Official Prosecutions (Defendants' Costs) Act 1973

Accused means a person charged with an offence in an official prosecution (section 4(1)). Importantly, the concept of ‘successful accused’ is tightly defined in section 4(2). An accused is successful if they are acquitted (other than on account of mental impairment), discharged under section 128(2) or (3) of the Criminal Procedure Act 2004, the charge is dismissed for want of prosecution, or a conviction is set aside on appeal. The exclusion of acquittal on account of mental impairment was added by the Criminal Law (Mental Impairment) Act 2023 section 412, effective 1 September 2024. An accused is also not successful if the charge relates to an indictable offence and is dismissed for want of prosecution before the summary court decides to try the charge on indictment or commits the accused for trial or sentence (section 4(2)(c)). This narrows the entitlement in the early stages of indictable matters. Partly successful accused are separately defined: one convicted of a lesser offence than charged, or acquitted of one or more charges in a single prosecution notice while convicted of others (section 4(2)(b)). A partly successful accused does not have an automatic entitlement; they must satisfy the court that they incurred additional costs by reason of being charged with the offences in respect of which they succeeded (section 7(1)). The court may then award those additional costs, but retains a discretion to consider the same disqualifying factors that apply to a fully successful accused (section 7(2), referring to section 6(a)-(c)). Costs are defined narrowly as expenses properly incurred by the accused in the official prosecution and due and payable (or paid) to another person or as court fees (section 4(1)). This excludes the accused’s own time, inconvenience, or lost income. The amount of costs (other than court fees) must be in accordance with the scale fixed by a legal costs determination under the Legal Profession Uniform Law Application Act 2022 section 133 (section 5(5)). The court cannot order more than scale unless the scale itself allows variation; the Act does not confer a general discretion to award indemnity costs. Public official is broadly defined: a Minister, person employed in the Public Service, police officer, person employed by a local government or any other statutory body, and any person acting as agent of or under the instructions of such a person or body (section 4(1)). This captures most state and local government prosecutors but leaves private citizens, corporations, and perhaps some regulatory bodies not falling within ‘statutory body’ outside the Act’s scope.

The primary beneficiaries are accused persons charged with offences in the Magistrates Court or Children’s Court by public officials. For those who are fully acquitted or have their convictions set aside on appeal, the Act creates a presumptive right to recover legal expenses and court fees, subject to the court’s power to revoke or reduce. This reduces the financial risk of defending a prosecution that should never have been brought or that fails on the evidence. It also affects accused persons who are partly successful: they may recover additional costs linked to the successful charges, but must prove causation and accept judicial discretion. The Act directly affects public officials who institute prosecutions. For state officials (Ministers, public servants, police), the financial consequence of an unsuccessful prosecution falls on the Consolidated Account , i.e., the taxpayer. For local government and statutory body prosecutors, the costs liability falls on the employing body and can be enforced as a civil debt. This creates a direct incentive for prosecutors to assess the strength of the case before charging, because a loss may carry a monetary price. The Act also affects the courts, which must now make costs orders routinely in successful cases rather than leaving costs to a residual discretion. The court can adjourn the costs question to chambers to receive evidence and submissions (section 8). Legal practitioners must advise clients that costs are available but are capped by the statutory scale, and that conduct during proceedings can disentitle the accused. For state treasury and local government finance departments, the Act creates a contingent liability that must be budgeted for. Compliance officers and accountants in local government need systems to process costs certificates and ensure payment, because failure to pay allows the accused to sue for the amount as a civil debt (section 9(b)).

The central right is that of a successful accused to costs (section 5(1)). This right is not absolute: the court may revoke or reduce it in three circumstances (section 6). First, if the court finds the accused guilty but disposes of the charge without recording a conviction (section 6(a)). This is anomalous because a finding of guilt ordinarily means the accused is not successful under section 4(2). The provision likely applies where the accused is ‘successful’ on some other basis, but the court has nonetheless made a finding of guilt on a related matter , or it may be a residual power to deny costs even where the technical definition of success is met. Second, if the accused did or caused something (other than the act or omission charged) that was unreasonable and contributed to the institution or continuation of the proceedings (section 6(b)). Third, if the accused did or caused something during the proceedings or defence that was calculated to prolong them unnecessarily or cause unnecessary expense (section 6(c)). These grounds impose an implicit duty on the accused not to abuse the process or engage in unreasonable conduct that inflates costs. For the partly successful accused, the right is discretionary: the court may order costs of the successful charges if the accused proves they incurred additional costs because of those charges (section 7(1)). The court can also consider the section 6 factors (section 7(2)). The court has a duty to fix the amount of costs in accordance with the statutory scale (section 5(5)). It cannot simply award a lump sum without reference to scale. The court may adjourn the costs question to chambers to hear evidence and submissions (section 8), which implies that the accused or prosecutor may need to adduce evidence of what costs were properly incurred. The accused has no right to costs if the charge is dismissed for want of prosecution before the summary court decides to try an indictable offence or commits the accused (section 4(2)(c)). That provision insulates prosecutors from costs liability in the early stages of indictable matters where the court has not yet resolved the mode of trial.

