The State v Bafe Quati and Others [1990] PNGLR 57

• Jurisdiction: Papua New Guinea
• Judge: Doherty AJ
• Judgment Date: 31 January 1990
• Court: National Court
• Citation: [1990] PNGLR 57
• Year: 1990
• Judgement Number: N857

Full Title: The State v Bafe Quati and Others [1990] PNGLR 57

National Court: Doherty AJ

Judgment Delivered: 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...