State v Quati [1990] PGNC 122; [1990] PNGLR 57; N857 (31 January 1990)

N857

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

BAFE QUATI AND OTHERS

Lae
Doherty AJ

12 January 1990
31 January 1990

CRIMINAL LAW - Sentence - Allocutus - Statutory provision for - Common law principles not applicable - Allegations of police brutality raised - Relevance to sentence - Breaches of constitutional rights - Enforcement of by reduction in sentence - Ad hoc rules formulated - To be proved as facts - Four days’ notice required - Criminal Code, s 593 - Constitution, ss 36(1), 37(17), 57(1), 58, 185.

CRIMINAL LAW - Practice and procedure - Sentence - Application to reduce sentence for breach of constitutional rights - Ad hoc rules formulated - To be proved as facts - Four days’ notice required - Criminal Code, s 593 - Constitution, s 185.

CONSTITUTIONAL LAW - Fundamental rights - Enforcement of - By reduction in sentence - Where allegations of police brutality pending trial - Ad hoc rules formulated - Criminal Code, s 593 - Constitution, ss 36(1), 37(17), 57(1), 58, 185.

The Criminal Code (Ch No 262), s 593, provides:

"593. Convicted person to be called on to show cause.

Where an accused person —

(a) pleads that he is guilty of an offence; or

(b) on trial, is convicted of any offence,

the proper officer shall ask him whether he has anything to say why sentence should not be passed on him, but an omission to do so does not invalidate the judgment."

Held:

(1) Section 593 of the Criminal Code provides for a convicted person to make a statement before sentence in a manner which precludes application of the common law principles relating to allocutus.

(2) Where allegations of ill-treatment by police while awaiting trial are raised in a statement pursuant to s 593 of the Criminal Code, because such allegations raise possible breaches of constitutional rights under s 36(1) and s 37(17) of the Constitution which are enforceable under s 57 of the Constitution, they may be taken into account on sentence.

(3) The unlimited power vested in the National Court under s 57(3) of the Constitution "to make all such orders and declarations as are necessary or appropriate" for enforcing constitutional rights, includes power to reduce a sentence for proven breach of constitutional rights.

Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329 at 401, applied.

(4) In the absence of any rules of practice or procedure in respect of the taking into account of allegations of breaches of constitutional rights on a statement under s 593 of the Criminal Code, the following ad hoc rules should be promulgated pursuant to s 185 of the Constitution:

(a) allegations made by a defendant on a statement pursuant to s 593 of the Criminal Code alleging brutality or breach of constitutional rights and which the defendant raises in order to have those rights enforced by way of a lower sentence shall be open to proof and to challenge as if they are statements of fact;

(b) a defendant so seeking to enforce his constitutional rights shall give four days’ notice thereof to the State, which may cross-examine and call evidence in rebuttal.

Cases Cited

The following cases are cited in the judgment:

Agiru Aieni v Tahain [1978] PNGLR 37.
Constitutional Reference No 1 of 1977 [1977] PNGLR 362.
Kofowei v Siviri [1983] PNGLR 449.
Moses Aikaba v Tami [1971-1972] P&NGLR 155.
Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329.
R v Gombos (otherwise Gyugyei) [1965] 1 WLR 575; [1965] 1 All ER 229.
R v Taylor, Weaver and Donovan (1928) 21 Cr App R 20.
SCR No 5 of 1982; Berghauser v Aoae [1982] PNGLR 379.

Judgment prior to sentence

Two accused who were separately convicted of different charges, agreed to the hearing of matters arising from statements made pursuant to s 593 of the Criminal Code, in which allegations of brutality by police while awaiting trial were raised.

Counsel:

M Peter, for the State.
R Senge, for the accused.
Cur adv vult

31 January 1990

DOHERTY AJ.: The defendants Bafe Quati, Robert Sangi and Mallan Jimmy each raised various acts of violence or ill-treatment by the police on their allocutus. The defendants have been convicted of different charges but by consent I heard argument on these matters together.

Mr Senge, defence counsel, has referred me to two cases before the Chief Justice and Los J in which sentence was reduced or suspended where defendants were stripped naked and displayed before the public by either their fellow villagers or the police. These two cases are not disputed by Mr Peter for the Public Prosecutor. Both were notorious in that each happened in the public eye and it would be difficult to dispute them.

The allegations raised before me are different. They allegedly took place in the police cells on Sipaia and did not reach the notoriety of the previous cases.

