R v Dettke [2022] SBCA 2; SICOA-CRAC 01 of 2022 (8 July 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	R v Dettke
Citation:
Decision date:	8 July 2022
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Bird J)
Court File Number(s):	01 of 2022
Parties:	Regina v Heinz Borst Bodo Dettke
Hearing date(s):	27 June 2022
Place of delivery:
Judge(s):	Goldsbrough P Palmer CJ Hansen JA
Representation:	Olutimayin R for the Appellant Suri G for the Respondent
Catchwords:	Appellant Costs Criminal Procedure Code
Words and phrases:
Legislation cited:	Traffic Act [cap 131] S 40 (1) Criminal Procedure Code [cap 7] S 190 (2) (b) (i), S 155, S 153 (1), (2)
Cases cited:	R v Alfred Kejoa Pohe [2010] SBHC 29
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-5

JUDGMENT OF THE COURT

1. This is an appeal against the orders of the High Court dated 7^th December 2021 which awarded costs to Heinz B. B. Dettke (“Respondent”) (Appellant in the High Court) in both the Magistrates’ Court and the High Court.
2. The parties to this appeal were offered the choice of a virtual or paper hearing. Presently the borders to the Solomon Islands are closed and the Court of Appeal is thus constrained. In the event the parties chose to have the appeal dealt with by the circulation of papers. We reserved the right to call a virtual hearing should any matter arise on which we sought to ask questions of counsel. No such matters arose.
3. The Crown (“Appellant”) appeals against the orders of the High Court on the following grounds:
   • (1) That the learned Judge erred in law when she ordered that the Respondent as the Appellant in the High Court was entitled to his costs both in the Lower Court and the High Court in her order number 4, without any powers vested on her under the Criminal Procedure Code to invoke such an order.
   • (2) That the learned Judge erroneously applied the case of R. v. Alfred Kejoa Pohe^[1] in relation to costs in the present case when she ruled that the Appellant was entitled to his costs both in the lower Court and the High Court.

Brief Background.

4. The Respondent had been charged with the offence of careless and inconsiderate driving contrary to section 40 (1) of the Traffic Act (cap. 131) in the Magistrates’ Court on or about the 8 August 2020.
5. On the 8^th February 2021, on the fourth mention of the matter, the charge was withdrawn by the Appellant, pursuant to section 190(2) (b) (i) of the Criminal Procedure Code [cap. 7] (“CPC”) and the Respondent acquitted.
6. Subsequently he applied for compensation and costs pursuant to section 155 of the CPC. The presiding Magistrate declined jurisdiction (wrongly) and dismissed the application. She made no finding on the question whether the charge was “frivolous or vexatious” as required under section 155 of the CPC.
7. On appeal to the High Court, the Judge determined that issue, ruling against the submission that the charge was frivolous or vexatious, thereby denying the Respondent any rights to compensation under Section 155 of the CPC.
8. That would have determined the issue there and then but the Judge went on to award costs both in the Magistrates’ Court and the High Court for the Appellant.
9. This being an appeal against costs sought in the Magistrates’ Court under section 155 of the CPC, the Crown submits that the powers of the High Court as to costs are necessarily confined to what the legislation says.

Costs against accused or private prosecutor

10. In the Magistrates’ Court, a person convicted of an offence may be ordered by a Judge or Magistrate to pay to a public prosecutor or private prosecutor such reasonable costs as may seem fit, in addition to any other penalty imposed^[2]. However, there is a limit to the amount to be ordered, being fifty dollars in the case of the Magistrates’ Court. In the case of the High Court, this is limited to one hundred dollars.
11. The same applies to a person who is acquitted or discharged of an offence (which is the case here), if the prosecution is originally instituted on a summons or warrant issued on the application of a private prosecutor, to order such private prosecutor to pay the accused such reasonable costs as may seem fit but again limited to one hundred dollars in the case of the High Court or fifty, dollars in the case of the Magistrates’ Court^[3].
12. In the Magistrates’ Court, where there has been an acquittal or a discharge, (as has happened in this case), the Court has power to impose such reasonable costs but limited to fifty dollars against a private prosecutor. There is no power to impose costs where the prosecutor is a public prosecutor (from the Police or the Office of the Director of Public Prosecutions).

There is, however, a further limitation^[4] to the power to order costs against a private prosecutor if the Judge or Magistrate considers that the private prosecutor had reasonable grounds for making the complaint, no such order shall be made in the circumstances.

13. This case does not fall within that provision (section 153(2) of the CPC) and so, on the face of it, no order for costs can be made against the Crown (public prosecutor).

Decision

14. The judge having made a decision on the primary issue on costs and compensation brought under section 155 of the CPC, that the charge was not frivolous or vexatious, meant that should have been the end of the matter and no costs should have been awarded against the Crown (public prosecutor) in the circumstances. There was no provision in the law which empowered her to order costs and accordingly she erred when awarding costs against the Crown in the circumstances.
15. Secondly, it is pertinent to note that the Magistrate had no power to impose costs against the prosecution for a public prosecution. Accordingly, the judge also erred when awarding costs in the Magistrates’ Court and the High Court as against the Crown. The Court had no power to do that.
16. Thirdly, the decision in R. v. Alfred Kejoa Pohe^[5] is distinguishable to the facts of this case. The Applicant, (Pohe) in that case, had been initially charged with 87 counts of Official Corruption. The majority (84) however were eventually withdrawn and only 3 proceeded with in the Magistrates’ Court. He was acquitted on 15^th September 2008 after trial. On 16 September 2008, a petition of appeal was filed in the High Court. A year later, on 10^th October 2009, a Notice of Discontinuance of Appeal was filed. On 16 October 2009 he applied for costs. It was not disputed that he had incurred costs since appeal.
17. In this case, the matter was discontinued only after the 4^th mention in the Magistrates’ Court. If he was not entitled to costs in the Magistrates’ Court, it would not be proper to award him costs by the High Court. As to costs in the High Court, we are satisfied he should not have been awarded any either.
18. We are satisfied accordingly the following orders should be made. The appeal is allowed, the order for costs against the Crown (public prosecutor) is quashed. We make no order as to costs on this appeal.

Orders of the Court:

1. Allow the appeal.
2. Quash order for costs against the Crown.
3. Direct that there be no order for costs on this appeal.

Goldsbrough P.
Palmer CJ.
Hansen JA.

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^[1] High Court of Solomon Islands CRC no. 309 of 2008 (25^th June 2010) per Naqiolevu J.
^[2] See Section 153(1) of the CPC.
^[3] See section 153(2) of the CPC.
^[4] See the proviso in section 153(2) of the CPC.
^[5] HCSI-CRC No. 309 of 2008, (25 June 2010), per Naqiolevu J.