Regina v Pohe [2010] SBHC 29; HCSI-CRC 309 of 2008 (25 June 2010)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 309 of 2008

REGINA

V

ALFRED KEJOA POHE

Date of Hearing: 26th February 2010
Date of Ruling: 25th June 2010

For Applicant: Mr. Charles Ashley
For Respondent: Ms. L. Folamoetui/Mr. Woods

RULING

Naqiolevu J:

1. This is an application for costs by counsel for the applicant for costs incurred in the proceedings in the Lower Court and the subsequent discontinuance of the appeal from the Principle Magistrate court decision by the DPP.

Background

2. The applicant was arrested on the 18th of January 2005 for 87 various counts of Official Corruption and first appeared in the Magistrates Court on the 19th of January 2005. Some of the counts were later withdrawn and the applicant was prosecuted for the 3 counts of Corruption.

3. At the time of the applicant’s arrest he was the Commissioner of Inland Revenue having worked in the department as a public officer since the 2nd of March 1972. The applicant did not return to work as the Commissioner for Inland Revenue because when the Magistrate Court acquitted him on the 15th of September 2008, an appeal was filed by the Prosecution on the 16th of September 2008. On the 14th of October 2009, the Prosecution filed a Notice of Discontinue of Appeal and the applicant filed its Costs of Application on the 16th of October 2009.

4. Counsel assert the power of the High Court to award costs is discretionary and in the exercise of its discretion the court will ask itself, is it just that an order for costs as sought by the applicant be refused. If the order sought is refused, to what extent should the refusal be, and if accepted, to what extent should the acceptance be.

5. Counsel assert the court should exercise its discretion in favour of making the order for costs as sought by the applicant because it would seem unjust for the applicant if the order sought are refused and unjust for the following reasons:-

a) first and foremost the applicants employment of 33 years with the Public Service of the Solomon Islands Government was cut short when he was charged for offences which was later acquitted.

b) when the Magistrate Court acquitted the applicant in September 2008, the Prosecution filed an appeal only to discontinue with it after more than a year.

c) The finding of the Magistrate Court remains the law since the appeal has been discontinued. The law is that and always been that as stated under Section 8 of the Penal Code.

6. The applicant has incurred costs since January 2005 because of the charges which the applicant submits are unfounded. Those costs the applicant submit are fair, just and reasonable. The Prosecution has not challenged the quantity of costs but instead reasoned that because the Magistrate did not address the issue of costs, the applicant can not and should not be awarded costs in the High Court.

7. Counsel submit the Court should exercise its inherent powers to award costs as sought by the applicant under Section 293 of the CPC:

The granting of the order sought there is no substantial miscarriage of just.

Respondent Submission

8. Counsel for the crown assert the issue involved in the application are:-

1. Is the respondent entitled to costs for criminal proceedings in the Magistrate Court under Section 153 of the CPC.

2. Is the respondent entitled to appeal costs under Section 291 (1) of the CPC.

3. Are the costs claimed by the applicant properly justified.

9. Counsel submit the Criminal Procedure Code sets out costs against accused or against private prosecutor.

1. Section 153 (1) sets out the law on any order to be made by a Judge or Magistrate for reasonable costs.

2. Section 154 an appeal from any order of the Magistrate Court awarding costs. Section 291 (1), The High Court may make order as to costs of an appeal.

3. Section 292 (1) prescribes the power of the High Court to make order for reasonable costs in an application for discontinuance of an appeal.

10. Counsel assert an application for costs by an applicant is made pursuant to Section 291 and 292 of the CPC. The order sought in the application are in relation to costs incurred from proceedings both in the Magistrate Court and the High Court.

11. Counsel assert historically and in common law the crown neither paid no received costs. Under the CPC there is no provision which provides for costs to be awarded against a public prosecutor. In this matter the DPP referred the crown which commenced in the Magistrate Court, Section 153 exclude the public prosecutor from being awarded costs by a Judge or Magistrate.

