Kil v The State [1991] PGSC 2; SC406 (26 June 1991)

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KIDU CJ AMET J: In this application the Applicant John Kil, has asked the Court to order the State to pay the following costs and expenses:

The background of this appeal is contained in the Court’s judgment numbered SC 395. Mr Kil’s appeal against his conviction was successful.

“(1) On the bearing and determination of an appeal. No costs shall be allowed to either side”. [s 31(1) Supreme Court Act (Ch No 37)]

However, sub-section (2) of s 31 of the Supreme Court Act does allow certain expenses:

(a) of any witnesses attending on the order of the Supreme Court or examined in any proceedings or incidental to the appeal; and

(b) of the appearance of an Appellant, when in custody, on the hearing of his appeal or on any proceedings preliminary or incidental to the appeal; and

(i) any examination of witnesses conducted by any person appointed by the Court for the purpose; or

(ii) any reference of a question to a referee appointed by the Court under Section 8(1)(d), shall be paid out of Consolidated Revenue to an amount allowed by the Court, subject to any provision as to rates and scales of payment made by the Rules of Court”.

A. Photocopying
i) Transcript of Evidence 64 pages X 50t @ page	K32.00
ii) Appeal Book 103 pages X 5 Copies @ 40t per page	K206.00
iii) Written Submission 63 pages X 5 Copies @ 40t per page	K126.00
iv) List of Authorities exceeding 50 pages	K16.00
Witness Expenses
A. Airfares
i) Gorai Mondo:
May 25 1990: Hagen - Pom [Expected date of Hearing - 29 May 1990]	K120.00
June 1990: Pom - Hagen [Returned - Appeal Adjourned to 23rd July	K120.00
July 20 1990: Hagen - Pom (For Hearing)	K120.00
August 9 1990: Pom - Hagen [Return]	K120.00
ii) Andrew Moime
February 1990: Hagen - Pom [Information in respect of Fresh Evidence]	K110.00
1 June 1990: Pom - Hagen Return to POM for studies on his own account	K120.00
iii) Vincent Auali
27 May 1990: Hagen - Pom (expected trial on 29 May 1990)	K120.00
1 June 1990: Pom - Hagen (Return when adjourned)	K120.00
iv) Alex Rangip:
26 July Pom - Hagen: To serve Court Order on witness Peter Ua to attend Court	K120.00
28 July 1990 - Hagen - Pom [Return]	K120.00
v) Saka Young:
April 1990 - Hagen - Pom: Sept 1990: Pom Hagen	K230.00
B. Accommodation, Allowance, Etc
i) Gorai Mondo:
26 May 1990, 03 June 1990 I gave him K100.00 cash.	K100.00
22 July 1990 09 August 1990 I gave him K200.00 for allowances in the city while the hearing was on.	K200.00
ii) Saka Young:
In August I gave him K100.00 cash while the hearing progressed.	K100.00
iii) Andrew Moime: (Pastor)
He was cared for and the expenses met by the Nazarene Church.
iv) Alex Rangip:
While in Hagen he accounted for his own cost and did not want anything from me.
Appearances by myself from custody and while on Bail.
a) 29 may 1990 9.30am - 12.00pm K50 @ hour for 2 1/2 hours	K125.00
b) 23 July 1990 9.30am - 3.00pm K50 @ hour 4 hours	K200.00
c) 2 August 1990: 9.30 a.m - 12.00 pm 2 1/2 hours at K50.00 per hour	K125.00
Total	K2,830.00
Summary
Photocopying	K380.00
Air Fares	1,200.00
Allowances	450.00
Appearances	450.00
Total	K2,480.00

Photocopying is not an expense allowed by s 31 (2). The airfares and accommodation costs are expenses of witnesses who attended and gave fresh evidence on the order of this Court. They are allowed. We note that the State conceded these expenses.

The expenses claimed under the head “Appearances” are said to be allowed by s 31(2)(b) - i.e. expenses “The appearance of an appellant, when in custody, on the hearing of his appeal.” The Accused was not in custody when he appeared for the hearing of his appeal. He had been granted bail before his appeal came on for hearing. The second point to note about the application of s 31(2)(b) is that what is claimed must be “expenses”. There was no evidence of expenses incurred by the Appellant.