The Act does not create any criminal penalties or fines. Its enforcement mechanism is entirely civil and administrative. For costs ordered against a public official who is a Minister, public servant, police officer, or agent thereof, the Clerk or Registrar of the court must give the accused a certificate signed or sealed showing the amount (section 9(a)). On production of that certificate to the Treasurer, the accused shall be paid out of the Consolidated Account. The Act gives the Treasurer no discretion to refuse payment; it is mandatory. If the Treasurer fails to pay, the accused would need to enforce through administrative law remedies such as mandamus, though the Act itself provides no express mechanism. For local government or statutory body officials, the costs are ordered against the body itself and must be paid by it (section 9(b)). If the body does not pay voluntarily, the costs are recoverable as a civil debt, meaning the accused can sue in a court of competent jurisdiction to obtain judgment and enforce through ordinary debt recovery processes (e.g., warrant of seizure, garnishee). There is no provision for interest on unpaid costs, nor any penalty for late payment, aside from general civil debt remedies. The court’s power to revoke or reduce costs under section 6 is the only ‘penalty’ the accused faces, and it operates by forfeiting or reducing the entitlement. The Act does not give the court power to award costs against the accused in favour of the prosecutor. That is left to other legislation (e.g., the Criminal Procedure Act 2004 or the Magistrates Court Act 2004) where they apply, but section 3 of this Act provides that it overrides other laws to the extent they are less favourable to the accused. So a prosecutor cannot seek costs from an unsuccessful accused under this Act.

Section 3(1) provides that the Act applies notwithstanding any provision of any other Act or any rule of court practice. This gives it primacy as a specific regime for accused’s costs in official prosecutions. However, section 3(2) contains a ‘more favourable to the accused’ override: if another Act or rule would give the accused a better costs entitlement than this Act, that other provision prevails. This prevents this Act from being used to cap or reduce a right that would otherwise exist under a more generous statute. For example, if the Criminal Procedure Act 2004 gave a successful accused a broader right to costs (e.g., including indemnity costs), section 3(2) would preserve that. Conversely, if another Act would deny costs to a successful accused, this Act’s entitlement would override. The Act binds the Crown (section 3(3)), so state prosecutors cannot rely on Crown immunity to avoid costs. The Act specifically references the Legal Profession Uniform Law Application Act 2022 section 133 for the scale of costs (section 5(5)). This means the quantum of recoverable costs is tied to a uniform determination that applies across legal practitioners in WA. Changes to that determination automatically change the scale under this Act. The definition of ‘successful’ imports the Criminal Procedure Act 2004 section 128(2) and (3) concerning discharges. That Act governs the circumstances in which a court may discharge an accused without conviction. The definition also references The Criminal Code section 5 for indictable offences triable summarily. The 2023 amendment excluding mental impairment acquittals from success ties into the Criminal Law (Mental Impairment) Act 2023, which reformed the defence of mental impairment. The Act does not interact with uniform evidence legislation directly, but the costs regime may influence charging decisions and plea bargaining. It does not affect the law of evidence or procedure regarding the conduct of the trial itself.

