Rodden v R - A Discussion About Costs In Criminal Proceedings

The Wigs

It is sometimes said in the law that nothing generates hard work and legal ingenuity more than a costs application. This week the wigs examine a recent decision that was keenly awaited by the criminal law community in NSW. Rodden v R 2023 a decision of the nsw court of criminal appeal. Mr. Rodden was acquitted of murder and his lawyers sought a certificate under the costs in criminal cases act that would have allowed legal aid nsw, who funded his defence, to recover substantial costs incurred in the trial. The first instance judge refused the application, holding that the Act only allowed a certificate where the individual accused had personally incurred costs. This was contrary to the long standing understanding and functioning of the act and in tension with high court authority that states the legally aided status of an accused is generally disregarded in costs matters. The decision was appealed and the decision set aside with the court holding it was no bar to an application being granted that an applicant had not personally incurred the costs. As said, the judgment was keenly awaited. Legal Aid had at stake its institutional interest in recovering such costs certificates and many lawyers had at stake a direct financial interest, because legally aided lawyers recieve a significant uplift in fees in legally aided matters when they secure such a certificate. Unsurprisingly the case was a well argued matter and the judgment is an interesting journey through appellate jurisdiction in NSW and the policy issues at play in costs in criminal proceedings. Now, on with the show!

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