The second part of the claim relates to costs paid by the Appellant to his lawyer for defending him in the National Court. These amounted to K4,000.00. It was submitted by Mr Steele for the Appellant that this Court has power to allow these costs under s 6(2) of the Supreme Court Act (Ch No 37) which says:

“For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.”

In criminal cases in the National Court (i.e. trials in the National Court) the only provisions which relate to costs are ss 612, 613, 617, 618 and 618A of the Criminal Code (Ch No 262) but ss 612, 617, 618 and 618A are not of relevance here as they relate to special cases: ss 612 relates to costs of prosecution where a convicted person may be ordered to pay such costs to an aggrieved person; ss 617, 618 & 618A apply only in cases of private prosecutions.

‘costs of defence’ includes costs incurred by the accused person both before and after his committal;

‘costs of prosecution’ includes costs incurred by the person aggrieved in order to the committal of the offender, and costs incurred by him with the consent of the State Prosecutor for the purpose of the trial.

(2) Costs of a prosecution or defence shall be taxed by the proper officer of the Court in which the indictment is presented”.

It would seem curious that the legislature has gone to the trouble of making provisions for costs in special cases (ss 612, 617, 618 & 618A) and then provide for a general costs provision enabling the National Court to order costs for or against the State or any defendant in all criminal cases in that court.

One thing undisputed about s 613, which is stated in subsection (2) thereof, is that it is a taxation of costs provision. It does not directly empower the National Court to order costs either against or for the State or for or against a defendant.

Section 613 is in Division 8, Part VII of the Code. This Division consists of ss 612 & 613. Previously, before 1974 when the present code was enacted by the House of Assembly, we had adopted the Criminal Code of Queensland 1899. In that adopted Code the equivalent of s 63 was then s 662. This section was in Chapter LXV with ss 660, 661 & 663. They provided as follows:

660. When a person is convicted on indictment of any indictable offence relating to the person or any person, the Court, on the application of the person aggrieved by the offence, may, in addition to any sentence which is passed upon the offender, adjudge him to pay to the person aggrieved his costs of prosecution, together with a sum by way of compensation for any loss of time suffered by him by reason of the offence of which the offender is convicted.

An order for the payment of such costs, or of any sums awarded by way of compensation, may be enforced in the same manner as a judgment of the Court given in an action.

If any money was found in the person of the offender on his arrest, the Court may order it to be applied towards the payment of any money so ordered to be paid by him.

When an order is made under the provisions of this section for the payment of money by way of compensation to an aggrieved person, the offender is not liable to any civil proceedings for the same cause at the suit of that person.

661(1) In the case of a prosecution of any person on the complaint of a private prosecutor on a charge of the unlawful publication of defamatory matter, if the accused person is indicted and acquitted he is entitled to recover from the prosecutor his costs of defence, unless the Court otherwise orders.

(2) In the case of a prosecution of any person on the complaint of a private prosecutor on a charge of the unlawful publication of defamatory matter, if the accused person pleads that the defamatory matter was true and that it was for the public benefit that the publication should be made, then, if that issue is found for the Crown, the prosecutor is entitled to recover from the accused person the costs sustained by him by reason of such plea, unless the Court otherwise orders.

662: Costs of a prosecution or defence must be taxed by the proper officer of the Court in which the indictment is presented.

If the indictment is presented in a Circuit Court, the costs must be taxed by the proper officer of the Supreme Court.

The term “costs of prosecution” include costs incurred by the person aggrieved in order to the committal of the offender, and costs incurred by him with the consent of the Crown for the purposes of the trial.

The term “costs of defence” includes costs incurred by the accused person both before and after his committal.

663: When an order is made by a Circuit Court under the provision of this Chapter, it may be recorded in the Supreme Court, and may then be enforced in the same manner as a judgment of that court given in an action.”

Sections 660 & 661 respectively mention costs of prosecution and costs of defence and it is understandable why s 662 mentions Costs of a Prosecution or Defence.

The Criminal Code was redrafted and re-enacted in 1974 and in that New Code what was ss 660 and 662 were re-enacted as ss 612 & 613. The old ss 661 was omitted. However in omitting this provision no alterations were made to what is now s 613. But in Division 8, which is headed “Costs”, s 612 does not say anything about costs of defence, it only allows the National Court to order “Costs of Prosecution” of an aggrieved person and such costs are to be paid by the convicted person and not the State. No power is given to the National Court to pay “costs of defence”.