In effect, the defendants, by their allocutus, are asking the court to take these facts into consideration in sentencing. We are approaching an undesirable situation in the administration of justice. I have heard some policemen say that the courts are too lenient and they let criminals off on technical points. Some police apparently sometimes take it upon themselves to punish offenders and the courts, in turn, are called upon to take this into account in assessing such punishment. This could lead to a vicious circle of ill-treatment and reduction in sentence that must be addressed.

The police are not authorised by their supervisors to ill-treat defendants but such actions do occur and have been subject to claims under s 57 of the Constitution: see Kofowei v Siviri [1983] PNGLR 449. On the other hand, such allegations are easy to make and hard to deny, particularly when it is many months before a defendant appears before this Court and all or most physical signs of ill-treatment are gone.

I do not consider it proper that such allegations should be accepted by a court without an opportunity being given to reply to them. I have therefore invited counsel to address the Court on this matter and ask two basic questions:

1. Can the court take allegations of ill-treatment by police into account in assessing sentence if it is raised on allocutus by the defendant; and

2. If so, what procedure should be adopted in considering these allegations?

The allocutus was originally a creation of common law described by Osborn in A Concise Law Dictionary (5th Ed) as:

"The demand of Court to a prisoner convicted of treason or felony on indictment as to what he has to say why the Courts should not proceed to pass the judgment upon him."

The original allocutus was a calling upon a prisoner convicted of a felony or treason to give him an opportunity to arrest judgment on a point of law. To quote from the judgment of R v Taylor, Weaver and Donovan (1928) 21 Cr App R 20 at 21:

"Anything a prisoner might say on being called upon before sentence could only refer to certain points of law, and could only be effective in arrest of judgment."

An example is given by counsel in that case of a pregnant woman convicted of murder; presumably because of the provision of the Sentence of Death (Expectant Mothers) Act 1931 in England. The allocutus is referred to in Halsbury (3rd ed), vol 10, par 800, in similar terms to those quoted above but I am unable to trace a reference to it in the 4th edition of Halsbury, possibly because the death sentence was repealed in England between the publications of the 3rd and 4th editions.

The statement in R v Taylor was confirmed by the English Court of Criminal Appeal in R v Gombos (otherwise Gyugyei) [1965] 1 All ER 229, where it was said (at 229):

"... the only reason for calling on a convicted prisoner in felony was to give him an opportunity of moving in arrest of judgment on a point of law."

This was referred to by Raine J in Moses Aikaba v Tami [1971-1972] P&NGLR 155 at 156-157 when referring to the strict common law status of the allocutus.

Hence the allocutus in common law permitted a convicted person to raise points of law only and was limited to trials for a felony or for treason. It was through practice, rather than law, that the defendant raised other matters.

The practice of asking a convicted person whether he has anything to say why sentence should not be passed on him is not an adoption of the common law in Papua New Guinea but is provided for in statute at s 593 of the Criminal Code Act, (Ch No 262) which states:

"593. Convicted person to be called on to show cause.

Where an accused person —

(a) pleads that he is guilty of an offence; or

(b) on trial, is convicted of any offence,

the proper officer shall ask him whether he has anything to say why sentence should not be passed on him, but an omission to do so does not invalidate the judgment."

The provision allows a convicted person to say "why sentence should not be passed on him ..." (my emphasis). This expression adopts the old common law words of address to the prisoner. It makes no reference to how sentence should be assessed or what matters the court should take into account in assessing sentence. The prisoner is under no obligation to answer but frequently does and raises matters such as his lack of prior conviction, provocation or other circumstances of the offence all of which are proper matters a court can consider in sentence and which the Supreme Court and National Court have ruled in various cases should be properly considered.

Strictly then, such statements are not, as Raine J aptly described them in Moses Aikaba v Tami an allocutus in the strict sense but are a plea in mitigation.

The Constitution protects the rights of persons awaiting trial at s 37(17) which states:

"All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person;"

and again at s 36(1):

"No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person."

Although it has not been argued before me, I have no doubt that stripping people naked in front of others is not treating them with respect for the inherent dignity of the human person and as such is a breach of both s 36(1) and s 37(17) of the Constitution. Similarly forcing people to eat raw kaukau, smashing their fingers with rifle butts and forcing them to eat tyres is also treatment that is inhuman and could amount to cruelty. Such treatment by police of persons deprived of their liberty, would amount to a breach of their constitutional rights.

