Costs in Criminal Cases Act 1976
An Act to make provision for payment of costs in criminal cases to successful defendants; to amend the Justices Act 1959 ; and for matters incidental thereto
[Royal Assent 15 December 1976]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
1. Short title and commencement
(1) This Act may be cited as the Costs in Criminal Cases Act 1976 .(2) This Act shall commence on a date to be fixed by proclamation.
In this Act, unless the contrary intention appears –costs means expenses properly incurred by a defendant but does not include any expenses incurred by the State, Commonwealth, or any other body by way of legal aid to the defendant;defendant means any person charged with an offence;public officer means any person employed in any capacity in the public service of the State, and includes –(a) a police officer; and(b) a probation officer;State authority means any person or body of persons, whether incorporate or unincorporate, constituted, or established by or under any Act, or appointed by the Governor under the authority of any Act, to administer or control any department, business, or undertaking on behalf of the State.
This Act binds the Crown.
4. Costs of successful defendant
(1) Subject to this Act, where a person having been charged with an offence is discharged from the proceedings in respect thereof, that is to say, where –the court having the conduct of the proceedings may, upon the application of the defendant, order that he be paid in respect of his defence such costs as it thinks just and reasonable.(a) he is acquitted of the offence;(b) the complaint charging him with the offence is dismissed or withdrawn; or(c) he is discharged upon an indictment for the offence –(2) The court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular to the following:(a) Whether the proceedings were brought and continued in good faith;(b) Whether proper steps were taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings;(c) Whether the investigation into the offence was conducted in a reasonable and proper manner;(d) Whether the evidence as a whole would support a finding of guilt but the defendant is discharged from the proceedings on a technical point;(e) Whether the defendant is discharged from the proceedings because he established (either by the evidence of witnesses called by him or by cross examination of witnesses for the prosecution or otherwise) that he was not guilty.(3) No defendant shall be granted costs by reason only of the fact that he is acquitted of an offence, the complaint charging him with an offence is dismissed or withdrawn, or he is discharged upon an indictment.(4) No defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued.(5) No defendant shall be refused costs by reason only of the fact that in the investigation of the offence with which he had been charged he remained silent or refused to assist in respect thereof.
5. Costs of convicted defendant
[Section 5A Inserted by No. 17 of 1988, s. 3 ]Where a defendant is convicted but the court is of the opinion that the charge involved a difficult or important point of law and that in the special circumstances of the case it is proper that he should receive costs in respect of the arguing of that point of law, the court may order that he be paid such costs as it thinks just and reasonable.
(1) In determining the amount of costs to be granted in an order made under section 4 or 5 that is just and reasonable, the court may have regard to any scale of costs, fees, or expenses prescribed or agreed upon under any enactment.(2) Where, in an order made under section 4 or 5 , the court has regard to any scale of costs, fees, or expenses prescribed or agreed upon under any enactment, it shall specify in the order that scale.(3) The Registrar of the Supreme Court or the Clerk of the Petty Sessions, as the case may be, shall, if directed by the Court to do so, tax any costs granted by the court under this Act.(4) Any taxation of costs made pursuant to subsection (3) may be subject to review by the magistrate or judge presiding in the proceedings in respect of which the costs are granted.
[Section 6 Amended by No. 51 of 1985, Sched. 2 ][Section 6 Amended by No. 5 of 1990, Sched. 1 ](1) [Section 6 Subsection (1) amended by No. 17 of 1988, s. 4 ]Where any order is made under section 4 or section 5 , the court shall deliver or cause to be delivered a copy of the order –(a) in the case of any proceedings on indictment or where the complaint is made by public officer, to the Secretary of the Department;(b) where the complaint is made by or on behalf of a State authority, to that authority;(c) where the complaint is made by or on behalf of a municipal corporation, to that corporation; and(d) in any other case, to the complainant.(2) [Section 6 Subsection (2) amended by No. 17 of 1988, s. 4 ]An order referred to in subsection (1) is enforceable in a court of competent jurisdiction as a judgment of that court.
The amendments effected by this section have been incorporated into the authorised version of the Justices Act 1959 .(1) The Governor may make regulations for the purpose of this Act.(2) [Section 7 Subsection (2) omitted by No. 17 of 1988, s. 5 ]. . . . . . . .
9. Application of Act to acquittals, &c., on or after 1st July 1976
Where, before the commencement of this Act and on or after 1st July 1976, any person having been charged with an offence was discharged from the proceedings in respect thereof as mentioned in section 4 (1) , a court having a like jurisdiction as the court by which he was so discharged may, upon the application of that person, make such an order as to costs in respect of his defence as could have been made under this Act had it been in force when he was discharged from the proceedings.