As I have said 2.613 is merely a taxation provision and I re-iterate that it does not empower the National Court to order costs against the State.

LOS J: This is an application for costs by the Applicant. The Applicant was convicted by the National Court on 11 September 1989 for murder and he was sentenced to nine years imprisonment with hard labour. From that decision he appealed to the Supreme Court and the Supreme Court upheld his appeal, quashed the decision and he was released thereafter. He now comes before the Supreme Court and applies for costs for his appearances and the expenses involved in prosecution of his appeal before the Supreme Court. He also applies for costs for his defence before the National Court.

It was conceded before the Supreme Court that on any criminal appeal no costs could be claimed except for certain expenses. Section 31 of the Supreme Court reads:

“(1) On the hearing and determination of an appeal, no costs shall be allowed to either side.

a) Of any witness attending on the order of the Supreme Court or examined in any proceedings incidental to the appeal; and

b) Of the appearance of an appellant, when in custody, on the hearing of his appeal or on any proceedings preliminary or incidental to the appeal; and

(i) any examination of witnesses conducted by any person appointed by the Court for the purpose; or

(ii) any reference of a question to a referee appointed by the Court under s 8(1)d, shall be paid out of the Consolidated Revenue Fund to an amount allowed by the Court, subject to any provision as to rates and scales of payment made by the Rules of Court.”

The expenses claimed are return airfares for the witnesses the Applicant had brought from Hagen to Port Moresby. The Applicant also claims for the costs of the accommodation for the witnesses. Clearly those costs can be awarded under subsection 2(a).

The next claim is for the costs of the Applicant’s appearances in the Supreme Court to prosecute his own appeal. Sub-s (2) allows claims for the expenses; not for a mere appearance from the custody. The Applicant was taken from the custody down to the Supreme Court by the Corrective Institution’s car. And from thereon he was given bail and he was out of the custody. He incurred no expenses. Mr. Steele, on behalf of the Applicant submitted that “in custody” meant two things. Firstly it meant the physical custody of the Applicant and secondly, it meant legal control over the Applicant by the Court. In other words when bail was granted to the Applicant he was required to appear in court and prosecute his appeal; he was not a free man. In a way therefore he was still in custody. I don’t see any authority for putting such an interpretation of the phrase “in custody” and I think it is reading too much into what should be the clear provision in s 31(2)b of the Supreme Court Act.

There is no provision in the National Court Act on costs for criminal proceedings. There is also no general provision in the Criminal Code such as s 31 of the Supreme Court Act on costs. The first section in the Criminal Code that gives an appearance of a grant of power to the National Court on costs is s 613(1):

“(1) “Cost of defence” includes costs incurred by the accused person both before and after his committal;

“costs of prosecution” includes costs incurred by the person aggrieved in order to the committal of the offender and costs incurred by him with the consent of the State Prosecutor for the purposes of the trial.”

“(2) Costs of a prosecution or defence shall be taxed by the proper officer of the court in which the indictment is presented.”

In my view the section gives no such power. This is a definition section; it defines the costs that may be awarded under s 612 of the Criminal Code and also the costs that may be awarded under s 618 of the Code. The National Court has at one time or another dealt with award of costs in the criminal prosecutions, for example, Clive Wissman v. Collector of Customs (1977) PNGLR 324, Baiyer River Local Government Council v. Yandapu & ors (1980) PNGLR 430, and Dennis McEnroe v. Felix Mou (1981) PNGLR 222. But in these cases the National Court was dealing with the appeals from the District Court. The National Court derived its power from the appeal provisions of the District Court Act. I consider therefore that National Court has no statutory base to award any costs other than in the circumstances described in s 612 and 618.

Can the National Court turn to its inherent powers under the Constitution (s 155(3)b and subsection 4). These powers are wider and discretionary. Avia Aihi v. The State (1981) PNGLR 81. But the powers cannot be used to create any primary right especially where in this case the Parliament has deliberately abstained from making any provisions in the Criminal Code authorising the National Court to award any costs. I consider it deliberate because the Parliament has legislated on the subject of costs but limited itself to costs on private prosecutions. Even as recent as 1986 when the Parliament deliberated on the subject, it only amended s 618 to provide for the circumstances under which costs may be awarded in private prosecutions. There are various policies involved on award of costs in criminal prosecutions and I think that it is not a proper case for determining any right without considering a whole host of policy issues. Some of these policies are apparent in various cases both in Papua New Guinea and Australia. Saldanha, J in Wissman v. Collector of Customs (1977) PNGLR 324 cites the policy and follows its development by reference to various Australian State cases, and a decision of the Supreme Court of the Australian Capital Territory: McEwen v. Siely (1972) 21 FLR 131. The basic policy was that no costs were to be allowed to a successful defendant when the informant was a police officer and that he had reasonable grounds for prosecuting. The reasoning was that if the police ran the risk of being ordered to pay costs, they might hesitate to bring cases before the court.

The policy had subsequently been criticised: No police officer would be expected to pay out of his own pocket when he was acting in the course of his duty, unless his action was extraordinary. Not all the prosecutions were expected to be successful and this should not deter the police from laying complaints as long as they knew they could make out a prima facie case. In McEwen case the court examined the deliberations of the early cases and concluded at page 136:

“The matter now under consideration is whether, when the defendant is acquitted, he should bear the burden of his own costs. There are, of course, still some private informants; but it must be borne in mind that they come to the court to enforce the criminal law; and, while the circumstances affecting them may in some degree be different, in general the principle applicable to informations laid by the police should be adhered to. From what we have said in the discussion of the authorities, it will be apparent that 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 injust to award him costs.”

Some of the policies are reflected in the 1986 amendment of the Criminal Code, though limited to the private prosecution.

“(1) Notwithstanding the provisions of s 618 the court or the judge shall, before making an order for costs under that section, consider all relevant circumstances and in particular where appropriate shall consider:

(a) Whether the prosecution acted in good faith in bringing and in continuing the proceedings; and

(b) Whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant; and

(c) Whether the prosecution took reasonable steps to investigate any matter that came to its attention and to suggested that the defendant might not be guilty; and

(d) Whether the prosecution conducted the investigation into the offence in a reasonable manner; and

(e) Whether the evidence was sufficient to support the conviction of the defendant but the information was dismissed on a technical point; and

(f) Whether the information was dismissed because the defendant established that he was not guilty; and

2) The investigation and proceedings, was such, that a sum should be paid towards the costs of his defence.

(3) A defendant shall not be awarded costs under s 618 or under any provision in any other Act by reason only of the fact that:

(b) An information charging him with an offence has been dismissed or withdrawn.”

Although the reasoning in McEwen’s case is appealing the fact remains is that the Parliament has seen it fit not to legislate on the subject.

Even if the National Court could award costs in its inherent powers, the Court has to consider whether this case warrants such an award. To decide that the Court has to look at the grounds upon which the appeal was successful:

(1) The Supreme Court said His Honour made an error in law when he said that the Appellant’s story should have been corroborated or supported by other evidence. The law does not say an accused should do anything like that.

(2) His Honour made an error in brushing aside the evidence by the owner of the club where the killing occurred. The thrust of his evidence was that there was a fight in all parts of the club. He could not count how many people were involved. On the face of this evidence, His Honour was not correct when he said there was no other version of the events then that of the witnesses who said they saw the stabbing, they identified who did it and they named the accused.

(3) His Honour made an error in admission of the knife. The knife had not been properly identified so as to connect with the stabbing of the deceased.

From all these points the Supreme Court concluded that His Honour should have had doubt about the accused’s involvement. Under our criminal justice system an accused must get the benefit of the doubt. And indeed the Applicant was successful on his appeal on this basis.

I do not see anything that would indicate that the prosecution was extraordinarily wrong; it was brought about in good faith. It is the prosecution’s job to bring the case before the Court; they do not expect to win all the time. I also do not see anything extraordinarily wrong with the trial. The appeal was successful because there were aspects of the evidence that should have thrown doubt into the prosecution; it was not the decision of the Supreme Court that the National Court made an error in not holding that the Appellant was not the one who stabbed the deceased. The latter is not the same as the former. And lastly, I do not see anything sinister that put the Applicant into a great expense of running his defence. I would therefore refuse the application for costs for defence at the National Court.

Supreme Court of Papua New Guinea

Kil v The State [1991] PGSC 2; SC406 (26 June 1991)