Wissman v Collector of Customs [1977] PGNC 48; [1977] PNGLR 324 (3 October 1977)

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CRIMINAL LAW - Practice and procedure - Costs - Costs of appeal to National Court - Costs in discretion of Court - Principles applicable - Costs refused - District Courts Act 1963, s. 236[cccxxxi]¹.

The appellant, Wissman, was convicted by a District Court magistrate of the offence of having in his possession a prohibited import, namely, cannabis seeds, contrary to s. 218(1)(d) of the Customs Act 1951. Evidence identifying the seeds was adduced in a statement made by a Professor Drover headed “affidavit” and signed by Professor Drover and a witness. On appeal against conviction to the National Court, the appellant succeeded on the technical point that the statement was not an “affidavit” and should not have been admitted in evidence, and the case was remitted for hearing before another magistrate of the District Court. On application being made for costs both in the appeal and on the original hearing:

N1>(1) The National Court has power to order costs in respect of the appeal under s. 236(1)(f) of the District Courts Act, 1963.

N1>(2) The National Court has power to order costs in respect of the proceedings in the District Court under s. 236(1)(e) of the District Courts Act, 1963. (The District Court itself having the power under s. 267 of the Act.)

N1>(3) Such costs may be ordered in the Court’s discretion and according to judicial principles.

N1>(4) The practice in Australia of allowing costs to a successful defendant in criminal proceedings is not applicable to Papua New Guinea in the light of the difficulties of the country as a still developing nation, and particularly in the light of the dearth of professionally qualified magistrates and the fact that in Papua New Guinea a defendant is not expected to pay the costs of the prosecution in the event of being convicted.

N1>(5) In the circumstances it was also relevant that the appellant had succeeded on the appeal on a pure technicality and not on merit; and had not in the event been wholly successful.

N1>(6) In the exercise of the Court’s discretion no order as to costs should be made.

This was an application for costs of an appeal to the National Court and for costs of proceedings before the District Court by an appellant (defendant) who had been successful on the appeal against his conviction by the District Court on a charge of being in possession of a prohibited import.

SALDANHA J: The appellant was convicted by a magistrate at the District Court of Kieta of the offence of having in his possession a prohibited import, namely, cannabis seeds, contrary to s. 218(1)(d) of the Customs Act 1951.

At the trial the prosecution sought to prove that the seeds found in possession of the appellant were cannabis by putting in evidence a written statement made by Professor Drover of the University of Papua New Guinea, to the effect that he had examined the seeds and they were cannabis. This statement was headed “Affidavit” signed “D. P. Drover, Professor of Chemistry” and “John Eric Gabbott, Justice of the Peace”. The prosecution maintained that the written statement was an affidavit and presumably admissible under the provisions of the Evidence by Affidavit Act 1969. Appellant’s counsel objected to the written statement being admitted on the ground that it was not an affidavit. The objection was overruled by the trial magistrate.

On appeal I held that by reason of the omission of the words “make oath” by the maker of the statement and the omission of the jurat, the written statement was not an affidavit and should not have been admitted in evidence. I ordered that the case be remitted for re-hearing before another magistrate of the District Court. The appellant now applies for costs both here and in the Court below.

The question of costs is governed by s. 236(1)(e) and (f) of the District Courts Act 1963 which provide as follows:

N2>“236(1) Upon the hearing of an appeal, the Supreme (National) Court shall enquire into the matter and may:

(e) exercise a power which the court which made the conviction, order or adjudication might have exercised; and

Under s. 236(1)(f) therefore this Court has power to order costs in respect of the appeal and under s. 236(1)(e) it has power to make an order for costs of the proceedings in the District Court if the District Court has the power to order costs. The District Court does have such a power under s. 267. The Court has a discretion regarding the award of costs. There is no dispute about this nor any dispute that the discretion must be exercised in accordance with judicial principles.

The practice in Australia until the early part of the twentieth century was not to allow costs to the successful defendant when the informant was a police officer and he had reasonable grounds for prosecuting. This practice was based on public policy on the ground that “if the police find that they run the risk of being ordered to pay costs, they may hesitate to bring cases before the Court”. Per Darley C.J. in Ex parte Jones[cccxxxii]².

