Emma Ombu Karakabo v The Public Prosecutor of PNG

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 18 March 2015
• Citation: (2015) N5909
• Court: National Court
• Year: 2015
• Judgement Number: N5909

Full : OS NO 311 OF 2013; Emma Ombu Karakabo v The Public Prosecutor of Papua New Guinea and The Independent State of Papua New Guinea (2015) N5909

National Court: Cannings J

Judgment Delivered: 18 March 2015

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;...