Criminal Law
Victoria Legal Aid snapshot – Appeal Costs – criminal proceedings
Snapshot: Appeal costs certificates – criminal proceedings
Appeal Costs Act 1998 Part 3
References to section numbers below are references to the Appeal Costs Act unless otherwise indicated.
Having an appeal costs certificate allows you to apply to the Appeal Costs Board to recover costs reasonably incurred as a result of a proceeding being appealed, adjourned or discontinued. The final decision about whether to pay the costs or not, is made by the Board (s.35; Van Phuc Diep v Appeal Costs Board [2003] VSC 386).
The Act refers to appeal costs certificates as indemnity certificates.
Principle
You should apply for an appeal costs certificate wherever possible.
Refusal to grant a certificate
There are no appeal rights against a decision to refuse to issue a certificate (s.37).
When can certificates be issued?
State matters only
The Act does not apply to state courts exercising federal jurisdiction.
Successful appeal against conviction (indictable offences) s.14
A certificate can be issued if the conviction is quashed or set aside, whether or not a new trial is ordered.
Crown or DPP appeal against sentence s.15
A respondent can apply for a certificate for their own costs of an appeal by the Crown or the DPP if they are brought under certain sections of the Criminal Procedure Act 2009 (s.15(1)(a)) and the Children, Youth and Families Act 2005 (s.15(10(b)).
Interlocutory appeals (ss.15A, 15B) and case stated proceedings (s.15C)
An accused can seek a certificate for costs incurred in:
· successful interlocutory appeals by the accused (s.15A)
· interlocutory appeals by the prosecution (s.15B)
· case stated proceedings (s.15C)
Where proceedings are adjourned (s.17) or discontinued (s.16)
The adjournment or discontinuance must not be attributable in any way to the act, neglect or fault of the party applying for the certificate or their legal practitioner (s.16(1)(b), s.17(1)(b)).
A court may order costs against a person or party rather than issue an indemnity certificate.
No costs are paid if proceedings are withdrawn or cases settle before the next hearing.
Adjourned proceedings
The court can only issue a certificate if it is inappropriate to make an order for costs against a party (s.17(2)). The application can include the day on which the adjournment is granted, and (if appropriate) the next day on which the court sits (s.17(1)).
Discontinued proceedings
An accused can seek a certificate where the proceeding is discontinued, (for example where the jury is discharged) and a new hearing or trial is ordered (s.16(1)(c)), or deemed to be ordered (s.16(4)).
Where the DPP applies for a continuation of prosecution of a person previously acquitted (s.17A)
The Court of Appeal may grant a certificate if it is in the interests of justice to do so (see s.17A(2)).
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMI Act)
The following are treated as criminal proceedings (s.18):
· appeals to the Court of Appeal against a finding under s.17(1)(c) or 38X(1)(c) CMI Act that the accused committed the offence
· appeals to the Court of Appeal under s.14A CMI Act (finding that an accused is unfit to stand trial) or s.24AA CMI Act (verdict of not guilty because of mental impairment)
· investigations under Part 2 CMI Act into the accused’s fitness to stand trial
· special hearings under Part 3 or Division 3 of Part 5A CMI Act.
Third Parties
Third parties cannot apply for a certificate.
What costs can be claimed?
There are maximum amounts that the Board can pay on each certificate (s.17(5)).
Fee Schedule 1A of the VLA Handbook for Lawyers sets out the fees payable by VLA where a certificate has been granted and which can be claimed from the Board. These fees are included on VLA’s precedent back sheets for criminal matters.
Witness expenses and interpreters fees can also be claimed but not loss of wages.
The costs of an appeal and new trial
The application for a certificate for appeal costs can include:
· the costs of the appeal
· if a new trial is ordered, any additional costs that the accused will pay, or will be ordered to pay, as a consequence of the order for a new trial.
Applying to the Board for the payment
The application forms and maximum fees payable by the Board are available on the Department of Justice and Regulation website: Legal Practitioners Application to the Appeal Costs Board.
Time limits apply
Applications must be made to the Board within 12 months of the final determination of the matter, or the certificate will expire. The Board can extend the time limit if it considers that it is in the interests of justice to do so (s.35D, 35E).
You must lodge the application as soon as possible after the hearing has occurred.
· s.17 certificate relating to an adjournment – the application is submitted after the subsequent hearing has taken place.
· s.16 certificate relating to the discontinuance of proceeding - application is submitted after the new trial has taken place.
Forms and supporting material required
There is a different application form for certificates under each section of the Act. Each form sets out additional information needed for that type of application.
All applications must include:
· a completed application form, submitted by the legal practitioner and signed by the applicant, or by the lawyer on their client’s behalf (s.42)
· a signed copy of the certificate or an authenticated order of the court (provided by the court)
· the appropriate accounts or Victoria Legal Aid fee forms for both the certificate date(s) and the re-hearing date.
Section 17 (adjournment) applications must also include
· the amount sought from the Board
· evidence of costs for both hearings (back sheets, fee slips, invoices, or VLA claim for lump sum fees).
Submit the application
By post: Appeal Costs Board
c/- Secretary, Jamie Moffat
24/121 Exhibition St
MELBOURNE VIC 3001
By email: .
The Board will consider the application and write to you with the outcome within about 3 months.
If you need help with the application
Contact VLA’s Legal Recovery Officer, Chris Carlson by email or phone: (03) 9606 5260
Contact the Appeal Costs Board on (03) 8684 0884.
Further information
· Judicial College of Victoria, Victorian Criminal Proceedings Manual: 18.4.6 Appeal Costs Act
· Appeals Costs Board website: http://www.justice.vic.gov.au/acb. See legal practitioner application instructions.
· Appeal Costs Act 1998 Part 3
Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Proceedings Manual
This snapshot is produced as anaid to VLA lawyers and is not a substitute for thorough, in-depth legal research