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

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1990] PNGLR 57
• Date: 31 January 1990
• Year: 1990

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

National Court: Doherty AJ

Judgment Delivered: 31 January 1990

1 Criminal law—sentence—matters raised on allocutus—common law ruling on allocutus not authority s593 Criminal Code—mistreatment of remandees breach of Constitution s37(17) and Constitution s36(1)—rights under Constitution s57(1) may be enforced by lesser sentence than that normally warranted

2 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, s593—Constitution, s36(1), s37(17), s57(1), s58, s185.

3 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, s593—Constitution, s185.

4 CONSTITUTIONAL LAW—Fundamental rights—Enforcement of—By reduction in sentence—Where allegations of police brutality pending trial—Ad hoc rules formulated—Criminal Code, s593—Constitution, s36(1), s37(17), s57(1), s58, s185.

The Criminal Code (Ch262), s593, provides:

"s593. 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) S593 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 s593 of the Criminal Code, because such allegations raise possible breaches of constitutional rights under s36(1) and s37(17) of the Constitution which are enforceable under s57 of the Constitution, they may be taken into account on sentence.

(3) The unlimited power vested in the National Court under s57(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 s593 of the Criminal Code, the following ad hoc rules should be promulgated pursuant to s185 of the Constitution:

(a) allegations made by a defendant on a statement pursuant to s593 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...