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Wangiwa and Tomarit v Harangu [1985] PNGLR 205 (31 July 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 205 - Veronica Wangiwa and Dorothy Tomarit v Agatha Harangu 

[1985] PNGLR 205

SC297

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

VERONICA WANGIWA AND DOROTHY TOMARIT

V

AGATHA HARANGU

Waigani

Kidu CJ Pratt Woods JJ

31 May 1985

31 July 1985

INFERIOR COURTS - District Courts - Costs - Criminal jurisdiction - Simple offence - Dispositive orders made - No power to award costs - District Courts Act 1963, ss 138, 267(1)(a) - District Courts Act (Ch No 40), s 260.

COSTS - District Courts - Criminal jurisdiction - Simple offence - Dispositive orders made - No power to award costs - District Courts Act 1963, ss 138, 267(1)(a) - District Courts Act (Ch No 40), s 260.

The District Courts Act 1963, s 267(1)(a), (now Ch No 240, s 260(1)(a)) provides that “where the court makes a conviction or order in favour of the complainant it may in its discretion award and order that the defendant shall pay to the informant or complainant such costs as it thinks just and reasonable”.

Under the District Courts Act 1963, s 138, the court may, where a person is charged with a simple offence “without proceeding to conviction”, make orders either dismissing the charge or discharging the offender either conditionally or unconditionally.

Held

As an order made pursuant to the District Courts Act 1963, s 138, is not a conviction and may not arise on a non-criminal matter contained in a complaint, no order for costs can be made thereon pursuant to the District Courts Act 1963, s 267(1)(a).

Harangu v Wangiwa [1984] PNGLR 244, affirmed.

Cases Cited

Connington, Appeal of (1951) 68 WN (NSW) 223.

Dennis McEnroe v Felix Mou [1981] PNGLR 222.

Harangu v Wangiwa [1984] PNGLR 244.

Killian v Weaver [1970] SASR 107.

Oaten v Auty [1919] 2 KB 278.

R v London (County) Quarter Sessions Appeals Committee; Ex parte Commissioner of Metropolitan Police [1948] 1 KB 670.

Williams v Lewer [1974] 2 NSWLR 91.

Appeal

This was an appeal from a decision of Bredmeyer J, reported as Harangu v Wangiwa [1984] PNGLR 244.

Counsel

S Injia and J L Shepherd, for the appellants.

D Roebuck, for the respondent.

Cur adv vult

31 July 1985

KIDU CJ: The respondent brought private informations against the two appellants under the Summary Offences Act 1977, s 7(b). The appellants were proved to have committed the offence but were released without convictions being recorded against them pursuant to the District Courts Act 1963, s 138. They were also ordered to pay the respondent’s costs. It is this order that went on appeal to the National Court.

In the National Court the order for costs was quashed by Bredmeyer J: Harangu v Wangiwa [1984] PNGLR 244. His Honour held that the District Courts Act 1963, s 267(1)(a), did not apply to orders made under s 138 of the Act. It is from this decision that the appellants appealed to this Court.

The relevant provisions of the District Courts Act 1963 are in the following terms:

Section 138

“(1)    Where a person is charged before a court with a simple offence, and the court thinks that the charge is proved but is of the opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is expedient to inflict punishment, or other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either:

(a)      dismissing the charge; or

(b)      discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as is specified in the order.

(2)      When an order is made under the last preceding subsection, the order shall, for the purpose of:

(a)      revesting or restoring stolen property;

(b)      enabling the court to make orders as to restitution or delivery of property to the owner;

(c)      the payment of money upon or in connection with that restitution or delivery; and

(d)      an appeal against conviction, have the same effect as a conviction.” [My emphasis.]

Section 267(1)(a)

“(1)    The power of a court to award costs by a court are subject to the following provisions:

(a)      where the court makes a conviction or order in favour of the complainant, it may in its discretion award and order that the defendant shall pay to the informant or complainant such costs as it thinks just and reasonable.” [My emphasis.]

