Court may revoke or reduce accused’s entitlement to costs 4
Partly successful accused may be awarded costs 5
Question of costs may be adjourned to chambers 5
Payment of costs ordered 5
Notes
Compilation table 7
Other notes 8
Defined terms
Western Australia
Official Prosecutions (Accused’s Costs) Act 1973
An Act to amend the law relating to the payment of costs to accused persons in official prosecutions and for incidental purposes.
[Long title amended: No. 2 of 2008 s. 67.]
1. Short title
This Act may be cited as the Official Prosecutions (Accused’s Costs) Act 1973.
[Section 1 amended: No. 84 of 2004 s. 82.]
2. Commencement
This Act shall come into operation on a date to be fixed by proclamation.
3. Application
(1) Except as otherwise provided by this section, this Act applies notwithstanding the provisions of or under any other Act, or of or under any rule of court practice.
(2) To the extent of any inconsistency between a provision of this Act and a provision of or under any other Act, or of or under any rule of court practice, the provision which is more favourable to the accused prevails.
(3) This Act binds the Crown.
[Section 3 amended: No. 84 of 2004 s. 82.]
4. Interpretation
(1) In this Act unless the contrary intention appears —
accused means a person charged with an offence in an official prosecution;
appeal means an appeal against a decision of a summary court given in an official prosecution;
appeal court means a court hearing an appeal against a decision of a summary court given in an official prosecution;
costs means any expenses that —
(a) are properly incurred by an accused in an official prosecution; and
(b) are due and payable, or paid, by the accused to another person or as court fees;
court includes a summary court and an appeal court;
official prosecution means proceedings in a summary court against a person charged with an offence by a public official acting or purporting to act by virtue of his office, and includes proceedings on appeal therefrom;
public official means a Minister of the Crown, a person employed in the Public Service of the State, a member of the Police Force, or a person employed by a local government or any other statutory body and includes any person acting as agent of or under the instructions of such a person or body;
section means a section of this Act; and
summary court means the Magistrates Court or the Children’s Court.
(2) An accused —
(a) subject to paragraph (c), is successful if —
(i) he is acquitted of the charge, other than on account of mental impairment;
(ii) he is discharged from the charge under section 128(2) or (3) of the Criminal Procedure Act 2004;
(iii) the charge is dismissed for want of prosecution; or
(iv) his conviction of the charge is set aside;
(b) is partly successful if —
(i) he is convicted of a lesser offence than that with which he was charged; or
(ii) he is charged with several offences in the one prosecution notice and is successful in respect of one or some of them;
(c) is not successful if the charge is of an indictable offence and is dismissed for want of prosecution by the summary court —
(i) if section 5 of The Criminal Code applies to the charge — before the summary court decides under that section that the charge is to be tried on indictment; or
(ii) otherwise — before the summary court commits him for trial or sentence on the charge.
[Section 4 amended: No. 49 of 1988 s. 55; No. 14 of 1996 s. 4; No. 59 of 2004 s. 141; No. 84 of 2004 s. 56, 80, 82 and 86; No. 10 of 2023 s. 412.]
5. Successful accused entitled to costs
(1) Subject to this Act, a successful accused is entitled to his costs.
(2) Where an accused is successful by reason of a decision of the summary court only, the summary court shall make an order as to the amount of his costs therein but the accused is not entitled to those costs unless and until the time for appeal therefrom has expired or an appeal therefrom is resolved in his favour.
(3) Where an accused is successful by reason of a decision of the appeal court, the appeal court shall make an order as to the amount of his costs in the appeal court.
(4) Where an accused is successful by reason of the appeal court reversing a decision of the summary court, the appeal court shall make an order as to the amount of the costs in the appeal court and in the summary court.
(5) The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a legal costs determination made under the Legal Profession Uniform Law Application Act 2022 section 133.
[Section 5 amended: No. 29 of 1997 s. 4; No. 65 of 2003 s. 54; No. 84 of 2004 s. 82; No. 21 of 2008 s. 686; No. 9 of 2022 s. 424.]
6. Court may revoke or reduce accused’s entitlement to costs
The court may order that a successful accused is not entitled to his costs or part thereof if —
(a) the court, having found the accused guilty, disposes of the charge without recording a conviction;
(b) he has done or caused to be done or has omitted or caused to be omitted something (other than an act or omission the subject of the charge) which was unreasonable in the circumstances and which contributed to the institution or continuation of the proceedings; or
(c) he has done or caused to be done or has omitted or caused to be omitted something during the course of proceedings or in the conduct of the defence or appeal calculated to prolong the proceedings unnecessarily or cause unnecessary expense.
[Section 6 amended: No. 7 of 1974 s. 3; No. 49 of 1988 s. 56; No. 15 of 1991 s. 21; No. 78 of 1995 s. 96; No. 84 of 2004 s. 82.]
7. Partly successful accused may be awarded costs
(1) Subject to this Act, where a partly successful accused satisfies the court that he incurred additional costs by reason of being charged with an offence or offences in respect of which he was successful, the court may order that he is entitled to those costs.
(2) Before exercising the discretion conferred by subsection (1), the court may have regard to any of the circumstances referred to in paragraphs (a) to (c) inclusive of section 6 that exist in the case of the partly successful accused.
