Costs in criminal cases in NSW.

When can an accused recover costs?

Under section 213, a court that dismisses a summary matter, or before which the matter is withdrawn, can order the prosecutor to pay the accused's professional costs. The order is discretionary. It is available where the charge is dismissed, where it is withdrawn, or where the proceedings are for some reason invalid.

Costs are about the accused's legal expenses, the professional costs of running the defence. They are not damages, and they do not follow automatically from a win. The court decides whether an order is just in the circumstances.

The limit where a public prosecutor brought the charge

Section 214 is the important limit. Where the prosecutor was acting in a public capacity, such as police or the Director of Public Prosecutions, costs can be ordered against them only in defined circumstances. These include where the investigation was conducted unreasonably or improperly, where the proceedings were begun without reasonable cause or in bad faith, or where the prosecutor unreasonably failed to investigate a matter that suggested the accused was not guilty.

This limit reflects a policy that public prosecutors should be able to bring proper cases without the risk of a costs order every time a matter fails. The accused has to bring their case within one of the section 214 gateways to recover costs against police or the DPP.

Private prosecutions are different

The section 214 limit applies to prosecutors acting in a public capacity. It does not apply in the same way to a private prosecutor. Where a private individual or body brought the charge, the ordinary discretion under section 213 applies without the same constraints.

That difference matters when deciding whether a costs application is worth bringing. The identity of the prosecutor shapes the test the court will apply.

How is a costs application run?

A costs application is usually made at the point the matter is dismissed or withdrawn, while the court is still seized of the case. The applicant identifies the basis, and where a public prosecutor is involved, points to the section 214 ground relied on, supported by the material.

The amount is the professional costs reasonably incurred. Records of the work done and the fees charged support the claim. A clear, well-documented application, made at the right time, is what carries a costs order.

What about the higher courts?

Costs in indictable matters dealt with in the District or Supreme Court are governed by different rules, and recovery is less common and more limited. There is also a separate scheme for a certificate under the costs in criminal cases legislation, which can allow some recovery where an accused is acquitted in defined circumstances.

The practical point is that recovering costs after a criminal matter is possible but not automatic, and the rules differ by court and by who prosecuted. Advice on the prospects, before the matter finishes, lets the application be made at the right moment. Our note on the first thirty days explains how a defence is built from the start.

Frequently asked.

Can I get my legal costs back if I win?

Sometimes. In the Local Court, under section 213 of the Criminal Procedure Act 1986 (NSW), a court can order the prosecutor to pay an acquitted or discharged accused's professional costs. It is discretionary and not automatic.

Can I recover costs against the police?

Only in limited circumstances. Where the prosecutor acted in a public capacity, section 214 allows costs only where, for example, the investigation was unreasonable or improper, or the proceedings were brought without reasonable cause or in bad faith.

What costs can be recovered?

Professional costs, meaning the legal costs of running the defence, reasonably incurred. Costs are not damages and do not follow automatically from an acquittal or dismissal.

When should a costs application be made?

Usually at the time the matter is dismissed or withdrawn, while the court still has the case before it. Making the application at the right moment, with supporting records, is important.

Are costs the same in the District Court?

No. Costs in indictable matters are governed by different rules and are harder to recover. There is also a separate certificate scheme that can allow some recovery on acquittal in defined circumstances.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 3 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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