The Act was originally enacted as the Official Prosecutions (Defendants’ Costs) Act 1973 (No. 46 of 1973) and commenced on 25 January 1974. It has been amended by numerous statutes. The short title was later changed to the current Official Prosecutions (Accused’s Costs) Act 1973 , a note indicates the change occurred but the amending Act is not expressly identified; the 2008 amendment to the long title (No. 2 of 2008, section 67) may have been the occasion. A significant early amendment was the Official Prosecutions (Defendants’ Costs) Act Amendment Act 1974 (No. 7 of 1974), which appears to have expanded the grounds on which a court could deny costs (the original section 6 may have been narrower). The Acts Amendment (Legal Practitioners Costs and Taxation) Act 1987 (No. 65 of 1987) deleted section 10 (now omitted). The Acts Amendment (Children’s Court) Act 1988 (No. 49 of 1988) updated references to include the Children’s Court. The Children’s Court of Western Australia Amendment Act (No. 2) 1991 (No. 15 of 1991) further amended section 6. The Sentencing (Consequential Provisions) Act 1995 (No. 78 of 1995) and Local Government (Consequential Amendments) Act 1996 (No. 14 of 1996) made machinery changes. The Acts Amendment (Legal Costs) Act 1997 (No. 29 of 1997) updated the reference to costs scales. Major consolidation occurred through the Courts Legislation Amendment and Repeal Act 2004 (No. 59 of 2004) and the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (No. 84 of 2004), which modernised terminology (e.g., replacing ‘defendant’ with ‘accused’, updating court names, and aligning with the new Criminal Procedure Act 2004). The Financial Legislation Amendment and Repeal Act 2006 (No. 77 of 2006) changed the payment source from the Consolidated Revenue Fund to the Consolidated Account. The Legal Profession Act 2008 (No. 21 of 2008) updated the scale reference, replaced by the Legal Profession Uniform Law Application Act 2022 (No. 9 of 2022) section 424 effective July 2022. The most recent substantive amendment was the Criminal Law (Mental Impairment) Act 2023 (No. 10 of 2023) section 412, which excluded from the definition of success an acquittal on account of mental impairment. That amendment comes into operation on 1 September 2024. The Act has been reprinted several times (1983, 1999, 2006) reflecting the compiled amendments.

The Act itself provides no list of decided cases. No judicial interpretations are cited within the text. However, the numerous amendments over five decades suggest that the Act has been the subject of litigation and policy refinement. The amendment to exclude mental impairment acquittals from the definition of success (2023) is the clearest signal that a gap or ambiguity was identified, possibly by a court holding that such acquittals did qualify as success, prompting legislative reversal. Similarly, the addition of discharge under the Criminal Procedure Act section 128 as a ground of success (likely in the 2004 amendments) may have been a response to case law. The definition of ‘public official’ has been tested; the inclusion of persons acting ‘purporting to act’ by virtue of office suggests that even an invalid appointment or ultra vires action may still count as an official prosecution, a point likely litigated. The concept of ‘unreasonable conduct’ by the accused under section 6(b) and (c) invites judicial elaboration. Courts must determine what conduct is ‘unreasonable’ in the circumstances and whether it ‘contributed to the institution or continuation of the proceedings’ or was ‘calculated to prolong’ them. This language is similar to costs discretion provisions in other jurisdictions and has likely generated case law. The phrase ‘calculated to prolong’ implies intentional or reckless conduct rather than mere negligence. The requirement in section 7 that a partly successful accused prove additional costs ‘by reason of’ being charged with the successful offences may also have been judicially considered. Because the Act overrides other Acts and rules, it has primacy, but its interaction with the Criminal Procedure Act 2004 and the Magistrates Court Act 2004 on costs discretion has probably been the subject of appellate decisions. Practitioners should search the Supreme Court of Western Australia (Court of Appeal and single judge) and the District Court (appeals from the Magistrates Court) for cases citing the Act. The compilation table shows no amendments that directly reverse a specific ruling, but the frequency of amendments suggests ongoing legislative attention to judicial interpretations.