Counsel for the appellants submitted that there were two reasons why a District Court had power to order costs pursuant to s 267(1)(a) in cases where orders are made under the District Courts Act 1963, s 138:

(1)      An order made under s 138 is a conviction within the meaning of s 267(1)(a) and therefore enables a District Court to award costs to the person who laid the information.

(2)      An order made under s 138 is an order made in favour of a complainant within the meaning of s 267(1)(a) and therefore a District Court has the power to order costs in the complainant’s favour.

Mr Injia for the appellants did commendable research on this case especially in respect of the construction that should be given to the word “conviction” in s 267(1)(a). There is no doubt that in other jurisdictions the word has been interpreted to include cases of orders made under provisions similar to our s 138. But these cases are of no relevance if our statutory provisions are clear in their use of the term.

A s 138 order is quite clearly not a conviction for reasons based on what is contained in the provision itself:

(1)      It provides that in an appropriate case a magistrate may make certain orders “without proceeding to conviction”.

(2)      It also says that a person subject to an order under the section may be discharged on the condition, inter alia, that he will “appear for conviction ...” when called upon during the currency of the order.

(3)      The section also says that for the purposes of an appeal against conviction an order made thereunder has “the same effect as a conviction”.

There would not be any need for s 138 to provide that an order made thereunder is a conviction for purposes of appeal against conviction if in fact such an order is a conviction. And there would be no requirement to use words such as “... without proceeding to conviction” or require a person subject to an order under s 138 to “appear for conviction ...” if such an order was in fact a conviction.

There can be no doubt that s 267(1)(a) deals with costs with regard to two situations: where a person is convicted upon an information containing a criminal charge, and where an order is made upon a matter contained in a complaint, the latter clearly concerning a non-criminal matter. It is true that the District Courts Act 1963, s 5, does say that in the Act “complainant includes informant” but the same section says first that this is subject to any contrary intention in the Act, and secondly it says that “information” includes a complaint for an offence but not any other complaint. The only other complaints apart from those for offences are non-criminal ones. So in my view, in s 267(1)(a) “information” is not a “complaint” nor is “informant” a “complainant”. There is a further reason for saying this and that is that the two terms are used in the same section and it is clear that a contrary intention is shown.

A conviction is an order made by a court. In s 267(1)(a), therefore, if it is the legislative intention to use “conviction” as meaning an “order” then a redundancy situation exists in relation to the use of the word “conviction”.

From the foregoing I conclude that s 267(1)(a) covers a conviction on a criminal information/complaint and an order upon a civil complaint. There is no conviction when an order is made under s 138, therefore no costs can be ordered by a District Court. As the matter was one in relation to a civil complaint or information, that part of s 267(1)(a) has no application either in an order made under s 138.

I would dismiss the appeal.

PRATT J: This appeal arises from a reversal of a magistrate’s decision by Bredmeyer J concerning the award of costs in a private prosecution at the behest of the two appellants against the respondent charging use of insulting words on 10 April 1984: see Harangu v Wangiwa [1984] PNGLR 244. The learned magistrate, after conducting a trial, brought in what was found by the learned appeal judge to be a verdict of “proven” but no conviction recorded. In addition, he imposed a good behaviour bond on the defendant/respondent. The respondent during the magistrate’s proceedings had obtained the services of someone from the University law faculty (I am not sure whether a fully admitted practitioner or student), whilst the two complainants obtained the services of a private practitioner who lodged a claim for costs under the District Courts Act 1963. The magistrate awarded costs against the defendant in the sum of K420. It would be a miscarriage of justice, said the magistrate, if the two complainants were not reimbursed the legal costs incurred to bring the matter to court because of the injury which they suffered. This ground for exercise of the discretion is clearly quite wrong and cannot be a heading which should have any bearing on the operation of the discretion to award costs. However, this aspect is only ancillary. The learned appeal judge was of the view that there was no power in the magistrate to award costs where he had made a finding under the District Courts Act, s 138, and it was against this finding that the complainants have now appealed to the Supreme Court.

