N5909
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 311 OF 2013

EMMA OMBU KARAKABO
Plaintiff

V

THE PUBLIC PROSECUTOR OF PAPUA NEW GUINEA
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Cannings J
2014: 3 December,
2015: 9 February, 18 March

COSTS – whether costs can be awarded in criminal proceedings – application by accused person acquitted at trial in National Court for costs against the Public Prosecutor and the State

The plaintiff faced trial in the National Court on a charge of stealing and was represented by private counsel. She was acquitted. The Court was critical of the Public Prosecutor's decision to prosecute the case. She subsequently applied for an order for costs against the Public Prosecutor and the State.

Held:

(1)	The National Court has no general power to award costs of a criminal trial to any party, including to an accused person who has been acquitted.

(2)	The National Court can only award costs of a criminal trial in the limited circumstances prescribed by Section 612 (costs of prosecution in certain cases) and Section 618 (costs of defence) of the Criminal Code, which means only in cases commenced by a private prosecutor (John Kil v The State (1991) SC406 applied).

(3)	The present case did not fall within either of the circumstances prescribed by Sections 612 or 618. This was a case prosecuted by the Public Prosecutor. The application was refused.

Cases cited

The following cases are cited in the judgment:

Clive Wissman v Collector of Customs [1977] PNGLR 324
John Kil v The State (1991) SC406
The State v Emma Ombu Karakabo (2012) N4897
Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PNGLR 385

Counsel

G Pipike, for the Plaintiff
S Phannaphen, for the Defendants

18th March, 2015 

1. CANNINGS J: The plaintiff, Emma Ombu Karakabo, faced trial in the National Court on a charge of stealing a motor vehicle and was represented by private counsel. She was acquitted. The Court was critical of the Public Prosecutor's decision to prosecute the case as the plaintiff had a clear defence and the complainant was her former husband who waited three years after the alleged theft of the vehicle before complaining to the Police (The State v Emma Ombu Karakabo (2012) N4897).

2. The plaintiff now applies for an order for the costs of her criminal defence against the Public Prosecutor and the State. Unfortunately I am obliged to refuse this application. I say unfortunately because this was the sort of case that warranted an award of costs as the plaintiff was unnecessarily put to the trouble and expense of defending herself, though the case against her was weak, she spent some time in remand before being granted bail, she had a clear defence and it seemed that the complainant, in reporting the matter to the Police, was acting out of vengeance rather than making a genuine complaint about commission of a crime. The Public Prosecutor should have declined to lay a charge. I was the trial judge and I encouraged the plaintiff to make this application, saying at the end of the judgment on verdict:

Though the power of the National Court to award costs to a successful accused is arguably confined by Section 618A (costs of successful defendant) of the Criminal Code to private prosecutions commenced under Division VIII.11 (information by private persons for indictable offences: ex officio indictments) I think that where an unnecessary (if not malicious) prosecution is commenced by the Public Prosecutor there is a case to say that the successful accused should in an appropriate case get his or her costs of the trial paid by the State. It might be that the conventional immunity of the Crown (or the State) against costs orders in criminal proceedings, which applies in other jurisdictions (eg in Queensland, as explained in R v His Honour Judge Kimmins; Ex parte Attorney-General [1980] Qd R 524) does not apply in PNG. The accused in the present case would appear to have been unnecessarily tried, so she might consider making an application for costs against the State.

3. When I made those comments I did not realise that this issue had already been determined by the Supreme Court (Kidu CJ, Amet J, Los J) in John Kil v The State (1991) SC406. Mr Kil, a lawyer recently admitted to practice, represented himself in a Supreme Court appeal against his conviction for murder in the National Court. The appeal succeeded, his conviction and prison sentence were quashed and he was acquitted and released from custody. He then sought a costs order against the State in respect of costs he incurred in engaging private counsel for his National Court trial. He did not seek the costs of his appeal as Section 31(1) of the Supreme Court Act expressly prohibits the awarding of costs to either side in Supreme Court criminal appeals; though he did apply for his "expenses", which were allowed in full by the Court pursuant to Section 31(2). The Court refused his application for National Court costs, ruling that the National Court has no power to award costs of a criminal trial and therefore the Supreme Court had no power either. It was noted that the only circumstances in which the National Court can award costs of a criminal trial are those prescribed by Section 612 (costs of prosecution in certain cases) and Section 618 (costs of defence) of the Criminal Code. Both of those provisions fall within Division VIII.11 (information by private persons for indictable offences: ex officio indictments). This means that the Court only has power to award the costs of a trial if the case has been commenced by a private prosecutor with the leave of the National Court under Section 616 (information by leave of the court by private prosecutors).

4. There is a policy argument against allowing the Court to award an acquitted accused her costs, which was alluded to by Saldanha J in Clive Wissman v Collector of Customs [1977] PNGLR 324, in these terms:

… 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.

5. That rather strict approach is consistent with the position taken by the Supreme Court (Kidu CJ, Pratt J, Bredmeyer J) in Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PNGLR 385, where it was emphasised that the power of a Court, even a superior court of record, to award costs is not an inherent power. The power needs to be expressly conferred. In civil proceedings, the National Court's power to award costs is conferred by the National Court Rules. In criminal proceedings there is no equivalent conferral of power. There is nothing in the Criminal Practice Rules or any other law.

6. I am bound by the Supreme Court decision in Kil by virtue of Schedule 2.9(1) (subordination of courts) of the Constitution (which is reinforced by Section 19(1) (rules of precedent) of the Underlying Law Act 2000), which states:

All decisions of law by the Supreme Court are binding on all other courts, but not on itself.

7. I have no power to award the plaintiff her costs of the criminal trial as she did not face a private prosecution. Her case was prosecuted by the Public Prosecutor. The application is refused. The parties will bear their costs.

ORDER

(1)	All relief sought in the originating summons is refused and the proceedings are dismissed.

(2)	The parties will bear their own costs

Judgment accordingly.
_______________________________________________________________
GP Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants