Entirely legally aided defendants are not precluded from obtaining costs certificates under the Costs in Criminal Cases Act 1967 (NSW). The expression 'costs incurred in the proceedings' in s 4(1) extends to costs incurred on behalf of the acquitted person, not only costs personally incurred. The Legal Aid Commission may continue its practice of recovering costs through the s 2 certification procedure. Appeals from refusals of costs certificates by Supreme Court judges lie to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW), not to the Court of Appeal by way of judicial review. The question whether s 2 confers a residual discretion (or whether 'may' means 'must') remains open.
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