N482(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

AGATHA HARANGU

V

VERONICA WANGIWA AND DOROTHY TOMARIT

Waigani
Bredmeyer J

19 September 1984
28 September 1984

INFERIOR COURTS - District Courts - Costs - Criminal jurisdiction - Simple offence - Dispositive orders made - No power to award costs - District Courts Act 1963, ss 138, 267(1)(a).

COSTS - District Courts - Criminal jurisdiction - Simple offence - Dispositive orders made - No power to award costs - District Courts Act 1963, ss 138, 267(1)(a).

INFERIOR COURTS - District Courts - Costs - Power to award - Where order in favour of "complainant" - Confined to civil proceedings - District Courts Act 1963, s. 267(1)(a).

The District Courts Act 1963, s. 267(1)(a), provides: "where the court makes a conviction or order in favour of the complainant, it may in its discretion award and order that the defendant shall pay to the informant or complainant such costs as it thinks just and reasonable."

Under s. 138, the court may, where a person is charged with a simple offence, "without proceeding to conviction" make orders, either dismissing the charge or discharging the offender either conditionally or unconditionally.

Held

(a) The word "complainant" where twice used in s. 267(1)(a) means complainant in a civil suit.

(b) Accordingly, the court has no power to make an order for costs when a dispositive order is made under s. 138.

Cases Cited

Connington, Appeal of (1951) 68 W.N. (N.S.W.) 223.
McEnroe v. Mou [1981] P.N.G.L.R. 222.
Williams v. Lewer [1974] 2 N.S.W.L.R. 91.

Appeals

These were appeals against orders for costs made in the District Court in proceedings on private informations for using insulting words likely to cause a breach of the peace.

Editorial Note

An appeal to the Supreme Court has been lodged.

Counsel

D. Roebuck, for the appellant.
S. Cory, for the respondents.
Cur. adv. vult.

28 September 1984

BREDMEYER J: Two private informations were brought against Agatha Harangu for using insulting words likely to cause a breach of peace contrary to s. 7(b) of the Summary Offences Act 1977. The section carries a minimum penalty of three months imprisonment. The two cases were heard together. Mr Cory represented the informants and Mr Duvasa represented the defendant. After a trial, the magistrate apparently found the charges proved and applied s. 138 of the District Courts Act 1963. I say apparently because the magistrate in making his order did not mention s. 138 nor closely follow the wording of s. 138. He got the defendant to sign a bond but that bond does not recite s. 138 nor closely follow the wording of that section. No form of bond is provided in the regulations for a s. 138 order, so the magistrate used form 68, which is the form prescribed for a binding-over order under s. 220, without any adaptation. That is the order obtained by a wife when a husband had beaten her and is likely to beat her again. The recognizance that was signed has no sum of money stated in it, so that if Mrs Harangu breaches it she is not in danger of losing any money. Likewise, the condition of the bond does not tell her that if she breaches it, she is likely to be called on to appear for conviction and sentence. The condition in appeal No. 287 of 1984 mentions that "Agatha Harangu shall keep the peace and especially towards Veronica Wangiwa" who was the informant, and in the other appeal similarly mentions the name of the informant there.
In addition the magistrate awarded costs to the complainant. Mr Roebuck, for the appellant, has argued that the power to award costs is conferred by s. 267(1)(a) of the District Courts Act which reads:

"A ward of costs

267(1) The power of a court to award costs and the award of costs by a court are subject to the following provisions:

(a) where the court makes a conviction or order in favour of the complainant, it may in its discretion award and order that the defendant shall pay to the informant or complainant such costs as it thinks just and reasonable."

He has argued that the order made was not a conviction nor an "order in favour of the complainant". He referred me to s. 138(2) which says that a s. 138 order for the four purposes stipulated there has the same effect as a conviction. On the "expressio unius" rule the s. 138 order does not have the same effect as a conviction for other purposes. He referred me to two New South Wales cases, Connington, Appeal of (1951) 68 W.N. (N.S.W.) 223, a decision of the Chairman of the Quarter Sessions, and Williams v. Lewer [1974] 2 N.S.W.L.R. 91, a decision of Rath J.

