What is the Suitors’ Fund in New South Wales?

Being accused of a criminal offence can be a life-changing experience, one that can lead to reputational and career loss, great stress and anxiety, and in cases where the defence team is privately funded, enormous financial loss.

On top of all that, criminal prosecutions in the higher courts, such as the District or Supreme Court, can take years to reach a jury trial – a situation which has only been made worse by the COVID-19 pandemic.

Unlike various parts of the United States, Australia does not have a scheme which compensates those who are wrongly convicted, and commencing civil proceedings for financial redress on account of a malicious prosecution can be costly and time-consuming.

But what about when a trial in a higher court is vacated (cancelled), discontinued (stopped part way) or left unfinalised through no fault of the accused (also known as the defendant)?

In such cases, the Suitor’s Fund can in certain limited circumstances alleviate part of the financial costs.

What is the Suitors’ Fund in New South Wales? 

The Suitors’ Fund exists to mitigate costs incurred in legal proceedings  when there has been a clear failure on the part of the court system – for example, circumstances such as: 

• An aborted or discontinued trial because of the death or protracted illness of a Judge, Magistrate or Justice;
• An upheld appeal on a question of law against conviction on indictment where a new trial is ordered;
• An appeal against damages or an appeal against sentence heard by two judges is rendered unfinalised because the judges who heard the proceedings were divided in opinion and could not reach a unanimous decision determining the outcome of proceedings;
• A trial is discontinued by the presiding Judge, Magistrate or Justice and a new trial is ordered for a reason not attributable to:

1. disagreement on the part of the Jury; or
2. the act, neglect or default of all or of any one or more of the parties in civil proceedings; or
3. the act, neglect or default of the accused in criminal proceedings.

Maximum payouts 

Participants in cases upheld in the NSW Court of Appeal can apply for up to $10,000 and those who have had cases upheld in the High Court of Appeal can apply for $20,000. 

These are maximum amounts, and of course not all applicants receive the maximum payout. 

Indemnity certificates

The Presiding Judge can be asked to supply what’s called an indemnity certificate which can be used to make an application for payment from the Fund. The original sealed indemnity certificate or a certified copy must be produced before an application can be finalised.

Where a certificate is granted, and a subsequent appeal is commenced, no payment can be made from the Fund until such time as the subsequent appeal is finalised. 

In short, all court proceedings must be completed and no further appeals contemplated before a payment can be made from the Fund.  

Insufficient payments

Although an important was to obtain redress for inadequacies in the legal system, the Suitor’s Fund has long been criticised for providing payments which are insufficient to cover costs which arrive through no fault of the accused.

There is also a great deal of criticism, particularly from the Law Society of New South Wales, around how the fund is managed, and the administrative delays in getting payments approved for applicants.

Complex legislation

The Suitors’ Fund was established way back in in 1951.

The legislation which governs it, the Suitors Fund Act 1951 (NSW) is convoluted and complex, and making an application can sometimes take more work and cost than an accused person can expect to access.

The Fund also only applies in a limited number of circumstances and lawyers say it needs to be widened and better funded, and the process of obtaining funds streamlined, so it can fulfil its stated objective of providing financial fairness to those who suffer through court proceedings.