The Official Prosecutions (Accused Costs) Act 1973 (WA) provides a mechanism for people who are ‘successful’ in defending a criminal charge in the Magistrates Court to recover at least some of their legal costs from the Police. This is in contrast to the situation where an accused successfully defends a criminal charge in the District Court or Supreme Court. In that scenario the Court has no power to order the State (or the Commonwealth) to pay the accused’s legal costs.

Either way charges

In a recent decision, Justice Pritchard considered the question of either way charges; that is charges that can be heard on indictment, but that can also be heard summarily in the Magistrates Court. 1See s 5 Criminal Code (WA). The case was Carcione v Robson [2017] WASC 165. In that case the accused was (in ordinary language) about as successful as one can hope to be in defending a criminal charge. The police dropped the charges; or, expressed in legalese, the Police offered no evidence in support of the charges and indicated that they wished to discontinue them, whereupon the Magistrates Court dismissed the charges for want of prosecution under s 25 Criminal Procedure Act 2004 (WA). The accused then made an application for costs. The Chief Magistrate refused to order costs. The accused appealed the refusal of the costs application.

Her Honour’s reasoning was extensive, but there is a helpful summary of her conclusions at [70] and [71]:

70 … an accused will be ‘not successful’ if the accused is charged with an ‘either way’ offence, and that charge is dismissed for want of prosecution, provided that at that point, the summary court has not already determined, on an application under s 5 of the Criminal Code, that the charge should be tried on indictment. (That will thus include a case where an application under s 5 of the Criminal Code has not been made in respect of the charge at all, and a case where an application under s 5 has been made, and refused.)

71 Section 4(2)(c)(ii) operates in relation to any indictable offence which has been dismissed for want of prosecution by a summary court, and which is not caught by s 4(2)(c)(i). It thus applies to charges for indictable offences to which s 5 of the Criminal Code does not apply, and to charges for ‘either way’ offences where those charges are dismissed for want of prosecution after the summary court has granted an application under s 5 of the Criminal Code and ordered that the charge should be tried on indictment. In either case, if the charge is dismissed before the summary court commits the accused for trial, the accused will be ‘not successful’ and thus not entitled to seek an order for costs.

It appears from this analysis that an accused can never recover costs on an either way charge. Not even if the charge is discontinued, say on the morning of trial, and long after the Magistrates Court has ruled that the charge be heard summarily. It should be noted that those were not the facts of this case, and the issue may not be free from doubt.

Justice Pritchard’s reasoning will be challenged in an unrelated appeal, Mohammadi v Bethune, after Justice Hall referred that matter directly to the Court of Appeal.

Edited on 24 June 2018:
The matter of Mohammadi v Bethune [2018] WASCA 98 has now been heard by the Court of Appeal. The Court of Appeal disagreed with the reasoning of Pritchard J in Carcione v Robson. A defendant can now recover costs if the charge is discontinued after a decision has been made that the charge be dealt with in the Magistrates Court: at [61].

References   [ + ]

1. See s 5 Criminal Code (WA).