12. On the issue of discontinuance in an appeal by giving notice in writing to the Registrar of High Court any time before the hearing date. According to the affidavit sworn by Rob Barry, paragraph 20, on the 13th of October 2009, the DPP advised in writing to the Respondent and the Registrar of the High Court that the appeal will be discontinued. And as further stated in paragraph 10, the matter was listed for hearing on the 12th of November 2008, but the Respondent or his counsel did not appear and the DPP was advised that a hearing date was set for 21st of September 2009, and again nothing happened.

13. Counsel assert the power to award costs under Section 291 and 292 is discretionary and the fact that the defendant has been discharged give the court the jurisdiction that the defendant was qualified to make the application may be a relevant circumstance but it does not give rise to a presumption that the defendant should get an order. Where costs are in the discretion of the court, a party has no right to costs unless are until the court awards them to either party. The court has an absolute and unfitted discretion to award or not to award them. The discretion must be exercised judicially, it must not be exercised arbitrary but in accordance with reason and justice.

14. Count assert as a matter of Public Policy, Police Officer and Public Officers charged with enforcement of the Criminal Laws are carrying out public duties and public prosecutors fall with that category, and public that may discourage such public offices for carrying out its duties with the apprehension that costs under awarded may be made against the crown. Awarding costs may act as a deterrent to police laying information in court. Costs awarded in criminal proceedings will be an added burden to the already strained resource and budget of the Solomon Islands Government.

15. Counsel submitted if the court find that Applicant is entitled to costs pursuant to Section 291 (1) the claim for costs must be submitted to the appropriate authority in such form and manner as it may order and must be accompanied by receipts or other documents in support of any disbursement claim.

16. Mr Woods on behalf of the respondent submit that the court must read the provision of Section 293 of the CPC in its entirety. It is clear that this is not an appeal but an application for costs. The Learned Magistrate had not made an order as to costs pursuant to Section 155 of the CPC. Mr Woods cited the authority of ([1]) Beny-v-Britsh Thompson Commen and the case of ([2]) Ex parte Jones –v- NSW.

17. The court is of the view that the issue is that the court has the power to order costs for a case being filed in this court when the appeal commenced.

18. The authority to grant the application under a proceeding which has been discontinued in this court is found under Section 292(1) of the CPC Section 292(1).

"An appellant may by giving notice in writing to the Registrar of the High Court discontinuance his appeal at any time before the date of hearing, and upon such discontinue and without prejudice to the power of the High Court to make an order for costs, no further steps shall be taken in the appeal."

19. The court is of the view that the provision clearly provide a discretion to this court to grant an order to costs where it consider it appropriate. The court adopt the principle of law enunciated by the High Court of Australia in the case of Yamer –v- Eaton([3]) where the court said in a joint statement, "If there is a discretion to make such an order, that discretion should ordinarily be exercised in favour of a successful defendant".

20. The court consider the appeal commenced where the Notice of Appeal was filed and the subsequent documents in support were served on the parties. Further the various stages of the preliminary proceeding for clearly the applicant has incurred some costs in the proceeding. The court in this regard will consider exercising its discretion to make an appropriate order.

21. The court however consider the respondents submission that in making a finding for a claim of cost the court should consider that the claim must be heard by the appropriate authority and in such form, and manner as it may direct and must be accompanied by receipts or other documents in support of any disbursements claimed.

22. The court in all circumstance is of the view it is reasonable and just to make an order that the applicant is entitled to some cost in the preceding in the court in particular the cost involved in the preparation of its case, and the associated cost in the High Court.

The court having carefully considered the submission by the applicant in support of the application, the court having further considered the response by the respondent and the authorities cited, in support in, all circumstances make the following order:

ORDER

1. The applicant is entitled to some cost for the preceding in the High Court.

2. Order that proper application be made in the prescribed form which must include receipts and other documents in support of any disbursement claimed to the Registrar to tax the costs in the preceding.

THE COURT

---

^[1] (1961) QB Dion
^[2] 1906 NSW RP 38-39
^[3] Eno 27 (1999) 74 ALJR, 76