John Kil v The State

• Jurisdiction: Papua New Guinea
• Judge: Los J:
• Judgment Date: 26 June 1991
• Citation: (1991) SC406
• Court: Supreme Court
• Year: 1991
• Judgement Number: SC406

Supreme Court: Kidu CJ, Amet J, Los J

Judgment Delivered: 26 June 1991

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SC APPEAL NO. 80 OF 1989

JOHN KIL

V

THE STATE

Waigani

Kidu CJ Amet Los JJ

26 March 1991

27 May 1991

26 June 1991

Counsel

Mr Steel for the Applicant

Mr Ame for the State

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:

1. Costs of his defence in the National Court: K4000

2. Expenses he incurred in prosecuting his appeal in this Court.

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

In criminal appeals to this Court costs are prohibited:

" (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:

" (2) The 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

(c) of and incidental to:

(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".

Expenses claimed under s 31 (2) are as follows:

A. Photocopyingi) Transcript of Evidence 64 pages X 50t @ pageK32.00ii) Appeal Book 103 pages X 5 Copies @ 40t per pageK206.00iii) Written Submission 63 pages X 5 Copies @ 40t per pageK126.00iv) List of Authorities exceeding 50 pagesK16.00Witness ExpensesA. Airfaresi) Gorai Mondo:May 25 1990: Hagen — Pom [Expected date of Hearing — 29 May 1990]K120.00June 1990: Pom — Hagen [Returned — Appeal Adjourned to 23rd JulyK120.00July 20 1990: Hagen — Pom (For Hearing) K120.00August 9 1990: Pom — Hagen [Return]K120.00ii) Andrew MoimeFebruary 1990: Hagen — Pom [Information in respect of Fresh Evidence]K110.001 June 1990: Pom — Hagen Return to POM for studies on his own accountK120.00iii) Vincent Auali27 May 1990: Hagen — Pom (expected trial on 29 May 1990) K120.001 June 1990: Pom — Hagen (Return when adjourned) K120.00iv) Alex Rangip:26 July Pom — Hagen: To serve Court Order on witness Peter Ua to attend CourtK120.0028 July 1990 — Hagen — Pom [Return]K120.00v) Saka Young:April 1990 — Hagen — Pom: Sept 1990: Pom HagenK230.0B. Accommodation, Allowance, Etci) Gorai Mondo:26 May 1990, 03 June 1990 I gave him K100.00 cash.K100.0022 July 1990 09 August 1990 I gave him K200.00 for allowances in the city while the hearing was on.K200.00ii) Saka Young:In August I gave him K100.00 cash while the hearing progressed.K100.00iii) 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 hoursK125.00b) 23 July 1990 9.30am — 3.00pm K50 @ hour 4 hoursK200.00c) 2 August 1990: 9.30 a.m — 12.00 pm 2 1/2 hours at K50.00 per hourK125.00TotalK2,830.00SummaryPhotocopyingK380.00Air Fares1,200.00Allowances450.00Appearances450.00TotalK2,480.00Photocopying 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 allwed. 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.

Section 613 is said to apply to this case. It provides as follows:

" (1) In this Section:

'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:

COSTS

Costs of Prosecution in Certain Cases

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.

Costs in Cases of Defamation

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...