an allegation that he assaulted his partner. The allegations were always denied by my client and his partner, the alleged victim. The only evidence police had to support their allegation was of an argument overheard by neighbours and an unrelated injury to his partner.  

NSW Police never had evidence capable of proving the charge. Well before the day set for the hearing, representations were sent requesting the withdrawal of the charge. NSW Police refused the request. Predictably, on the day of the hearing, NSW Police withdrew the charge.

The court refused the application for costs despite it meeting all the criteria in section 214 and the strong arguments supporting its reasonableness.

Conclusion

Why should people have to bear the costs of false allegations, deficient police investigations and poorly conducted prosecutions? It is unfair and unreasonable, but this is what the NSW Government has decided.

Successfully defending a charge or charges does not guarantee the opportunity for you to recover your professional costs.