(3) Where the court makes an order pursuant to subsection (1), subsections (2) to (5) inclusive of section 5 apply to and in relation to the order with such modifications as are necessary.
[Section 7 amended: No. 84 of 2004 s. 82.]
8. Question of costs may be adjourned to chambers
The court may adjourn to chambers the question of costs, or the amount thereof, under this Act to enable the making of submissions and the tendering of evidence, including affidavit evidence, on that question.
9. Payment of costs ordered
Where costs are ordered under this Act —
(a) if the public official a party to the proceedings is a Minister of the Crown, a person employed in the Public Service of the State, a member of the Police Force, or any other person acting as agent of or under the instructions of such a person, the Clerk or Registrar, as the case requires, of the court shall give to the accused a certificate signed by the Clerk or sealed with the Seal of the court, as the case requires, showing the amount of the costs ordered and on production of the certificate to the Treasurer, the accused shall be paid such costs out of the Consolidated Account; or
(b) if the public official a party to the proceedings is a person employed by a local government or any other statutory body, or is any other person acting as agent of or under the instructions of such a person or body, the costs shall be ordered against that body and shall be paid by it to the accused, and shall be recoverable as a civil debt.
[Section 9 amended: No. 6 of 1993 s. 13; No. 14 of 1996 s. 4; No. 84 of 2004 s. 82; No. 77 of 2006 s. 4.]
[10. Deleted: No. 65 of 1987 s. 41.]
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Notes
This is a compilation of the Official Prosecutions (Accused’s Costs) Act 1973 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.
Compilation table
Short title
Number and year
Assent
Commencement
Official Prosecutions (Defendants’ Costs) Act 1973 1
46 of 1973
6 Nov 1973
25 Jan 1974 (see s. 2 and Gazette 25 Jan 1974 p. 179)
Official Prosecutions (Defendants’ Costs) Act Amendment Act 1974
7 of 1974
19 Sep 1974
8 Nov 1974 (see s. 2 and Gazette 8 Nov 1974 p. 4973)
Reprint of the Official Prosecutions (Defendants’ Costs) Act 1973 approved 23 May 1983 (includes amendments listed above)
Acts Amendment (Legal Practitioners Costs and Taxation) Act 1987 Pt. XIV
65 of 1987
1 Dec 1987
12 Feb 1988 (see s. 2(2) and Gazette 12 Feb 1988 p. 397)
Acts Amendment (Children’s Court) Act 1988 Pt. 8
49 of 1988
22 Dec 1988
1 Dec 1989 (see s. 2 and Gazette 24 Nov 1989 p. 4327)
Children’s Court of Western Australia Amendment Act (No. 2) 1991 s. 21
15 of 1991
21 Jun 1991
9 Aug 1991 (see s. 2(2) and Gazette 9 Aug 1991 p. 4101)
Financial Administration Legislation Amendment Act 1993 s. 13
6 of 1993
27 Aug 1993
1 Jul 1993 (see s. 2(1))
Sentencing (Consequential Provisions) Act 1995 Pt. 57
78 of 1995
16 Jan 1996
4 Nov 1996 (see s. 2 and Gazette 25 Oct 1996 p. 5632)
Local Government (Consequential Amendments) Act 1996 s. 4
14 of 1996
28 Jun 1996
1 Jul 1996 (see s. 2)
Acts Amendment (Legal Costs) Act 1997 Pt. 3
29 of 1997
26 Sep 1997
26 Sep 1997 (see s. 2)
Reprint of the Official Prosecutions (Defendants’ Costs) Act 1973 as at 19 Feb 1999 (includes amendments listed above)
Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 s. 54
65 of 2003
4 Dec 2003
1 Jan 2004 (see s. 2 and Gazette 30 Dec 2003 p. 5722)
Courts Legislation Amendment and Repeal Act 2004 s. 141
59 of 2004
23 Nov 2004
1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 Pt. 12, s. 80, 82 and 86
84 of 2004
16 Dec 2004
2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53))
Reprint 3: The Official Prosecutions (Accused’s Costs) Act 1973 as at 3 Feb 2006 (includes amendments listed above)
Financial Legislation Amendment and Repeal Act 2006 s. 4
77 of 2006
21 Dec 2006
1 Feb 2007 (see s. 2 and Gazette 19 Jan 2007 p. 137)
Criminal Law and Evidence Amendment Act 2008 s. 67
2 of 2008
12 Mar 2008
27 Apr 2008 (see s. 2 and Gazette 24 Apr 2008 p. 1559)
Legal Profession Act 2008 s. 686
21 of 2008
27 May 2008
1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 511)
Legal Profession Uniform Law Application Act 2022 s. 424
9 of 2022
14 Apr 2022
1 Jul 2022 (see s. 2(c) and SL 2022/113 cl. 2)
Criminal Law (Mental Impairment) Act 2023 s. 412
10 of 2023
13 Apr 2023
1 Sep 2024 (see s. 2(b) and SL 2024/175 cl. 2)
Other notes
1 Now known as the Official Prosecutions (Accused’s Costs) Act 1973; short title changed (see note under s. 1).
Defined terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
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