Section 57 of the Constitution provides that a right or freedom shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament. There is not any other court other than the Supreme Court and the National Court prescribed by law.

Section 57(1) of the Constitution gives the courts a right to protect and enforce the interest of a person either on its own initiative or on application by any person.

In raising a breach of their rights on allocutus, it appears to me that the convicted defendants are raising breaches of the Constitution in relation to them and that the court has powers to protect and enforce those rights.

The Constitution provides for a remedy for breach of constitutional rights in both s 57 and s 58 of the Constitution. Section 58 provides specifically (at s 58(3)) for the award of damages against any person who committed, or was responsible for, an infringement of a person’s rights and for awards of such compensation or damages against the Government.

Section 58(1) of the Constitution specifically states that the section is in addition to, and not in derogation of, s 57. Section 57 includes power at s 57(3) that a court:

"... may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force)."

A court also has power under s 57(4) to allow a question concerning the effect or application of s 57 to be determined before it.

Section 57(3) refers to "all such orders and declarations as are necessary or appropriate ...". This section was considered by the Supreme Court in Constitutional Reference No 1 of 1977 [1977] PNGLR 362, where it was considered (at 36) to include a power to exclude an accused’s statement where a breach of s 42(2) had been found and the powers and jurisdiction of the court under s 57 were confirmed to be in addition to any other powers under the Constitution and in addition to the power to award compensation under s 58. The powers under the Constitution were stated by Andrew J in Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329 at 401, as follows:

"The enforcement of the Constitution is vested in the National Court at ss 22, 57 and 58. These powers are unlimited."

Since the powers vested in the National Court to enforce the rights under the Constitution are held to be unlimited by the Supreme Court, I consider that those powers include a power to reduce a sentence that might otherwise be properly passed upon a defendant who is found guilty of an offence. Other provisions and the right to claim compensation from a Government body such as the police, do not detract from the power of the National Court to assess sentence in the light of the treatment of the defendant while in custody awaiting trial.

Having considered that the court does have power to assess a breach of s 36(1) and s 37(17) of the Constitution in assessing sentence, I now turn to the second matter which is the procedure that should be adopted in enforcing this right.

Section 185 of the Constitution gives a court powers to give "ad hoc directions to remedy the lack or inadequacy" in respect of a matter of practice or procedure before it. It has been held (SCR No 5 of 1982; Berghauser v Aoae [1982] PNGLR 379) that this section does not apply where there are other procedures set out. Counsel has been unable to refer me to any procedures and I have been unable to find any procedures directly relating to the problem before us. I therefore consider this as an appropriate matter which the court should give ad hoc directions.

In his address, Mr Peter for the State said that the State has no right to reply to matters raised in an allocutus, that they cannot query what has been said and it cannot be challenged. The State indirectly, on occasions, challenges statements of a defendant by producing evidence of prior convictions. This, however, has a set procedure. In saying that the State cannot challenge what is said on allocutus, Mr Peter appears to refer to the common law situation. I am unable to find any legislation in s 593 of the Criminal Code or the other sections following it which make this specific provision. Such a suggestion was not considered in those cases dealing with allocutus before the National (formerly the Supreme) Court: Moses Aikaba v Tami, and Agiru Aieni v Tahain [1978] PNGLR 37.

As I have already stated, the common law rulings concerning statements made by a convicted person have no place in our courts. I consider that an allegation made by defendant on allocutus alleging brutality or breach of his constitutional rights and which the defendant raises in order to have those rights enforced by way of a lower sentence should be open to proof and to challenge as if they were statements of fact.

A convicted person seeking to have reduction of sentence for breach of a constitutional right under s 36 or s 37(17) of the Constitution must clearly indicate that he is seeking such a remedy, and the prosecution should be given a right to reply and rebut such an allegation. In order to consider and decide whether evidence should be addressed in rebuttal, notice should be given to the State that a defendant will raise a breach of his constitutional rights in order to allow evidence to be adduced in rebuttal. I take guidance from the Criminal Practice Rules and Practice Directions concerning such matters as alibis and bail and consider that at least four clear days’ notice should be given. The State should have a right to cross-examine a convicted person on the allegations made and the convicted person may call witnesses if he so chooses.

The foregoing will not apply where a convicted person does not seek some form of enforcement of his rights under either s 57 or s 58 of the Constitution.

Ruled accordingly

________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.