Several traps await the unwary. First, the definition of ‘successful’ is not synonymous with acquittal. An acquittal on account of mental impairment is expressly excluded (section 4(2)(a)(i) as amended). An accused found not guilty by reason of mental impairment after 1 September 2024 will not be entitled to costs under this Act, even though they have been acquitted. They must rely on other legislation or the general law. Second, an accused whose charge of an indictable offence is dismissed for want of prosecution before the summary court decides mode of trial or commits the accused is expressly not successful (section 4(2)(c)). This means that a magistrate’s decision to dismiss early in the process may leave the accused with no recourse for costs, even if the prosecution was poorly founded. Third, costs are limited to the statutory scale fixed under the Legal Profession Uniform Law Application Act 2022. The scale may be significantly lower than the actual legal fees incurred, especially if the accused engaged senior counsel or incurred disbursements not covered by scale. The Act does not permit the court to award indemnity costs or go above scale (section 5(5)). Fourth, the court can deny or reduce costs even to a fully successful accused under section 6. The ‘unreasonable conduct’ ground (section 6(b)) is broad: anything the accused did or caused to be done (other than the offence conduct) that was unreasonable and contributed to the proceedings can forfeit costs. This could include refusing a reasonable offer of plea negotiation, failing to provide documents promptly, or even making aggressive submissions that the court considers unreasonable. Prolonging proceedings unnecessarily (section 6(c)) is another catch-all. Fifth, the partly successful accused bears the burden of proof to show additional costs (section 7(1)). If the legal fees are not itemised by charge, the court may find causation difficult to establish. Sixth, section 6(a) allows the court to revoke costs if it found the accused guilty but disposed without recording a conviction. This appears to apply only where the accused is nonetheless ‘successful’ in a technical sense , for instance, they may be acquitted of the principal charge but found guilty of a lesser offence that is dealt with without conviction. The interaction between this provision and the definition of partial success is unclear; practitioners should be alert to the risk that a favourable outcome on some charges may still result in denial of costs. Seventh, the payment mechanism for state prosecutions depends on a certificate from the Clerk or Registrar. If the court fails to issue the certificate, the accused has no clear remedy under this Act. The accused may need to return to court to seek an order compelling the issue of the certificate. Eighth, the Act does not apply to private prosecutions or to prosecutions by bodies corporate that are not ‘statutory bodies’. An accused prosecuted by, say, a private company or an individual will have no statutory right to costs even if acquitted; they must rely on the general discretion. Ninth, the Act binds the Crown but does not include the Commonwealth. A prosecution by a Commonwealth official (e.g., Australian Federal Police) in a WA summary court would be a prosecution by a public official, but the payment mechanism under section 9(a) refers to the Treasurer of Western Australia. It is unclear whether the WA Consolidated Account bears liability for Commonwealth prosecutions. The Act likely does not apply because the definition of ‘public official’ is limited to state and local government officials, but a Commonwealth police officer might be a ‘person employed in the Public Service of the State’ only if seconded; otherwise they fall outside.

For an accused who is acquitted or has a conviction set aside, the path to costs is procedural. The accused should ensure that the court is aware of the success and that a costs order is sought. There is no automatic order; the court must make an order under section 5(2), (3) or (4). The accused should be prepared to provide evidence of costs properly incurred: receipts, invoices from lawyers, paid court fees, expert witness fees, and any other payments to third parties. Solicitors’ invoices should be itemised to show they are within the statutory scale. If the costs exceed the scale, the excess is irrecoverable. If the accused is partly successful, they must adduce evidence specifically linking the additional costs to the charges on which they succeeded. This may require a breakdown of fees by count or by stage of proceedings. Where the accused’s conduct might be questioned under section 6, their legal practitioner should be prepared to argue that any delay or conduct was reasonable and not calculated to prolong proceedings. The accused should avoid any behaviour during the proceedings that could be characterised as unreasonable or unnecessary; compliance with court directions and early disclosure of evidence can mitigate risk. For the prosecutor (the public official), the Act imposes an indirect compliance burden: the prospect of costs liability should inform decisions to charge and to continue proceedings. However, the Act does not require prosecutors to take any positive steps. The prosecuting body (local government, statutory body) should maintain a budget for potential cost awards and ensure that accounts payable can process a court certificate promptly. If the body is ordered to pay costs under section 9(b), it must pay voluntarily or face a civil debt action. It should not delay payment, as the Act provides no defence and interest may accrue under general law if the matter goes to judgment. The court (Clerk or Registrar) must issue a certificate for state prosecution costs under section 9(a) when the order is made. The certificate should clearly state the amount and identify the accused. The court should not refuse to issue the certificate because the Act makes it mandatory. The Treasurer must pay on production of the certificate; no further administrative approval is needed. For practitioners advising accused clients, the key compliance step is to preserve all cost records and to seek the order at the earliest appropriate time. Section 8 allows the court to adjourn the costs question to chambers, so parties should be ready to file affidavit evidence and written submissions. The statutory scale should be consulted before the hearing to ensure claimed amounts are within it. If the prosecutor disputes the entitlement (e.g., relying on section 6), there will be a contested hearing on costs. The burden is on the prosecutor to show grounds for revocation or reduction; the accused’s entitlement is presumptive. The compliance burden overall is modest: it is primarily a matter of record-keeping and timely application to the court.