In Anstee v. Jennings[cccxxxiii]³, however, the Full Court of Victoria allowed a successful defendant costs, Mann J., saying at p. 148:

“It may be worth while to point out that the order for costs in a Court of Petty Sessions or other costs should have nothing to do with the reasonableness of the informant’s action. It is a matter of giving proper indemnity to a successful defendant for costs to which he has been put without lawful justification....”

In Hamdorf v. Riddle[cccxxxiv]⁴ the Full Court of South Australia stated at p. 400:

“... Whatever may have been the position in 1906, it is not possible to think in 1971 that a police officer who was a complainant in a court of summary jurisdiction would be left to pay out of his own pocket any costs ordered against him when the complaint was dismissed, unless, perhaps, his action was extraordinary and outside what might reasonably be anticipated of the behaviour of a police officer in the course of his duty. If it is, it might not be unjust that he should have to bear the costs himself. No one expects every prosecution to succeed, nor should anything we say be construed as intended to deter, as we are sure it will not deter, the police from laying complaints in courts of summary jurisdiction if they think that they can make out a prima facie case. But that is no reason why unsuccessful charges should be prosecuted with no recompense to the defendant for the expense to which he has been put, at least so long as he is expected to recompense the prosecution for the expense of a successful charge. It should not be the normal rule that he stands to lose both ways. We think that the fear that the police will refrain from bringing charges that ought to be brought, if they run the risk of having to pay costs if they lose, is fanciful and does less than justice to the State or to the police, and, even if it were better founded than we think it is, it would, in our view, afford no justification for the practice in question.”

In Leighton v. Samuels[cccxxxv]⁵ the Supreme Court of South Australia following Hamdorf v. Riddle[cccxxxvi]⁶ allowed to a defendant the costs of three out of the five counts on which he had been successful.

In McEwen v. Siely[cccxxxvii]⁷ the Supreme Court of Australian Capital Territory stated at p. 136:

“... we think that generally an acquitted defendant should have his costs unless he has by his conduct brought the proceedings or their continuation upon himself or unless some other consideration is present which makes it unjust to award him costs.”

It seems therefore that in Australia the practice has been firmly established of allowing costs to a successful defendant as in civil cases, except that in criminal cases, the Court has a discretion which must be judicially exercised. If I may say so with respect it is a practice that is fair and just and admirably suited to the comparatively affluent circumstances of that country.

But that is not to say that we in Papua New Guinea must slavishly follow the practice prevailing in Australia. The circumstances in the two countries are vastly different. While Australia is a highly developed country ours is still developing with all the difficulties that this process entails. One of the difficulties is that in District Courts the vast majority of cases are heard by magistrates who are not professionally qualified. The trial magistrate in this case was not qualified. Had he been qualified he would no doubt have dealt with the problem with which he was confronted by adjourning the case to enable the police prosecutor to have the written statement properly sworn.

As I said in my judgment on the appeal although the written statement was inadmissible there can be little, if any, doubt that the seeds were in fact examined by Professor Drover and found by him to be cannabis seeds. The appellant has succeeded on a pure technicality and not on merit, and, as Mr. Maino, the Acting State Solicitor and counsel for the respondent, has pointed out the appellant has not been wholly successful, the case having been remitted for re-hearing before the District Court.

One reason why in Australia a successful defendant is allowed his costs is that in the event of being convicted he has to pay the costs of the prosecution: see Hamdorf v. Riddle[cccxxxviii]⁸ in the passage cited above. I think I am right in saying that in this country the Court does not order a convicted defendant to pay the costs of the prosecution. If a defendant is not expected to pay the costs of the prosecution in the event of being convicted it would not be unfair to disallow his costs if he is successful.

For these reasons, in the exercise of my discretion, I make no order as to costs.

[cccxxxi]Infra. p. 325.

[cccxxxii](1906) 6 S.R. (N.S.W.) 313.

[cccxxxiii][1935] VicLawRp 6; [1935] V.L.R. 144 at p. 148.

[cccxxxiv] [1971] S.A.S.R. 398 at p. 400.

[cccxxxv][1972] 2 S.A.S.R. 422.

[cccxxxvi][1971] S.A.S.R. 398.

[cccxxxvii] (1972) 21 F.L.R. 131 at p. 136.

[cccxxxviii] (1971) S.A.S.R. 398.

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National Court of Papua New Guinea

Wissman v Collector of Customs [1977] PGNC 48; [1977] PNGLR 324 (3 October 1977)

Papua New Guinea Law Reports - 1977