A defendant who is acquitted after months of adjournments and a day of trial naturally asks who pays for the lawyer. The Act’s answer is deliberately guarded.
The provision
(1) Notwithstanding section 260(1)(b), the Court shall, before making an order for costs against an informant, consider all relevant circumstances and in particular, where appropriate, (a) whether the prosecution acted in good faith in bringing and continuing the proceedings; (b) whether at the commencement the prosecution had sufficient evidence to support a conviction; (c) whether the prosecution took reasonable steps to investigate any matter that came to its attention and suggested the defendant might not be guilty; (d) whether the investigation was conducted in a reasonable manner; (e) whether the evidence was sufficient but the information was dismissed on a technical point; (f) whether the information was dismissed because the defendant established that he was not guilty; (g) whether the defendant’s conduct in relation to the act charged and to the investigation and proceedings was such that a sum should be paid towards the cost of his defence.
(2) There shall be no presumption for or against an award of costs.
(3) A defendant shall not be awarded costs under section 260(1)(b) or any other Act by reason only of the fact that (a) he has been acquitted or discharged; or (b) an information has been dismissed or withdrawn.
How the Court approaches it
The matters set out in section 260A must be considered first when deciding whether to exercise the discretion under section 260(1)(b); section 260A applies whether the information is dismissed or struck out; and it applies to all informants, not only police.
— National Court, PGNC 63 (1993)
The Manual adds that the record should show the magistrate turned his mind to the relevant parts of section 260A before making the order, and that failure to consider the full list may nullify the order on appeal. So a defendant seeking costs should address each factor in submissions, with evidence where the factor turns on what the police knew or did. The factors divide into three questions.
| Question | Factors | Points for costs |
|---|---|---|
| Should the charge have been laid and continued? | (a) good faith; (b) sufficient evidence at the start | Charge laid on a bare complaint with no statements; continued after the complainant recanted |
| Was the investigation reasonable? | (c) steps to investigate exculpatory matters; (d) reasonable manner | Alibi witnesses named at arrest never interviewed; obvious documents never obtained |
| Why did it fail, and how did the defendant behave? | (e) technical dismissal; (f) proved not guilty; (g) defendant’s conduct | Points against: dismissal for the informant’s absence on one day; defendant who lied to police or invited suspicion |
Typical outcomes
Costs are most likely where the prosecution should never have been brought or was pursued after it was plainly hopeless: factors (a), (b) and (f). They are least likely where the case was properly brought and failed on the evidence at trial, where the dismissal was under section 124 for the informant’s non-appearance, or where the defendant’s own conduct brought suspicion on himself. A dismissal on a technical point under factor (e) counts against costs, because the evidence was there. The Manual notes that withdrawal, dismissal and acquittal do not automatically entitle the defendant to costs, and that there is no presumption either way.
Who pays
Section 260(1)(b) orders the informant to pay. In a police prosecution the informant is the arresting officer named on the information, and the order is against that officer personally. Getsi shows that an employer or government body that was never a party cannot be ordered to pay. Whether the State reimburses its officer is a matter between them. The order is a money order enforceable under section 260(1)(d) by execution, though execution against a police officer’s personal property is rare and the sum is limited by the scale.
How much
Costs are capped by Schedule 4 of the Regulation. Item 15 limits fees on an information to the highest scale of items 1 to 11: broadly K55 for drawing a document, K200 for getting up the case for trial, K60 for the first day’s attendance and two-thirds of that for each later day, plus out-of-pocket expenses and witnesses’ allowances under Schedule 5. A defendant who paid a private lawyer several thousand kina will recover a few hundred at most. The sum must be fixed and written into the order of dismissal under section 260(1)(c). See costs in the District Court.
Indictable charges
The Act does not empower a Court to order the complainant to pay the defendant’s costs on an adjudication of dismissal of a charge of an indictable offence. So a defendant discharged at committal under section 95, or acquitted after a summary trial of an indictable offence under section 420 of the Criminal Code, gets no costs in the District Court, however weak the case was. The remedy for a groundless indictable charge, if any, is a civil action for malicious prosecution in the National Court.
Civil complaints
Section 260A applies only to informants. A civil complainant whose complaint is dismissed faces the ordinary discretion under section 260(1)(b) without the seven factors, and costs will usually follow the event, within the scale.
On appeal
A refusal of costs, or an award made without considering section 260A, is a decision that can be appealed under section 219, and the National Court may substitute its own order under section 230(1)(c). Costs of the appeal itself are dealt with in costs of an appeal.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.