I have been assisted a great deal by the submissions of both counsel in this appeal. The end result however underlines the fact that of all the authorities cited not one deals with legislation exactly similar to our own. Indeed, the closest we come to our own legislation is mentioned in Killian v Weaver [1970] SASR 107 and the New South Wales decision, Appeal of Connington (1951) 68 WN (NSW) 223. Three other quite helpful decisions relied upon by both counsel are Oaten v Auty [1919] 2 KB 278 at 289; Williams v Lewer [1974] 2 NSWLR 91 and R v London (County) Quarter Sessions Appeals Committee; Ex parte Commissioner of Metropolitan Police [1948] 1 KB 670.

The award of costs by a magistrate’s court must be made squarely within the four corners of the relevant legislation. There can be no other source. In the present instance there is no argument that the appropriate section for consideration before Bredmeyer J as well as this Court is s 267(1)(a), which reads as follows (as the Act under discussion before the magistrate and the judge of the National Court was unrevised Act No 19 of 1964, I will continue to refer to the old section numbers):

“(a)    Where the court makes a conviction or order in favour of the complainant, it may in its discretion, award and order that the defendant shall pay to the informant or complainant such costs as it thinks just and reasonable ....”

The whole thrust of the appellants’ submission in this case is that the word “conviction” has been used over the years in a number of different senses and that the use of that word in the section above encompasses the situation referred to in s 138 where a conviction is not recorded but the charge is found proved. In short, although no conviction is actually entered under s 138 it is nevertheless a conviction for the purpose of awarding costs under s 267(1)(a). Alternatively, if the court were not prepared to hold that a verdict under s 138 could be brought with the term “conviction”, the decision and subsequent orders nevertheless are orders in favour of the complainant and therefore “orders” within the meaning of this section.

Dealing with this “order” aspect first, I cannot agree with appellants’ counsel that the phrase “order in favour of the complainant” can be used to cover a s 138 order. The draftsman in the later stage of this section has distinguished between “an informant or complainant” and, in my view, he has achieved a like result earlier in the section by using the words “a conviction or order in favour of the complainant”. The word “conviction” presupposes the existence of an informant and it would be quite unnecessary to place that word in the earlier stage of the section whilst it is obviously necessary by the structure of the sentence to place it in the latter part of the section. He could have, if he wished, inserted in the earlier part of the section, that where the court makes a conviction in favour of an informant or an order in favour of the complainant; but that would be an improper use of language because a conviction should not be regarded as being made “in favour” of anyone. I see no reason for departing from the view which I expressed in Dennis McEnroe v Felix Mou [1981] PNGLR 222 that the District Courts Act clearly distinguishes between informations and complaints and uses the former for criminal proceedings and the latter for civil proceedings. Nor shall I repeat here the reasoning.

It is however, when one comes to the wording of s 138 itself that the appellants find the greatest difficulty. First, at the end of the first paragraph in subs (1) we see quite clearly that “without proceeding to conviction” the court may either dismiss the charge or order the entering into a recognisance. I think to say that the word “conviction” is used in one way in this section and another way in s 267 is asking the Court to engage in an exercise which defies logic and commonsense rather than liberal interpretation.

I agree with the point made by the Chief Justice during argument that the reference “to appear for conviction” at some future time under s 138(1)(b) presupposes there has been no conviction at least until that future date.

Any remaining doubt is completely put to rest when one goes to s 138(2), in which four specific courses are made available to a court which without this particular section, would normally follow only after a conviction had been recorded. If a party has been convicted of theft one could naturally expect an order for restitution or compensation to be made. Likewise in view of the uncertainty expressed in several other jurisdictions as to whether an order under s 138 is “a conviction” for the purpose of appeal, the legislation now establishes that for such purpose an order under s 138 does amount to a conviction. As was said by Bredmeyer J during his judgment under appeal, one would certainly have thought that in treating the finding of the court as amounting to a conviction for the purposes set out in s 138(2), the legislature would have added a similar section to cover costs if that had been its intention. I agree with his Honour there is no doubt in this Act. The exclusion of the costs provision from this section clearly indicates that there is no intention by the legislature to treat discharge under s 138 as a conviction for the purposes of awarding costs where a recognisance has been ordered under s 138(1)(b).

