Legal Costs Can Be Ordered in Favour of Legally Aided Defendants, Court Confirms

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By Paul Gregoire and Ugur Nedim

A Supreme Court jury found the accused man, Simon Rodden, not guilty of a charge of murder on 22 July 2022, over an incident which was alleged to have occurred in June 2017.

The accused was granted legal aid in early 2020, with the terms of the grant requiring him to make a $75 contribution to his legal costs. Mr Rodden claims that prior to this, he had spent $5,000 on legal fees.

On acquittal, Rodden requested a costs certificate in line with section 2 of the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act), which, under section 4, allows an individual to claim costs incurred during proceedings, via Department of Communities and Justice director general approval.

In considering the application, Justice Des Fagan declined it, as an “entirely legally aided” defendant can’t request costs and, as pursuant with section 3, it would have been unreasonable for a hypothetical prosecutor knowing all the facts to have instituted such proceedings.

Justice Fagan, who at first had been unaware that Rodden had incurred any legal costs of his own, had presided over the murder trial. And an appeal of his Honour’s decision to deny costs to Rodden was heard in the NSW Court of Criminal Appeal (NSWCCA) on 9 August this year.

The laws regarding costs

The Legal Aid Commission Act 1979 (NSW) (LAC Act) governs legal aid in New South Wales.

The monetary grants it facilitates are not provided directly to litigants, but rather legal aid bodies and persons are given the fixed amounts of funding, and their clients receive legal services, which can be provided by law practices, the commission itself or public defenders.

In considering the appeal, the NSWCCA found that section 45 of the LAC Act outlines that a legally assisted person can recover costs incurred even if they didn’t pay them, whilst section 46 provides that the Legal Aid Commission can then recover the amount it incurred for services rendered.

Legal Aid NSW provided an affidavit stating that it’s long been able to recover finances outlaid in defending clients via costs certificates. And it further raised concerns that not only could the Rodden decision affect this process, but it may also hamper its ability to recoup funding in other areas.

In January 2020, Legal Aid NSW wrote to Rodden and his lawyer stating that his 13 December 2019 request had been granted. And he was to pay a $75 contribution, while his lawyer couldn’t request payment for any services after the request date, but anything prior was to be paid by Rodden.

The NSWCCA justices then considered the Costs Act, as section 2 provides that on acquittal or dismissal a defendant can be issued a certificate, but only, according to section 3, if the prosecution would not have instituted proceedings if it was in possession of all relevant facts to begin with.

Section 3 further stipulates that any act or omission made by the defendant must be reasonable in the circumstances, while section 4 provides that on receiving a certificate, the department can apply for an amount to be paid, or it can refuse the request if it finds the payment isn’t justified.

Fagan’s denial of costs

Justice Fagan received a 4 August 2022 costs certificate application stipulating that had the prosecutor known all the facts prior to proceedings it would not have been reasonable to proceed with the case, and that any act or omission made by Rodden had been reasonable.

Prior to receiving this, the justice had already outlined to both parties that the issuance of a certificate was “extremely doubtful”, as Rodden hadn’t outlaid any finances himself and that Legal Aid already recovers several million dollars each year in respect of services via such certificates.

The Supreme Court justice then commenced proceedings, continuing to mistakenly consider that Rodden had paid no legal costs and suggesting that the acquitted man, therefore, had no interest in pursuing the claim, but rather it was the Legal Aid Commission that had brought it in his name.

Justice Fagan further set out that Legal Aid was seeking public funds to cover the costs incurred in defending Rodden, even though public money paid the initial legal costs, which meant the certificate request saw the commission seeking a second payout of public finances for the same services.

His Honour added that the request would merely result in a churning of public funds between accounts and that the terms of section 4 were meant to apply to defendants who paid their own legal cost, not those incurred by Legal Aid NSW in representing a client.

A question of jurisdiction

NSWCCA Justices Andrew Bell, Mark Leeming and Robert Beech-Jones found that the function carried out by Justice Fagan in determining not to issue a certificate was not administrative but rather a judicial power, and that required an appeal to be heard in the criminal jurisdiction.

Another issue arising on appeal was whether, under section 5F of the Criminal Appeal Act 1912 (NSW), Fagan’s certificate ruling was an interlocutory order, meaning it was made provisionally in the course of a legal action, which the justices found was obviously in regard to the murder trial.

Rodden appealed the decision on three grounds: that to consider the Costs Act barred certificates to the legally aided was an error, that another occurred in the judge’s preconceived notion of any department ruling, and that it was wrong to consider it reasonable for the prosecution to proceed.

In terms of Justice Fagan’s ruling in relation to the Costs Act it was found in error, as rather than consider whether the certificate be granted on the terms set out in section 3, his Honour brought his preconceived notion of the laws not covering the legally aided to predominately bear on the ruling.

The NSWCCA further found that the primary judge, in making the assumption that the department secretary would not be open to fulfil the costs request on presentation of the certificate because Rodden was legally aided and his reading of the laws prevented it, was a “flawed assumption”.

And therefore, the NSWCCA justices stated that the first two grounds had been made out, however they underscored that the success of these grounds would not hold unless the third ground was upheld as well.

The final ground of contention

The third ground turned on whether it was not unreasonable for the prosecution to have instituted proceedings against Rodden, in terms of subsection 3(1)(a) of the Costs Act, which holds that if it had held all the relevant facts prior to proceedings, it would not have been reasonable to prosecute.

The trial involving six co-defendants resulted in four men being convicted of the murder of Clinton Starkey and a fifth on manslaughter. Rodden had driven Starkey to the Peats Ridge service station, where the incident occurred. And the prosecution had attempted to implicate him in the killing.

Facts established before trial were that Rodden had been present during altercations involving Starkey and one of his assailants, that he’d texted that same man to tip him off as to his being on the way to the service station with Starkey, and that he’d called ahead to ensure the station was open.

CCTV footage appeared to show Rodden stalling for time at the service station, as he awaited the arrival of two cars carrying the assailants, and that he watched as four men beat Starkey to the point that he died later in hospital.

And on the day after the assault, Rodden told police that “it was supposed to be a touch up but that was way more than a fucking touch up”.

The prosecution proceeded with the case against Rodden to prove that he was part of a joint criminal enterprise and further could be held responsible for the criminal acts. But a point of contention at trial was whether Rodden was aware of Beau McDonald’s participation in the attack.

However, Justice Fagan found that it was not necessary for Rodden to know every aspect of the attack to be complicit in it and, therefore, the prosecution would have proceeded against him had they been aware of all the previously unknown facts that came to light during proceedings.

The NSWCCA justices agreed with this determination of the primary judge and thus Rodden’s appeal was dismissed on 18 August.

The Department of Communities and Justice has outlined before the appeal of the Rodden decision that a practical effect of it was that “all Legal Aid NSW applications under the Costs in Criminal Cases Act 1967 (NSW)” had been “deferred pending the outcome of the appeal”.

And it can be presumed that now that the NSWCCA has found that the laws allow for a legally aided defendant to apply for a costs certificate is within the bounds of the law, that Legal Aid NSW applications under the Costs Act have resumed.

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