XN000022-1995-11-02 — Page 91

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To remove the different principles governing the award of costs to an acquitted defendant in the magistrates court and superior courts, Part II of the Bill provides that courts at all levels have a complete discretion on awarding costs to a successful defendant at trial or otherwise, and on appeal.

Clause 3 Subclause(2) provides that costs in the magistrates court should not exceed $15,000 unless they are to be assessed by an official of the court or have been agreed by the prosecution and the defence. The amount of $15,000 represents a substantial increase from $5,000, which was set in 1981.

Clause 6 gives courts at all levels a discretion to award costs in favour of a defendant where he is charged with multiple offences but is acquitted of one or more of them.

Clause 9(2)(b) empowers the Court of Appeal to award costs to a defendant where it substitutes on appeal a sentence substantially at variance with that passed by the court below. Although such costs may not have been occasioned through any fault of the prosecution, but rather because the trial judge imposed an inappropriate sentence, the defendant should not be left out of pocket when he has been obliged to appeal against a sentence which is held to be flawed.

Prosecution Costs

I turn now to that part of the Bill dealing with the prosecution costs. Part III of the Bill provides for costs to be ordered in favour of the prosecution in summary proceedings that's in (Clause 11), indictable proceedings (Clause 12), and where a judge or the Court of Appeal dismisses an unmeritorious appeal lodged by a defendant that's in (Clause 13).

I should make it clear that it will not automatically be the case that the prosecution will ask for or be awarded its costs where there is a conviction. Generally speaking, the prosecution will not seek costs in relation to any defendant or appellant who has a Legal Aid Certificate. However, in other cases where the prosecution is satisfied that the defendant or appellant is financially capable of paying costs, the prosecution may seek an order for costs. Of course, discretion must be used and if it is considered that there is no prospect of enforcing the order there is not much point in making any application for costs.