Mr Cory, who argued in favour of the magistrate’s order as to costs, pointed out that "complainant" is defined in s. 5 to include an informant and thus the phrase in s. 267(1)(a) "order in favour of the complainant" includes an order in favour of the informant. The order obtained was in favour of the informant in the double sense that she won the case, the offence was found proved, and the defendant was required to keep the peace for one year especially towards the informant. Mr Cory referred me to McEnroe v Mou [1981] P.N.G.L.R. 222 and a number of recent unreported decisions of Pratt and McDermott JJ. where the National Court upheld awards of costs in the District Court on criminal matters, or awarded costs for work done in the District Court. Those cases do not appear to cover the exact point in issue here.

It is clear that costs in criminal cases are a creature of statute and that the order made in this case was not a conviction. Was it an "order in favour of the complainant"? I think not. The order made was "without proceeding to a conviction I now order the defendant to find sureties in the sum of — [sic] to keep the peace for a period of one year". A condition of the bond was that the defendant keep the peace especially towards the informant, but that was not part of the order. Section 267(1)(a) refers to "a conviction or order made in favour of the complainant", and later, "the court ... may order that the defendant shall pay to the informant or complainant ...". It is reasonable to interpret the word "informant" as relating to the "conviction", and the word "complainant" as relating to "order made in favour of the complainant". Or, to make the same point in a different way, it is reasonable to assume that the draftsman has used the word complainant in the same sense on each occasion. On Mr Cory’s argument the word is used in a different sense on each occasion: to include an informant (by virtue of s. 5) on the first occasion and to exclude an informant on the second occasion. The extended definition of complainant to include informant by s. 5 only applies so far as there is no contrary intention. If that extended definition was intended, it would only have been necessary to mention the word complainant on the second occasion. I believe a contrary intention is shown in s. 267(1)(a) and that "complainant" twice used there means complainant in a civil suit.

I am aided in my view by a comparison with ss 215-224 of the District Courts Act. Those sections prescribe the procedure for obtaining a binding-over order. If, for example, a wife has been beaten by her husband and fears a further beating, she may lay an information under s. 215. The proceedings are thus criminal but her information is a private information like our present case. She prays that the defendant be required with sufficient sureties to keep the peace. If she succeeds, the defendant is required to enter into a récognizance under s. 220. The order made is in favour of the wife in the sense that it names her and is for her benefit and protection. If the wife succeeds in gaining such an order, can she also succeed in gaining costs? On Mr Cory’s argument, she could under s. 267(1)(a) because the order obtained was an order in her favour. Yet the legislature found it necessary to provide expressly for costs for the wife in s. 224:

"Costs

S. 224. Costs may be awarded upon proceedings under this Part in the same manner and to the same extent, and are recoverable by the same process, as upon an information of a simple offence."

There is no equivalent section applicable to a s. 138 order. If the legislature had clearly intended such a power, it would have added such a section applicable to s. 138 or mentioned costs in s. 138(2). I think the contrary was intended. I am not willing to interpret s. 267(1)(a) to embrace a s. 138 order even though the defendant is ordered to keep the peace especially towards the informant.

The appeals will be allowed. The order as to costs is quashed. The costs of these appeals are granted to the appellant.

I add this: I have decided these appeals on legal grounds, on a question of statutory interpretation. If the power was there, the merits of the case strongly favour Mr Cory’s argument. In private prosecutions I believe it is desirable that costs should generally follow the event. That is the practice in New Zealand see Luxford, Police Law in New Zealand (3rd ed., 1967), at 115 and it should be the practice here. But the court has no statutory power to award costs against the defendant where the result is a s. 138 order.

Appeals allowed.

_____________________________

Lawyer for the appellant: D. Roebuck.
Lawyer for the respondent: S. Cory.