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“Costs in Criminal Proceedings”: a new chapter for Quick on Costs

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Anecdotally thirty percent of the workload of the High Court and on the same anecdotal basis sixty percent of the work of a state Supreme Court consists of varying kinds of crime.

The new chapter “Costs in Criminal Proceedings” in Quick on Costs by author Roger Quick seeks to explain the practices as to costs in criminal work, on which there is a dearth in professional and academic writing.

The practices are not easy to explain and understand for at least these reasons:
1.    changing practices are sometimes mired in potentially irrelevant history;
2.    currently, criminal work encompasses increasingly greater varieties of work of varying degrees of complexity;
3.    the practices usually relate to varying statutory provisions which have to be set out expressly not just for each state and territory but also for the courts in the hierarchy of courts in each state or territory: and 
4.    the sources of guidance as to costs are often either decided cases on such varying applicable statutory provisions or ‘bench books’. As their name might suggest, ‘bench books’ are primers or manuals intended for the education and guidance of judges; or in inferior courts, judicial officers in their work such as criminal proceedings. 

Similarly, the technique of listing decided cases or statutory provisions has continued to be used but in accordance with the technique suggested by John Bishop in the second edition of his book, Criminal Procedure, they have been listed in the order most recent first and earliest last. This should act as a filter to further research if a reader wishes to pursue this.

The new chapter “Costs in Criminal Proceedings” in Quick on Costs by author Roger Quick seeks to explain the practices as to costs in criminal work, on which there is a dearth in professional and academic writing.
We illustrate here the first of our comments by reference to the mediaeval origins of two familiar terms in modern criminal practice: bail and committal. 

Bail can be said to be the conditional liberty or release from custody granted to a person charged but presumed to be innocent until proved guilty. The liberty is conditional upon the person to whom it is granted guaranteeing that he or she will appear before the court to answer his or her bail. Bail can be self-bail or surety bail. Surety bail occurs where a third person guarantees the custody of the person bailed. The consequence of failure to appear will be that the person charged has committed a punishable criminal offence. 

Of committal, the pre-trial procedure in indictable offences, the origins would seem to have been in a system under statutes of 1554-1555 in the reign of Philip and Mary (1553-1558) which was linked with the workings of the grand jury, which was centuries older, and  certainly contemporaneous with Magna Carta.

At least initially in England, those carrying out a committal investigative process exercised the powers of a justice of the peace and upon an information examined both the accused and witnesses against the accused to obtain the evidence to put before a grand jury.

Gradually, the grand jury  was finally abolished in 1933 in the UK by the Administration of Justice (Miscellaneous Provisions) Act 1933 (the 1933 Act) that established a substitute for the grand jury process for the indictment of an accused. Because this procedure anchored committal proceedings in the UK process leading to trial and because this has not happened in the present Australian process to trial it is necessary to describe the UK substitute. Grand juries were not used in Australia after the adoption by Australia in 1850 of the 1848 Act and perhaps not before 1850. The procedure for indictment followed the use of ex officio criminal ‘informations’ discarded in the UK, though an etymological inaccuracy any indictment filed in the absence of committal for trial, whether there had been committal proceedings, could be and would be, described as an ex officio indictment, and committal for trial did not in Australia determine whether a person charged must be indicted.

Under the 1933 Act ordinarily if a person charged had been committed for trial then the proper officer of the crown court signed a bill preferred to him for signature and the bill then became an indictment and proceeded accordingly. Where, however, committal proceedings resulted in the discharge of the accused no indictment could be brought without fresh committal proceedings or the leave of a High Court judge.

The committal procedure was abolished on 28 May 2013. As a result, serious offences are sent straight to the Crown Court from a magistrates' court for a pre-trial hearing.

This chapter further deals with:

•    The Creation of Costs Agreements in Criminal Work
•    The Normal or General Rule
•    Exceptions to the General Rule
•    Prohibiting Legislation
•    Cost Orders in Bail Applications
•    Committal Proceedings
•    Legislation To Combat Domestic/Family Violence,

followed by a jurisdictional review of costs in criminal cases.


This service falls within the Court Practice & Procedure Practice Area on Westlaw that has many services designed to complement each other to provide the breadth of coverage of a single compendium but with the in-depth analysis that specific focus areas will allow. In addition, the Alert and the report series will also enable practitioners to keep up to date with pertinent caselaw. When taken in its entirety, the Court Practice & Procedure Practice Area will furnish subscribers with a full picture of Court Practice & Procedure in the respective jurisdictions without the necessary restrictions of single services. To subscribe to the Court Practice & Procedure Practice Area on Westlaw, contact Thomson Reuters.

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