In view of the wording of s 267(1)(b) in contrast to the express reference in s 138(1)(a) to the phrase “dismiss the charge”, it may perhaps be suggested that when a magistrate does not impose a recognisance but simply dismisses the charge then he may award costs in favour of a defendant. The matter was not argued in this case as the magistrate’s order was made under s 267(1)(a) and not s 267(1)(b). Further the application before us seeks to have an order for costs made in favour of the unsuccessful complainants rather than a successful defendant. It seems to me that the above suggestion would have much merit.

In closing I would draw the attention of magistrates to the importance of stating precisely what has been done by the court under s 138. Certain consequences will flow if the charge is proven and the recognisance has been ordered to be entered into. Those consequences may well be different if in fact the records show that the charge is proven and that it is dismissed. The matter of whether costs can be awarded or not in such circumstances is not the subject of this decision. But again, the area indicates the need for accuracy and clearness by the magistrate.

WOODS J: This appeal is from a decision of Bredmeyer J reversing a magistrate’s awarding of costs in a private prosecution: see Harangu v Wangiwa [1984] PNGLR 244.

After the trial on an information for using insulting words contrary to the Summary Offences Act 1977, s 7(b), the magistrate found the charges proved and although he did not use the words of the District Courts Act 1963, s 138, or mention the section he apparently applied that section and did not record a conviction but imposed a good behaviour bond. The magistrate then awarded costs against the defendant.

The defendant appealed against this award of costs and the appeal judge found that the magistrate had applied s 138 and further found that the District Court had no statutory power to award costs against the defendant where the result was a s 138 order.

The power to award costs in this situation before the District Court is found in s 260(1)(a) of the District Courts Act (Ch No 40) however, I will refer to the unrevised Act No 19 of 1964 section numbering of s 267(1)(a) as referred to by the appeal judge. That section reads as follows:

“The power of a court to award costs and the award of costs by a court are subject to the following provisions:

(a)      where the court makes a conviction or order in favour of the complainant, it may in its discretion award and order that the defendant shall pay to the informant or complainant such costs as it thinks just and reasonable ....”

It has been submitted for the appellants that the word “conviction” in that section includes the situation referred to in s 138 where the charge is found proved but a conviction is not recorded. Thus although no conviction is entered it is submitted that it is a conviction for the purposes of costs under s 267(1)(a). Alternatively, if it was held that action under s 138 was not a conviction, nevertheless the orders made were orders in favour of the complainant within the meaning of s 267(1)(a).

The District Court is a creature of statute and its powers must be read in the legislation creating it. The power to award costs on a criminal information is in s 267(1)(a) and that section alone. A criminal information has an informant and a defendant.

A criminal information does not result in an order in favour of the complainant because there is no complaint, that is a civil proceeding. Rather it has a conviction or the information is dismissed or the magistrate acts under s 138. If there is a conviction there is power in s 267(1)(a) to award costs; if the information is dismissed there is power in s 267(1)(b) to award costs. But there is no provision if the magistrate acts under s 138, because there is no conviction nor a dismissing of the information. A reference to an order in favour of the complainant is referring to costs in civil proceedings.

Any submission that action by the magistrate under s 138 should be deemed for the purpose of s 267(1) to be a conviction is defeated by the fact that the Act specifically provides in s 138(2) that for certain purposes an order made under s 138(1) shall have the same effect as a conviction, but makes no mention of, for the purpose of costs. The legislation therefore specifically provides for s 138 to have the same effect as a conviction for certain listed purposes but not for costs. The legislature clearly therefore did not intend an order under s 138 to lead to an award of costs.

I therefore must agree with the appeal judge that there is no doubt in this Act. We were referred by counsel to decisions from other jurisdictions but unfortunately they all deal with legislation different to ours. I agree with the findings of the appeal judge and I would dismiss the appeal.

Appeal dismissed

Lawyer for the appellants: N Kirriwom, Public Solicitor.

Lawyer for the respondent: Derek Roebuck.